an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In this week's Weekly Standard, Gary Schmitt of AEI (former executive director of the President's Foreign Intelligence Advisory Board) has an intriguing essay in which he argues that FISA was a very bad idea to begin with:
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.
The principal problem with FISA, in Schmitt's view, is that it "is less about collecting intelligence than confirming intelligence." "Before the government can get a warrant," Schmitt explains, "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."
In other words, the current law does not authorize -- indeed, it prohibits -- the sort of data-mining program that the NSA has been operating over the past four years. Schmitt bemoans this fact, and urges that FISA be scrapped: "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." In Schmitt's view, it should be Congress itself, not the FISA Court, that provides oversight to ensure that the Executive is not abusing the power to wiretap: "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. . . . [The founders] 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."
It's a very intriguing proposal, akin to that of Judge Posner. I'm not yet convinced on the merits; but others will be, and it certainly is a very important debate for Congress and the public to have. Indeed, as Schmitt notes, Congress had this very debate back in the mid-1970's. FISA was not enacted on a whim; it followed considerable give-and-take, and compromise, between the Executive and Congress "in the wake of an extended, post-Watergate debate." During that debate, Laurence Silberman's testimony before Congress was bascially identical to Schmitt's column -- and it was overwhelmingly rejected by both political branches.
But perhaps the issue ought to be revisited. There would certainly be nothing illegitimate about such a debate, even if (like me) you think that FISA's checks on the Executive have been valuable.
OK, but what does that mean about the conduct of the NSA over the past four years? Schmitt doesn't come right out and say it, but the clear upshot of his column is this: FISA was too restrictive, and harmful, and so the Preisdent authorized violations of the law. Schmitt does not indulge the ridiculous fiction that Congress has already scrapped FISA, or carved out a wartime exception, when it passed the Authorization for Use of Military Force against Al Qaeda.
"[T]he law is what it is," he regretfully acknowledges.
Schmitt (and the Weekly Standard) seems untroubled by the fact that the President has been violating the law that Schmitt himself concedes is presently so restrictive. This is how he puts it: "President Bush's decision to bypass FISA warrants in the electronic surveillance of al Qaeda operatives has highlighted the act's limitations." The President made a "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."
Just to be clear: Schmitt is accusing the President of authorizing criminal conduct, of failing to abide by his constitutional obligation to "faithfully execute the laws." No doubt the President, like Schmitt, thinks those laws are inadvisable, and damaging to our national security interests. But is that a sufficient excuse?
There's a certain irony here, in that FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.
Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).
The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter). Instead, it simply decided to violate the law. Isn't that choice to bypass the democratic process a bit disconcerting, even if (like Gary Schmitt) one thinks the law was a lousy idea to begin with? Posted
by Marty Lederman [link]
Is it a given at this point that the underlying reason GWB avoided FISA was that he didn't want anyone to think that the NSA was data-mining to find terrorist communications? Its starting to sound as though people are assuming that's the case. Is it?
Doesn't this whole line of argument allow me as an individual citizen to break a law that I think is inadvisable? What if it is my earnest belief that on a clear day the legislative speed limit of 75 mph is too slow and I want to be home faster? At its bottom the argument is one for nullification, a battle that was fought and lost 140 years ago.
Seems to me that there are two separate, related things here.
First is the generalized data mining. That quite possibly is legal under FISA, we simply don't know enough details to make a judgment.
Second is the interception of certain communications. That is where there is the strongest argument that FISA applies. The reason given by Gen Hayden why FISA doesn't work there is "speed" and "agility". In the press conference he stated that the actual decisions were being made by the shift supervisor (operating under guidelines) which suggest s to me some sort of near real time decision making (something like: "Terrorist A is calling B, intercept any calls B makes when A gets off the line").
Secrecy is obviously important (although informing 14 members of Congress and the chief of the FISA court about the program is something less than secrecy), but I would not discount the "speed and agility" need that Hayden stated.
Gen. Hayden also explained, or at least asserted, that the emergency authorization procedure that the AG has statutory authority for is also not quick enough for what they are doing
Marty, I'm quite surprised by the certainty that you bring to this issue. Neither you nor I are aware of the specifics of the NSA program, and yet you feel confident to opine that the Administration "simply decided to violate the law." Given everyone's lack of knowledge of the technology that is involved and how it is applied, it is striking that you are so quick to condemn the Administration as lawbreakers. What hubris!
I also find your repeated characterization -- both here and on the conlawprof listserve thread -- of the In re Sealed Case dictum as being simply a throwaway line by Judge Silberman to be troubling. As you well know, the decision was rendered per curiam by a three-judge panel, and yet you treat the other two well-regarded members of the panel as being essentially irrelevant. What hubris! Even a cursory review of the oral argument transcript -- available at http://www.fas.org/irp/agency/doj/fisa/hrng090902.htm -- reveals that Judges Guy and Leavy (particularly Judge Leavy) were as active in their questioning, if not more so, than Judge Silberman. Perhaps you are correct that the language in question was drafted by Judge Silberman, but it was joined by the other members of the panel and merits respect as the decision of a court, not of an individual. You ordinarily bring a lot of rigor to your analysis, but your argument here is really quite flabby.