Author: Robert F. Turner
About the Author: Mr. Turner is a constitutional scholar who served as acting assistant secretary of state for legislative affairs in 1984-85.
The author of Stag's Leap makes no claim to the IP contained in this post that is outside of any separate commentary that may be added. This article is posted here on Stag's Leap strictly for discussion and education purposes.
From the Beirut Bombing to 9/11
Liberal assaults on the executive branch have made us vulnerable.
In part because it did, Osama bin Laden concluded that America could not accept casualties and ordered the 9/11 attacks. Similar congressional usurpation of presidential power over foreign intelligence played an important role in guaranteeing the success of those attacks.
This story goes back at least to November 1973, when congressional liberals pushed through the War Powers Resolution -- which claimed congressional control over all use of military force abroad -- overriding a presidential veto. (All seven American presidents since then have shared the view that that statute is unconstitutional.)
President Reagan sent the Marines to Beirut as part of a multinational peacekeeping operation that included forces from Great Britain, Italy and France. The purpose was to help maintain peace while the feuding factions tried to negotiate an end to years of strife. Nevertheless, Democrats -- particularly in the Senate -- decided to turn the deployment into a partisan issue in preparation for the 1984 elections. They demanded under the War Powers Resolution to know exactly when the troops would return home.
Gen. P.X. Kelley, the commandant of the Marine Corps, respectfully cautioned the Foreign Relations Committee that a partisan debate about placing time limits on the deployment would encourage hostile forces inimical to the "life and limb of the Marines." Senior Democrats denounced this warning as a "ludicrous argument" designed to "intimidate the Congress and to frighten the American people."
Referring to the assertion that the Senate debate would encourage attacks on Marines, Sen. Biden said, "My response to that is that may be true . . . but until we . . . invoke the War Powers Act," we are always going to be "beaten over the head by every administration that says 60 days is not enough time." In the end, only two Senate Democrats voted on Sept. 29, 1983, to "authorize" the continued deployment.
Syrian Foreign Minister Abdel Halim Khaddam announced during the congressional debate that America was "short of breath." And as reported in U.S. News & World Report, American intelligence intercepted a message between two radical Muslim militia groups that read: "If we kill 15 Marines, the rest will leave." At sunrise on the morning of Oct. 23, 1983, a terrorist truck bomb crashed into the Marine Headquarters in Beirut and exploded. Early the following year, the surviving Marines were withdrawn.
During a 1998 interview with an ABC News reporter in Afghanistan, Osama bin Laden declared that this withdrawal proved Americans can't accept casualties. It was obviously a consideration in his decision to order the 9/11 terrorist attacks. But the conventional wisdom, that those deadly attacks resulted from "an intelligence failure," doesn't tell the full story.
A major reason we failed to detect the 9/11 attacks in advance was because, beginning in the 1970s, Congress launched a major public attack on the intelligence community. Mr. Biden, for example, was one of 17 senators to vote on Oct. 2, 1974, to make all covert operations (even espionage in some cases) unlawful. In 1986, he bragged in a New Republic interview that he'd personally blocked planned covert operations during the Reagan administration simply by threatening to leak them. (That statement calls to mind John Jay's observation, in Federalist No. 64, that because Congress could not be trusted to keep secrets, the Constitution left the president "able to manage the business of intelligence as prudence might suggest.")
In 1978, Congress continued its intrusion into presidential powers by enacting the Foreign Intelligence Surveillance Act (FISA), making it a felony for intelligence professionals to monitor communications between foreign terrorists abroad and individuals within the U.S. without first getting a special warrant. But in a unanimous opinion, the appellate court established by FISA observed that every court to decide the issue had held the president has "inherent authority" under the Constitution "to conduct warrantless searches to obtain foreign intelligence information," adding: "We take for granted that the President does have that authority . . ."
Congress failed to anticipate in FISA the dangers posed by a terrorist like Zacarias Moussaoui -- which is why FBI agents were unable to examine the contents of Moussaoui's laptop computer and perhaps prevent the 9/11 attacks. Michael Hayden, then Director of the National Security Agency (NSA), later expressed his "professional judgment" that had these legal constraints (FISA) not existed "we would have detected some of the 9/11 al Qaeda operatives in the United States" prior to the attacks, and "we would have identified them as such."
As we pause today to honor the memory of the 241 brave young Marines who lost their lives in 1983, Americans should vow that political partisanship should never again be permitted to endanger our country and its armed forces.