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Constitutional Spying

The solution to the FISA problem

Jan 2, 2006, Vol. 11, No. 16 • By GARY SCHMITT
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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.