The Magazine

Don’t Save This Court

Aug 5, 2013, Vol. 18, No. 44 • By GARY SCHMITT
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Prior to the 1970s, the constitutional rule of thumb was that collecting intelligence was an executive prerogative, and Fourth Amendment concerns only came into play when an individual’s life or liberty was in jeopardy as an investigation turned to possible criminal prosecution. But, as the revelations and investigations of the 1970s showed, it was a discretion presidents had at times abused. Even so, as the surveillance court itself recognized in a 2002 opinion, all previous federal appellate courts have “held that the President did have an inherent authority to conduct warrantless searches to obtain foreign intelligence information. .  .  . We take for granted the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

But if Congress were to repeal FISA and remove the court from overseeing the government’s surveillance programs, what oversight would exist on the president’s exercise of this power? The answer, of course, is Congress—specifically, the intelligence committees of the House and the Senate.

The model for this more constitutionally appropriate system is the one that now governs covert action. Under the law passed in 1974, the president’s decision to engage in covert action remains his alone to make, but he must notify the two committees in writing each time he undertakes a new covert program and provide Congress with a description and the scope of each operation. If a similar regime were set up to handle intelligence surveillance, the executive would not have an obligation to provide specific names of targeted individuals or wait until the committees approved a particular surveillance, but it would have to keep committee members fully apprised of its programs, giving them sufficient information to judge their effectiveness, amend them as necessary, or, in the case of extreme malfeasance, cut funds altogether.

The court’s current role under FISA allows the executive branch to hide behind judges’ robes in the exercise of its power and, in turn, weakens the incentive Congress has to weigh in on these matters. It would be constitutionally healthier if the responsibility for collecting intelligence and overseeing it were handled by the branches best suited to doing so.

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