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FISA & the rule of law

| Sunday, Feb. 24, 2008

For many in the debate over the National Security Agency's Terrorist Surveillance Program and the 1978 Foreign Intelligence Surveillance Act (FISA), the facts are clear:

After 9/11, the president authorized warrantless electronic surveillance of known or suspected foreign terrorists outside this country -- even when they communicated with individuals within the United States, which violated FISA.

Therefore, Bush "broke the law" and obviously believes he is "above the law."

As a scholar who has specialized in this area of the law for more than three decades, I find the situation far more complex. As I see it, it is primarily Congress, not the president, that has been violating the law.

No one in America is "above the law." But we have a hierarchy of laws and our Constitution is supreme. Until the Vietnam War, there was a broad consensus among scholars and all three branches of our government that -- to quote John Jay in Federalist No. 64 -- the Constitution leaves the president free "to manage the business of intelligence as prudence might suggest."

This, Jay explained, was because Congress could not be trusted to keep secrets. The textual source of this power -- as expressly articulated by Washington, Madison, Jefferson, Hamilton, Marshall and many others among our Framers -- was that the control of foreign affairs (with certain important but narrowly construed exceptions vested in the Senate and Congress) was part of the "executive power" vested in the president by Article II, Section 1, of the Constitution.

In the landmark Supreme Court case Marbury v. Madison (1802) , Chief Justice John Marshall observed that the Constitution gave the president important discretionary powers over foreign affairs, adding "whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion." Added Marshall: "an act of the legislature repugnant to the Constitution is void."

In the 1936 Curtiss-Wright case, the Supreme Court noted that federal power over foreign affairs was "in origin and essential character different from that over internal affairs," adding: "Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." Like the collection of foreign intelligence and the conduct of military operations, negotiation with foreign governments was an exclusive presidential power.

When in the 1967 Katz case the Supreme Court first held that telephone wiretaps were a "seizure" under the Fourth Amendment, and thus required a judicial warrant based upon "probable cause," footnote 23 expressly excluded "national security" wiretaps from the holding.

The following year, when Congress enacted the first wiretap statute, it emphasized that the new law did not in any way limit "the constitutional power of the president to take such measures as he deems necessary ... to obtain foreign intelligence information ... ."

In 2002, the appellate court established by FISA noted that every U.S. court to decide the issue had "held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." Agreeing, the court observed: "FISA could not encroach on the president's constitutional power."

While the Supreme Court has never formally decided the issue, it has had no fewer than six opportunities to limit this presidential power -- including opportunities to review and overturn opinions of all four federal circuit courts of appeals to uphold the existence of a foreign intelligence exception to the Fourth Amendment's warrant requirement.

Sadly, Congress seems to have forgotten that it, too, is constrained by the rule of law as expressed in the Constitution. And by making details of our foreign intelligence programs public, Congress is endangering the security of our nation.

Robert Turner, a University of Virginia professor, worked in the Senate when FISA was enacted and later oversaw FISA for several years as a White House lawyer. He is a former chairman of the American Bar Association's Standing Committee on Law and National Security.

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