United States Senate Committee on the Judiciary
"Wartime Executive Power and the NSA's Surveillance Authority II"
February 28, 2006

Honorable James Woolsey
Vice President Global Strategic Security Division
Booz Allen Hamilton

Thank you, Mr. Chairman, it's an honor to be asked to be with you.

Since we're in a war I would start with the enemy, and I will summarize briefly the first several pages of my testimony to say that two fanatic, theocratic, totalitarian movements in the Middle East have chosen in the last few years to be at war with us. One from the Shiite side of Islam, one from the Sunni side of Islam.

They are manifested in shifting alliances tactically, and doctrinal differences that can sometimes be submerged in alliances of convenience. They have two somewhat different objectives. One wishes to kill as many people as possible in order to bring the Mahdi (ph) back and hopefully have an end to the world as soon as possible. The other would only like to fold us into a Khalifate someday that would rule the world under Sharia. We may shake our heads in puzzlement at these types of objectives, but we've learned with the thousand year Reich and with world communism that we need to take totalitarianism and its views seriously.

Unlike the Cold War, we have a number of assumptions that we have to operate under today that are fundamentally different. Far from fighting a single, rigid empire, our enemies have a host of difference relationships with government. Containment and deterrence has very little to do with them. Unlike the Soviets in the Cold War they are fantastically wealthy from oil. Unlike the Soviets in the Cold War their ideology is not dead, it is religiously rooted, it's central to their behavior.

Unlike the Cold War, we are not safe behind our shores. The Chief of Strategy, Mr. Ahmadinejad, who is close to Hezbollah, says that he knows of the 29 sensitive sites in the U.S. and the west which he has spied out and is ready to attack in order to, quote: "End Anglo-Saxon civilization."

Unlike the Cold War, our intelligence requirements are not just overseas. We live on the battlefield, and we need to be able to map electronically that battlefield. Unlike the Cold War, domestic terrorism in this country cannot solely be dealt with by criminal law. It is difficult to understand how one deters through criminal law individuals who want to die themselves while killing thousands of others.

Unlike the Cold War, security can come more into conflict with liberty than we wish would be the case. And unlike the Cold War, and perhaps most importantly, the operation of Moore's law over the course of the last two to three decades has fundamentally changed our world. Throwaway cell phones and internet web sites and chat rooms are now available to terrorists. This is no longer 1978 when phones are plugged into the wall and the internet was just a gleam in the eye of a few people at the Defense Advance Research Project Agency.

I believe that the inherent authority of the president under Article II, under these circumstances, permits the types of intercepts that are being undertaken. I believe that's true because the country has been invaded, albeit of course not occupied, and defending against invasion was at the heart of the president's Article II authority for the founders.

We run a serious risk of being attacked again, both Bin Laden and Ahmadinejad and Abbasi and indirectly Hezbollah have so threatened. The threat from Bin Laden is augmented by a fatwa from a Saudi religious leader that threatens the use of nuclear weapons.

Since the battlefield is in part, sadly, here at home, I believe that what we have to do is think very hard about how to have a system that can provide a check and balance against the type of electronic mapping of the battlefield that I believe is necessary. The one spy at a time surveillance systems of the Cold War, including FISA, through courts, are not designed to deal with fast moving battlefield electronic mapping in which an al Qaeda or a Hezbollah computer might be captured which contains a large number of email addresses and phone numbers which would have to be checked out very prompted.

An attorney general on a 72 hour basis or a FISA court simply cannot go through the steps that are set out on pages 9 and 10 of my testimony in time to deal with this type of a problem. In my judgment, oversight is needed. I generally endorse the support that Judge Posner submitted to the Wall Street Journal in an op-ed a couple of weeks ago with one modification, which is in the testimony, and which I don't have to describe.

Thank you, Mr. Chairman.