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Date: Sat, 21 Jan 2006 22:33:49 -0500
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From: "R. A. Hettinga"
Subject: [Clips] Constitutional Spying
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http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=6533&R=EAD93679A
Weekly Standard
Constitutional Spying
The solution to the FISA problem
by Gary Schmitt
01/02/2006, Volume 011, Issue 16
The Foreign Intelligence Surveillance Act (FISA) is a chronic problem. The
controversy over President Bush's decision to bypass FISA warrants in the
electronic surveillance of al Qaeda operatives has highlighted the act's
limitations. But FISA has been a problem ever since it became law in 1978.
Congress passed and President Carter signed the bill regulating electronic
surveillance for foreign intelligence collection in the wake of an
extended, post--Watergate debate about the so--called "imperial
presidency." The debate was given added urgency by reports and official
investigations of indiscriminate snooping in this country by elements of
the U.S. intelligence community. However, like so much else from that
period, the broad arguments about the president's role in the
constitutional order were wrong, and the laws designed to correct real
problems created a new set of problems.
One irony of today's debate is that so many liberals are now defending
FISA. Previously, a common complaint from the ACLU and others was that the
secret federal court that issues warrants for foreign intelligence
surveillance in this country had become a "rubber stamp" for the executive
branch. Out of the thousands of applications put forward by the Department
of Justice to the panel over the years, only a handful had ever been
rejected. Instead of a check on executive authority, the court had become
complicit in its activities-or so it was said.
And to a certain extent that has been the case. Yet the reason for the high
percentage of approvals has less to do with deference to executive judgment
than with FISA's standard for obtaining a warrant when it involves
surveillance of an American citizen or an alien residing legally in the
United States. Before the government can get a warrant, the Justice
Department must put together a case to present before the court stating the
"facts and circumstances relied upon . . . to justify [the attorney
general's] belief that the target is an agent of a foreign power" or
"engages . . . in international terrorism." And the FISA judges can only
grant the warrant when "there is probable cause to believe that the target"
is engaged in espionage or terrorism. In short, before the government can
collect intelligence on someone by breaking into his house or tapping his
phones, it had better already have in hand pretty persuasive evidence that
the person is probably up to no good. FISA is less about collecting
intelligence than confirming intelligence.
This shouldn't be news. The inability of the FBI to aggressively pursue
suspected foreign agents on U.S. soil was well aired in the 9/11
post--mortems, especially the notorious case of the "20th hijacker," French
Moroccan Zacarias Moussaoui. His laptop was in the possession of FBI agents
in Minneapolis in August 2001 but, for want of a warrant, was not searched
before 9/11.
Though much of the court's workings are classified, there are known
instances in which FISA's "probable cause" standard prevented the
government from getting warrants where common sense made it perfectly clear
surveillance was justified. Notably, there was the case of Wen Ho Lee, the
Chinese--American scientist who worked at the Los Alamos nuclear weapons
lab. Lee downloaded nuclear codes and databases from the lab's secure
computers. "In the wrong hands," his boss noted, such information could
"change the global strategic balance." Despite this, and the fact that Lee
had access to a warhead design that had leaked to the Chinese, had visited
China in the period when Beijing apparently acquired the data, and had
obvious friendly ties to Chinese nuclear scientists, it was judged that a
FISA warrant could not be obtained. It didn't matter how grave the damage
might be if Lee was actually engaged in espionage; what mattered was the
government had no real evidence that Lee was a likely spy.
In retrospect, the fastidiousness shown in the Lee and Moussaoui cases
seems ludicrous, and some politicians and experts who have an interest in
saving FISA have argued that the law was read too narrowly in both
instances. Yet the law is what it is. And certainly it is these same
politicians and experts who would be the first to complain about the
government not abiding by FISA's standards should a case come to light
involving dubious surveillance. Contrary to what many might think, the FBI,
NSA, and the permanent bureaucracy at the Department of Justice have
supported FISA primarily because it provided a line that they believed
protected their organizations from the kinds of public trouble, political
second--guessing, and congressional investigations that plagued them in the
1970s. And, for the most part, it has-although at an obvious cost.
More broadly, the law rests on a shallow understanding of the
Constitution's system of separated powers. FISA's supporters believe that
life without the law would lead to unfettered executive power and violate
the system's guiding principle of "checks and balances." What the
Constitution demands, in their view, is a two--key approach to public
authority: No branch gets to act in key instances without concurrent
approval from a second branch.
That approach, however, conflates the Constitution's scheme of "checks and
balances" with its more fundamental system of separated powers. Although
some checks do exist-like the president's qualified veto over legislation,
or the Senate's role in confirming nominations-they are not the norms for
government action but the exceptions. Far more common is for the president,
Congress, and the courts to do their own thing, each interacting with the
others indirectly and rarely concurrently.
And that is the way it was meant to be. Justice Brandeis's famous line that
the "doctrine of separation of powers was adopted by the Convention of
1787, not to promote efficiency but to preclude the exercise of arbitrary
power" is at best a half truth. After a decade of living under the Articles
of Confederation, and seeing state legislatures run roughshod over weak
executives, the Constitution's drafters wanted a system of separated powers
that would free up the executive, not tie it down. By the time they
convened in Philadelphia, the bias against the executive that arose from
the fight with the British crown was pretty well gone. So much so that The
Federalist would argue during the ratification debate that "energy in the
executive is a leading character in the definition of good government" and
that "decision, activity, secrecy and dispatch" were qualities only a
unitary and independent executive could provide.
It's no surprise then that it is precisely these qualities that we see in
President Bush's decision to go around FISA in the wake of 9/11 and to
order the National Security Agency to conduct warrantless surveillance of
emails and calls going back and forth from suspected al Qaeda operatives
abroad to the United States, and vice versa.
Some critics of the president's actions have argued that he should have
asked Congress to amend FISA to meet these new circumstances. Leave aside
the practicalities of getting legislation of this sort passed in a timely
manner, and without the underlying rationale leaking. This president (or
any president worth his salt) would only accept legislation that either
confirmed his discretionary authority, or reduced the standard for getting
a warrant to some minimal requirement that the collection be "reasonably"
connected to the country's foreign intelligence needs.
But if legislation of that type were passed, what role would the FISA court
actually play? Either it really would become a rubber stamp, or it would
become a surrogate executive confirming or denying a warrant based on
reasoning that isn't, at bottom, judicial. Do we really want judges to play
the role of second--guessers of executive branch decisions, substituting
their own judgment on matters of national security for that of the
president and his duly appointed subordinates?
So, then, what is to be done? Well, to start, we should have a serious
debate about abolishing FISA and restoring the president's inherent
constitutional authority to conduct warrantless searches for foreign
intelligence purposes. And no, this wouldn't return us to the bad old days
of a snooping J. Edgar Hoover. Within the executive branch there are now
reams of guidelines and teams of inspector generals that make renegade
operations improbable or, at least, difficult to keep hidden very long.
Just as important, there are now standing intelligence committees in both
the House and the Senate. One of the odd effects of FISA has been to take
serious and sustained congressional oversight of electronic surveillance
off the table. The constitutional body that should be watching the
executive's discretionary behavior is, after all, primarily Congress.
Here we reach the nub of the matter: The Founders, in the words of The
Federalist, did not think it was wise or even possible to set a "limitation
of that authority which is to provide for the defense and protection of the
community." At the end of the day, a government has to do what is necessary
to protect itself and its people. Yet, at the same time, the Founders
believed in limited government. How did they square the circle? When it
comes to the conduct of war, the history is pretty clear: They expected
presidents to do what was required to secure the country's safety. But they
did anticipate that Congress would play the role of Monday--morning
quarterback: exposing malfeasance when called for, adding or cutting off
funds when necessary, passing laws to regularize the exercise of executive
discretion without undermining it, and, in the face of truly egregious
behavior, being ready to impeach a president.
Obviously there is no neat solution to the problem of power and
responsibility. However, as Winston Churchill said about democracy itself,
the system of discretion and oversight the Constitution establishes is the
worst possible solution-except for all others that have been tried.
Gary Schmitt is director of the program on advanced strategic studies at
the American Enterprise Institute and former executive director of the
President's Foreign Intelligence Advisory Board.
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R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'