Wall Street Journal (12.28.05)
FISA vs. the Constitution.
By ROBERT F. TURNER
In the continuing saga of the
surveillance "scandal," with some congressional Democrats denouncing
President Bush as a lawbreaker and even suggesting that impeachment hearings
may be in order, it is important to step back and put things in historical
context. First of all, the Founding Fathers knew from experience that
Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues
on the Committee of Secret Correspondence unanimously concluded that they could
not tell the Continental Congress about covert assistance being provided by
France to the American Revolution, because "we find by fatal experience
that Congress consists of too many members to keep secrets."
When the Constitution was
being ratified, John Jay -- America's most experienced diplomat and George
Washington's first choice to be secretary of state -- wrote in Federalist No.
64 that there would be cases in which "the most useful intelligence"
may be obtained if foreign sources could be "relieved from apprehensions
of discovery," and noted there were many "who would rely on the
secrecy of the president, but who would not confide in that of the
Senate." He then praised the new Constitution for so distributing
foreign-affairs powers that the president would be able "to manage the
business of intelligence in such manner as prudence may suggest."
In 1790, when the first
session of the First Congress appropriated money for foreign intercourse, the
statute expressly required that the president "account specifically for
all such expenditures of the said money as in his judgment may be made public,
and also for the amount of such expenditures as he may think it advisable not
to specify." They made no demand that President Washington share
intelligence secrets with them. And in 1818, when a dispute arose over a
reported diplomatic mission to South America, the legendary Henry Clay told his
House colleagues that if the mission had been provided for from the president's
contingent fund, it would not be "a proper subject for inquiry" by
Congress.
For nearly 200 years it was
understood by all three branches that intelligence collection -- especially
in wartime -- was an exclusive presidential prerogative vested in the president
by Article II, Section 1 of the Constitution. Washington, Madison,
Jefferson, Hamilton, John Marshall and many others recognized that the grant of
"executive power" to the president included control over intelligence
gathering. It was not by chance that there was no provision for congressional
oversight of intelligence matters in the National Security Act of 1947.
Space does not permit a
discussion here of the congressional lawbreaking that took place in the
wake of the Vietnam War. It is enough to observe that the Constitution is the
highest law of the land, and when Congress attempts to usurp powers granted to
the president, its members betray their oath of office. In certain cases, such
as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it
might well have crossed that line.
Keep in mind that while the
Carter administration asked Congress to enact the FISA statute in 1978,
Attorney General Griffin Bell emphasized that the law "does not take away
the power of the president under the Constitution." And in 1994, when
the Clinton administration invited Congress to expand FISA to cover physical as
well as electronic searches, the associate attorney general testified:
"Our seeking legislation in no way should suggest that we do not believe
we have inherent authority" under the Constitution. "We do," she
concluded.
I'm not saying that what the
president authorized was unquestionably lawful. The Supreme Court in the
1972 "Keith case" held that a warrant was required for national
security wiretaps involving purely domestic targets, but expressly
distinguished the case from one involving wiretapping "foreign
powers" or their agents in this country. In the 1980 Truong case,
the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of
a foreign power, its agent or collaborators (including U.S. citizens) when the
"primary purpose" of the intercepts was for "foreign
intelligence" rather than law enforcement purposes. Every court of appeals
that has considered the issue has upheld an inherent presidential power to
conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign
Intelligence Surveillance Court of Review, created by the FISA statute,
accepted that "the president does have that authority" and noted
"FISA could not encroach on the president's constitutional power."
For constitutional purposes,
the joint resolution passed with but a single dissenting vote by Congress on
Sept. 14, 2001, was the equivalent of a formal declaration of war. The
Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot
v. Seamen), that Congress could formally authorize war by joint resolution
without passing a formal declaration of war; and in the post-U.N. Charter era
no state has issued a formal declaration of war. Such declarations, in fact,
have become as much an anachronism as the power of Congress to issue letters of
marque and reprisal (outlawed by treaty in 1856). Formal declarations were
historically only required when a state was initiating an aggressive war, which
today is unlawful.
Section 1811 of the FISA
statute recognizes that during a period of authorized war the president must
have some authority to engage in electronic surveillance "without a court
order." The question is whether Congress had the power to limit such
authorizations to a 15-day period, which I think highly doubtful. It would be
akin to Congress telling the president during wartime that he could attack a
particular enemy stronghold for a maximum of 15 days.
America is at war with a
dangerous enemy. Since 9/11, the president, our intelligence services and our
military forces have done a truly extraordinary job -- taking the war to our
enemies and keeping them from conducting a single attack within this country
(so far). But we are still very much at risk, and those who seek partisan
political advantage by portraying efforts to monitor communications between
suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's
"enemies lists" are serving neither their party nor their
country. The leakers of this sensitive national security activity and their
Capitol Hill supporters seem determined to guarantee al Qaeda a secure
communications channel into this country so long as they remember to include
one sympathetic permanent resident alien not previously identified by NSA or
the FBI as a foreign agent on their distribution list.
Ultimately, as the courts
have noted, the test is whether the legitimate government interest involved -- in this instance, discovering and preventing new terrorist
attacks that may endanger tens of thousands of American lives -- outweighs the
privacy interests of individuals who are communicating with al Qaeda terrorists.
And just as those of us who fly on airplanes have accepted intrusive government
searches of our luggage and person without the slightest showing of probable
cause, those of us who communicate (knowingly or otherwise) with foreign
terrorists will have to accept the fact that Uncle Sam may be listening.
Our Constitution is the
supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and
every court of appeals that has considered this issue has upheld the independent
power of the president to collect foreign intelligence without a warrant.
The Supreme Court may ultimately clarify the competing claims; but until then,
the president is right to continue monitoring the communications of our
nation's declared enemies, even when they elect to communicate with people
within our country.
Mr. Turner, co-founder of the
Center for National Security Law at the University of Virginia School of Law,
served as counsel to the President's Intelligence Oversight Board, 1982-84.