Why FISA is Important

It's important to remember why FISA was adopted in the first place. The NSA does communications surveillance and the legal basis for this during the entire history of the agency has never been that clear (see the books by James Bamford, the original one was The Puzzle Palace). When it needed a rationale, the agency tended to rely on a vague claim of presidential authority under Article II, whether there was an authorized war going on or not. This was not questioned too much as long as the agency was monitoring foreign governments or agents thereof solely.

But the agency was also in the business of monitoring all communications flowing out and in of the U.S. and many of those of course involved "U.S. persons." Under two very secret programs known as Shamrock and Minaret, the agency maintained long lists of U.S. citizens, organizations and activities and ran search routines to find references to them in the vast quantities of info flowing out and in. The info generated was given to other federal agencies such as CIA, FBI and the president himself. Eventually these activities surfaced during the 1970s in the context of prosecution of violent dissidents like the Weathermen and congressional investigations of the intelligence agencies, especially the CIA. Once they surfaced, the dominant reaction was that such surveillance was illegal unless justified by a warrant. Negotiations between the executive and Congress produced FISA and its very unusual "court," an agency without any adversarial procedures.

You might put the wisdom of the 1970s this way: there is no such thing as plenary presidential power over any domestic matter. The president has to get authority from Congress to do a domestic X, or the president doesn't have the authority. The only way presidents could get away with this prior to the 1970s was that everything they were doing was secret and this was ultimately a product of the Cold War. This makes the idea of AUMF overriding FISA especially objectionable unless it was done in terms, which of course didn't happen.

John Schmidt, who worked in the Clinton DOJ, wrote an editorial for the Chicago Tribune that has been getting some attention because he purports to provide a rationale for what Bush has done. But don't get confused because Schmidt bypasses all the relevant issues. It might be right that the president has more authority when the surveillance is purely "foreign" but the whole problem in the first place, one clearly realized and thoroughly discussed in the 1970s prior to FISA, was that U.S. citizens were being monitored as they interacted with people abroad. That is, domestic and foreign were intermingled from the beginning. The value judgment FISA made was that when there was intermingling, the balance should be struck in favor of at least some limited judicial review. If not, the President and NSA would have carte blanche to monitor any U.S. citizen for any reason as they made or received foreign communications of any kind.

It may be true, as Schmidt says, that the position he articulates on foreign surveillance has been consistently affirmed by prior presidents. The wisdom of the 1970s was that Congress is relevant and you have to get their statutory permission before you can feel confident that what you are doing is constitutional. And I doubt whether the position he articulates has ever received a full review by the Supreme Court, as opposed to lower federal courts.