Fixing What Isn't Broken Posted by Morton H. Halperin

This week the Senate Judiciary Committee is conducting another round of hearings on the NSA warrantless surveillance program.  I appeared before the committee today (you can read my testimony here) and I applaud Chairman Specter for conducting this series of hearings.

But the very fact that these hearings are required is disturbing.  As I have mentioned in earlier posts, this warrantless program is a clear violation of the law and all surveillance that is needed to protect national security can be effectively pursued under FISA.  It is even more mind-boggling that Congress is discussing granting far reaching new powers to the President in bills drafted by Specter and Senator DeWine.  Until the Bush Administration publicly makes its case as to why it needs additional powers to conduct surveillance, there is little reason to change FISA.  Instead of stretching FISA to accommodate vague power usurpation by the President, the actions of the President and the NSA must be brought within the law.

The two legislative options being put forth for this non-problem by Senators Specter and DeWine fall far short of this goal.  Specter's bill (S.2453)  authorizes much more than the program that the President and the Attorney General have described as the Terrorist Surveillance Program.  It does not require particularized probable cause related to the target of the surveillance nor does it require that, with the additional authority that is granted, all surveillance be conducted pursuant to FISA.  Some of these broad-based authorizations include: the right to conduct surveillance to gather any foreign intelligence information, not just information related to terrorist activity; permitting surveillance of persons who engage in clandestine intelligence activities, which may not even be illegal, and not just terrorist activity; and it permits the interception of electronic communications between two persons, both of whom are in the United States.  DeWine's bill (S. 2455) includes many of the same problems as Specter’s bill, but is even worse.  It offers sweeping powers to conduct indefinite warrantless surveillance (albeit in 45 day increments) of persons in the United States and lowers the standard necessary to justify surveillance to a “reasonable likelihood” that the program is focused on a group that may be engaged in activities in preparation of a potential act of international terrorism.    

However, if Congress decides that legislation is absolutely necessary or if the administration presents a compelling case for more authority, there are ways to legislate that maintain the integrity of FISA that are being discussed privately among Democratic members of both Houses and which I described in my statement to the Judiciary Committee. Legislation might include these elements:

(1)    Authorize additional emergency procedures under FISA to deal with the problem explained by the Attorney General to the Judiciary Committee.  If the administration presents evidence that the emergency procedures of FISA are not flexible enough, the following steps can be taken:  specifically designated NSA officials could initiate emergency surveillance for 72 hours before the surveillance would have to be approved by the Attorney General.  If the AG does authorize the surveillance, it can continue for another 72 hours until the AG would have to submit it to the FISA court.  If either the AG or the FISA court does not approve the surveillance, it must stop and all the fruits must be destroyed.
(2)    Amendments to FISA to reaffirm Congress’ clear intent that FISA be the exclusive means to conduct electronic surveillance within the United States and of US persons for intelligence persons.  Amendments would clarify the administration’s strained interpretation of FISA by making it clear in specific situations that only FISA and Title III govern all electronic surveillance programs.  This would mean, for example, that any certification provided by the Attorney General to a telephone company would need to certify in specific terms that the statutory requirements of FISA had been satisfied as is the clear intent of the current statute.
(3)    Sunset the new authority in one year.
(4)    Direct the Intelligence and Judiciary Committees to conduct a full inquiry and to report back to the Senate within six months any additional legislation that may be required in light of the facts.

One of the signs of a flawed program is if government officials feel compelled to leak information about the program.  Those within the government and the private sector who administer these programs must have assurances that their actions are within the law.  When there are doubts about the constitutionality of a program, those involved in conducting the program will properly balk, thwarting the program, and there will inevitably be leaks by those deeply troubled by what is being done.  There were leaks of surveillance programs before FISA was enacted and of the current program, but, as far as I am aware, there have been no leaks about programs conducted under FISA.

If it ain’t broke, don’t fix it.   

Comments

[libertarian soldier]

With all due respect
You say: "this warrantless program is a clear violation of the law and all surveillance that is needed to protect national security can be effectively pursued under FISA"
I am not a lawyer and/or a judge, but some of them seem to have a different view than your on the legality of the law: (from Captain's Quarters)

Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. *** The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. ***
Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that. ***

Senator Feinstein: What do you think as a Judge?

Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.

Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?

Judge Baker: No, I do not believe that a President would say that.

Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?

Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too. ***

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution. ***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?
[No response.]
Chairman Specter: Everybody agrees with that.
So, according to at least some learned legal minds, it is broke.

I also must disagree in part with your statement "One of the signs of a flawed program is if government officials feel compelled to leak information about the program."
Leaks are a sign of government officials' UNHAPPINESS with a program, policy or decision. Sometimes because it IS flawed, and sometimes because they THINK it is flawed because they disagree with it. But they are no more gifted with omniscience than the decision makers--unless, of course, they are wise old elder statesmen :)

[J Thomas]

Leaks are a sign of government officials' UNHAPPINESS with a program, policy or decision. Sometimes because it IS flawed, and sometimes because they THINK it is flawed because they disagree with it.

Before the leak it's something secret. None of the people who don't know about it at all, have an opinion about it.

After the leak a larger group of people gets to decide what they think.

If the leak gets publicised and the public doesn't care, then it's left to the wise old statesmen to decide. If it's a scandal, that makes a big difference right away.

In any case, not even wise old elder statemen get to decide about things that are kept secret from them.

[kamil]

There are certain things in life related to smoking that simply cannot :)
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