Wednesday, December 28, 2005

NSA "Eavesdropping": The Last Word (from Me)

I'll begin with an op-ed by David B. Rivkin and Lee A. Casey, from yesterday's NYT:

SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States. This program was adopted by direct presidential order and was subject to review every 45 days. Judicial warrants for this surveillance were neither sought nor obtained, although key members of Congress were evidently informed. The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.

After all, even the administration's sternest critics do not deny the compelling need to collect intelligence about Al Qaeda's plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush's decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act.

In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has "probable cause" to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use.

Indeed, it is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.

Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization "to use all necessary and appropriate force" against those responsible for the Sept. 11 attacks "in order to prevent any future attacks of international terrorism against the United States." These words are sufficiently broad to encompass the gathering of intelligence about the enemy, its movements, its abilities and its plans, a core part of the use of force against Al Qaeda and its allies. The authorization does not say that the president can order the use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush is barred from doing so.

The fact that the statutory language does not specifically mention intelligence collection, or that this matter was not raised by the White House in negotiations with Congress, or even that the administration had sought even broader language, all points recently raised by former Senator Tom Daschle, is irrelevant.

Overall, this surveillance program is fully within the president's legal authority, is limited in scope (involving communications to or from overseas related to the war against Al Qaeda), and is subject to stringent presidential review. The contretemps its revelation has caused reveals much more about the chattering classes' fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching.

The Constitution's framers did not vest absolute power in any branch of the federal government, including the courts, but they did create a strong executive and equipped the office with sufficient authority to act energetically to defend the national interest in wartime. That is what President Bush has done, and nothing more.

David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations.
Now, to the Executive Vesting Clause of Article II of the Constitution:
The executive Power shall be vested in a President of the United States of America.
That short sentence carries a lot of weight. Here's what Sai Prakash has to say about it in The Heritage Guide to the Constitution (pp. 179-82):
The [Executive Vesting Clause] . . . accords the President those foreign-affairs authorities not otherwise granted to Congress or shared with the Senate. . . .

The Articles of Confederation lacked an independent chief executive. Instead, the Continental Congress exercised the executive power, appointing and dominating the secretaries of the executive departments. Unfortunately, law execution under the direction of a distracted, plural executive was neighter vigorous nor swift. Congress likewise proved a poor steward of foreign affairs, with American diplomats complaining that Congress could not act with the requisite speed or secrecy. . . .

Resolving to avoid the problems plaguing state and national executives, the Constitution's makers created an energetic, responsible, and unified executive. . . . The Anti-Federalists well understood the Framers' design and criticized the unitary executive [but they lost the argument: ED] . . . .

. . . [T]he delegates [to the Constitutional Convention] spoke of the President's principal foreign-affairs role, oftentimes referring to the Senate's role in treaty-making as a limited exception to the grant of foreign-affairs authority to the President. . . .

. . . [T]raditional rules of statutory interpretation require us to take seriously the differences in phrasing across the three vesting clauses. Artilce I, Section 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States. . . .") makes clear that it vests no authorities separate from those enumerated in the rest of Article I. In contrast, Article III, Section 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish.") clearly vests the federal courts with judicial authority. The Executive Vesting Clause reads like its Article III counterpart, in sharp contrast to the Article I introductory clause. . . .

In a case touching upon foreign affairs, the judiciary has recently reaffired that the executive power grants foreign-affairs authority to the President. See American Insurance Ass'n v. Garamendi (2003). This marks a departure from prior case law, which had grounded the executive's foreign-affairs powers not in any constitutional text, but in necessity and sovereignty. See United States v. Curtiss-Wright Export Corp. (1936).
John Yoo and James C. Ho, writing in the same volume about the president's role as commander in chief (pp. 195-8), have this to say:
. . .[S]ome originalist scholars have concluded that Congress's war power is limited to its control over funding and its power to impeach executive officers. They contend that the President is constitutionally empowered to engage in hostilities with whatever resources Congress has made available to the executive. . . .

In summary, the argument for executive initiative rests on the background understanding that the vesting of "executive Power" and the "Commander in Chief" designation together constitute a substantive grant of authority to the President to conduct military operations.
It is clear that it is fully within the president's constitutional authority to order electronic surveillance of communications between persons in the U.S. and persons overseas. It is especially that such surveillance is legitimate because of its war-related purpose. The interception of communications by U.S. citizens is merely incidental to that purpose.

The Framers intended the executive to be a passive enforcer of laws passed by Congress that bear on domestic affairs (and those laws were to be strictly limited in scope). At the same time, the Framers intended the executive to defend Americans actively against enemies foreign and domestic. Those who cavil at such things as the NSA's surveillance of international communications would have it the other way around: They prefer a domestic dictator of social and economic outcomes (as in FDR and LBJ) who is, at the same time, content to leave America exposed to its enemies. Neither FDR nor LBJ were content to leave America exposed to its enemies, but their Democrat Party is not today's Democrat Party.

Related post: The Constitution and Warrantless "Eavesdropping" (with many links therein)