January 21, 2007
FISA, NSA, and Executive Authority
Over at Q&O, Dale Franks continues to argue that the recent move to bring the NSA Terrorist Surveillance Program under FISA supervision amounts to a surrender of the President's claim to Article II authority.
This argument continues to make absolutely no sense to the editorial staff if for no other reason than that it has been flatly contradicted by the administration. But if that weren't enough, there are significant logical reasons to doubt it; not the least of which are that one can assert a power yet for political or pragmatic reasons find it convenient not to exercise that authority in one or more real world situations. Such a decision does not bar one (nor, we might add, subsequent administrations) from ever exercising that authority again. It is as if one possessed a sledgehammer, yet decided the far less intimidating ball peen hammer was the right tool for a particular purpose. One is hardly barred for all eternity from ever again using the more forceful instrument. It is just that in this case, the task could be accomplished with less force and less risk of collateral damage using a less blunt instrument.
On close examination, Dale's argument fails on several points:
I think that, for my part, the problem is that the Bush Administration has been arguing:
1) Such searches were absolutely vital to national security.
2) That the President has the inherent wartime authority to conduct such warrantless searches, because it is an inseparable part of his warmaking powers, which kicked in when the AUMF was passed.
3) No statutory limitation, such as FISA, can repeal that inherent authority.
4) The FISC itself could not be used, because its procedures for obtaining warrants was unsuitable.
5) In any event, FISA doesn't apply because there is a generalized power to conduct warrantless searches on communications leaving and entering the country, much in the same way as the Customs Service has the power to conduct—and routinely does conduct—warrantless searches on persons or property entering or leaving the country.
Now, even if we assume that Mr. Kerr is correct, and the FISC has revised its procedure to allow the use of anticipatory warrants, and the speed with which they can be obtained has been increased, the fact that item 4 above has now changed does not approach the other arguments the Administration put forth. The fact that the Administration has abandoned the other claims indicates to me that they were never sincere in those arguments. They were simply window dressing to disguise the Administration's unhappiness with the FISC procedures.
This argument doesn't stand up well to the historical record. From the Justice Department's briefing (via PW), the Justice Department both reaffirms the President's assertion of his Article II authority and states that this program has been in the works for two years, which rather makes a hash of "the speed with which this argument has been surrendered":
QUESTION: What has changed here? What has changed that allows you now allows the FISA court to approve this on whatever basis?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I don’t know that anything has changed. First of all, let me say that we continue to believe as we’ve always said and as we’ve explained at length that the President has the authority to authorize the terrorist surveillance program, that he has that authority under the authorization for the use of military force and under Article II of the Constitution. That’s not changing.
These orders, however, are orders that have taken a long time to put together, to work on. They’re orders that take advantage of use of the use of the FISA statute and developments in the law. I can’t really get into developments in the law before the FISA court. But it’s a process that began nearly two years ago, and it’s just now that the court has approved these orders.
Now for a trip in the wayback machine. What could have happened two years ago to trigger this process? According to NY Times reporters James Risen and Eric Lichtblau, the Times met with the administration to talk about a classified wiretapping program: a program the Times unilaterally chose to "declassify" one year later. So it would seem that, warned that a confrontation was inevitable, the administration began working to fix the timeliness problems described here.
And as this post from SCOTUSblog makes clear, it's a good thing the administration acted promptly:
The Sixth Circuit is scheduled to hold a hearing Jan. 31 on a broad challenge to the prior surveillance program, in the wake of a federal District Court order striking down that program as unconstitutional.
With the surveillance program now apparently within the supervisory control of the FISA Court, the prospects for Supreme Court review of any challenges to it appear to have declined. Under the existing FISA law, only the government is authorized to pursue any appeals from the FISA Court, either to the mid-level appeals court known as the Foreign Intelligence Surveillance Court of Review, or to the Supreme Court. No one whose communications are monitored by the program has any right to appeal to make any challenge; such individuals or groups, in fact, are not told that their communications have been monitored. The FISA Court considers only one-sided requests for surveillance -- those submitted by the Justice Department. Those orders are never made public.
One issue that now arises is whether the existing case in the Sixth Circuit will go forward, and whether a long list of other challenging lawsuits in a federal District Court in California and in an interim appeal in the Ninth Circuit will proceed. Part of the reason that those courts were involved is because the government had previously bypassed the FISA Court in conducting the so-called Terrorist Surveillance Program.
All of which begs the question: does anyone bother to think?
As we remarked before, we are fighting a larger war here and there are more important things at stake than petty partisan warfare with the grand prize being the right to say, "I'm the boss of you". We, for one, are glad the administration seems capable of seeing this issue as something more than some sort of Article II pissing contest. What possible difference does it make if the administration agrees to run the program under judicial purview, so long as its integrity is not compromised? How is that not a gain, rather than a loss, for the rule of law and democratic governance?
The larger principle here is this: the President's Article II authority is a sledgehammer of which citizens in a democratic republic are rightly wary. It should be used sparingly and only in those situations where there is no other reasonable means of accomplishing the same end. If the President chooses to negotiate a mutually acceptable solution with the FISA courts for whatever reason: be it to increase the perception that his administration is doing business openly and within the law, to free it from fighting a battle in the Courts that can only tie up valuable resources during wartime which need to be devoted elsewhere, or to safeguard a valuable program from further exposure in the media, this should be a cause for rejoicing rather than consternation on both the right and the left. Conservatives do him (and this nation) no favors by complaining that he "let them down" simply because he had the foresight to be a few steps ahead of the opposition for once.
And those on the Left who are still criticizing the program have a lot of soul searching to do, for the adminsitration's deft move has neatly exposed their hypocrisy. They refused to amend the FISA law when Senator Arlen Specter gave them the chance last year. If they didn't care for his bill, they could have countered with legislation of their own.
Instead they demanded that the White House bring TSP under FISA supervision.
What will they do now that it appears the White House has been negotiating with FISA for TWO YEARS to eliminate the timing roadblocks that threatened national security and do that very thing? Short answer: if they're honest, they'll have to admit that oversight was never the issue.
They'll have to admit that what they object to is the very existence of the TSP program itself.
And then they'll have to explain why, if they believe the program itself is unconstitutional, the FISA court has upheld it and they haven't put their money where their mouths are and cut the funding. But you see there's just one little problem with all of this: the average American just doesn't think all that much about these issues and our so-called "investigative" journalists in the media aren't about to ask any of these questions.
Only in America: asymmetrical journalism at its finest.
Posted by Cassandra at January 21, 2007 10:30 AM
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Ah yes, the difference between a political victory and the judiciary setting something in stone. Something people tend to miss. Of course, when it's what they believe of course it is right and so and anyone who contradicts is a moral cretin.
And what, no mirable dictu or other Phrench in this? Have The Husband Unit check for a fever.
Posted by: ry at January 22, 2007 11:46 AM