July 30, 2007
FISA and the Power to Defend from TerrorBy Al Johnson
Uncovering terror cells is going to require us to maximize our technological advantages. One obstacle is FISA, the Foreign Intelligence Surveillance Act.
The New York Times recently revealed that a data mining program was the subject of the legal dispute that led to Albert Gonzales' famous hospital visit to then-AG John Ashcroft. It was not the Terrorist Surveillance Program; rather, it had to do with the Able Danger data mining operation being conducted by the NSA. It may have run afoul of FISA, the Foreign Intelligence Surveillance Act, and thus led to a dispute between DoJ and NSA (which comes under DoD) over which of the two entities of the Executive Branch should have jurisdiction over it.
Of course, this jurisdictional dispute would also have serious legal repercussions affecting what information could be collected, by what means, to whom it could be disseminated and for what purposes it could be used. Captain's Quarters had a fascinating post yesterday, "Able Danger, Alberto Gonzales, and the Senate," that echoed in the blogosphere.
We need to tread carefully here; no one except the actual participants in the hospital discussion can be sure of what the issues were. However, Orin Kerr and Marty Lederman make educated guesses that are probably not far off the mark.
Toward the end of a lengthy analysis Lederman writes:
Please note: when all is said and done, we are once again dealing with restrictions placed by Congress, through its enactment of FISA, on the President's authorities and responsibilities as Commander in Chief. Note, too, that no court that has considered this issue has been willing to rule that Congress can statutorily limit the President's Constitutional powers and duties.
Finally, however, note that the Supreme Court does enter into this picture via the Hamdi decision and that, in Goldsmith's view, Hamdi limits the president's constitutional powers through by its interpretation of congress' Authorization for the Use of Military Force (AUMF). Nevertheless, none of these issues with regard to the AUMF would probably have been in play at all but for the enactment of FISA. This entire imbroglio ultimately comes back to FISA and resulted in the inter-agency jurisdictional squabbles that appear to have been behind the hospital visit.
Without minimizing the need to safeguard civil liberties, I doubt that I'm alone in questioning whether these behind the scenes constitutional and legal disputes have done any good as far as protecting the United States and its inhabitants from the terrorist threats that we face. Restricting the President's actions in defense of this republic to those actions undertaken by previous presidents would appear to be a grossly wrongheaded and unreasonable approach. By some accounts the NSA is collecting only a third of the information that it should ideally be collecting, due to legal issues.
It seems that the Democrats are, belatedly, becoming concerned with their image: they are concerned that they may be portrayed as unreasonably hampering legitimate requirements of the national defense and are seeking a face-saving, cover-their-behind patch of FISA, while at the same time continuing to bluster and threaten and obstruct almost all the President's national security initiatives.
Isn't it time that this nation had an open and freewheeling debate on FISA and Congressional and Judicial attempts to micromanage even the tactical aspects of the President's national security powers and duties? Isn't the defense and security of this nation too important to be left to the lawyers?
If FISA is unconstitutional as it restricts the President's Constitutional powers and duties, let's have it out. And if Congress, through FISA or an AUMF, can constitutionally restrict the President's powers and duties, we'll at least know who is to blame if we suffer another 9/11 type of attack. It will be the Party of Defeat, which has consistently politicized national security.
Update: This morning David Rivkin and Lee Casey offer an important analysis of this entire situation, stressing, as I have, the centrality of FISA to the continuing problem of providing an adequate defense against terror attacks on the United States. One point they make is worth elucidating:
Based on Rivkin and Casey's analysis it would appear that Professor Goldsmith and Acting AG James Comey were maintaining precisely that, in a time of war, FISA trumps the President's war powers when it comes to intelligence gathering within the US that is aimed at identifying enemy activity--even when that enemy is headquartered outside the US. Significantly, Goldsmith and Comey maintained this position even though 1) the bi-partisan Congressional "Gang of Eight" Senators and Representatives had urged continuation of all NSA programs and 2) several Federal courts had suggested that FISA could not be interpreted as trumping the President's "inherent constitutional authority as commander in chief." That Comey and Goldsmith should dig their heels in in face of the united Executive and Legislative branches as well as very pointed language in several Federal court opinions was quite extraordinary--and with barely a day's notice provided!. It was especially so given that the technology in question--by which enemy communications that are are intended to occur outside the US are now often routed through the US--was one that the 1978 FISA framework could not possibly have envisioned.
In the face of such unreasonable legal dogmatism, Rivkin and Casey's closing paragraphs are a breath of fresh air. Read the whole thing. Their conclusion:
Al Johnson is a retired attorney.