One, two, three, war, what the hell’s impeachment for?—the sequel
As a follow-up to their Thursday editorial calling for the abolition of FISA (which I commented on at length, then later updated to counter a charge characterizing my position on the NSA controversy as “separtation of powers is stupid”—the precise opposite of what I’ve been arguing), today’s WSJ once again gets right to the crux of the issue. From “President Kollar-Kotelly”:
We’d like to thank the Washington Post for publishing a story yesterday that so quickly proved our editorial point of the same day about the folly of putting judges in control of national security decisions. That’s what we call service.
The front-page story reported that on rare occasion the Bush Administration has used information from the NSA’s warrantless foreign-linked wiretaps to seek domestic wiretapping authority from the Foreign Intelligence Surveillance Court. This was said to have upset chief FISA judge Colleen Kollar-Kotelly, and the tenor of the story is that this is one more example of how the warrantless wiretaps are an abuse of power. But the better question is, Who elected Ms. Kollar-Kotelly?
The story’s real news is that Judge Kollar-Kotelly, and her predecessor Judge Royce Lamberth, took it upon themselves to erect a new “wall” concerning how intelligence is to be used to protect America. They decided that pertinent information gleaned from a warrantless wiretap should never be used later to justify a domestic warrant. But why not? If a tip gathered from an email from Pakistan leads to suspicion about an American-based contact, what’s wrong with using that news to get a legal warrant to track that suspect in the U.S.? It might even prevent a domestic attack.
In any event, why is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one.
GOP Senator Arlen Specter is saying he wants to write legislation putting even more power in the hands of FISA judges. This isn’t merely unconstitutional. As the Post story shows, in a world of WMD and fast-moving transnational terrorists, it’s dangerous.
Current foreign-intel gathering procedure by the NSA allows the NSA to “lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.” Once these summaries are provided to the FBI, domestic law enforcement can then decide to use the information to proceed with the legal process—which includes the application for warrants, due process, fourth amendment protections, etc., on US citizens.
If, as the administration says, the program is being used narrowly and is proceeding from the phones, emails, contacts, etc, of captured or pilfered from al-Qaeda (or other Islamic terrorist- related subjects or sites)—a perfectly legitimate use of the NSA’s foreign intel surveillance power—why would a judge then find trouble in handing out warrants based on the fruit of these intercepts, substantive leads?
The answer, it seems to me, is that even these FISA judges, who, one would hope, are familiar enough with the military aspects of foreign intel gathering to know differently, continue to view the war against foreign agents embedded in US cells and who are using our system of legal protections to insulate themselves from detection and prosecution, as a domestic law enforcement issue. Under such a paradigm, then, the NSA’s original intercept looks to these judges like an illegal search, which, if it turns out the illegal search is revealed as the source for netting enough evidence to collect a subsequent warrant under probable cause, then they seem to be concluding that all of the evidence is tainted, and all the post-warrant activity is to be thrown out.
But if this is the case, what possible reason could we have for allowing for generalized NSA foreign surveillance in the first place (it is meant to act as an early warning system), or for allowing that surveillance to be provided in summary form to federal law enforcement officials, who can then make criminal cases in the US under established law enforcement procedures. That is, how is the NSA different from a reliable tip in the obtaining of a warrant in the first place?
Such procedural dilemmas as judges seem to wish to create are yet another reason why the Constitution, presumably, didn’t call on the judiciary to prosecute wars—and was loathe to give the process over to a lumbering bureaucracy. As Daniel Henninger notes:
[...] let us here consider something that tends to fall outside legal considerations—effective management. On Tuesday, Vice President Cheney said, “You can’t take 535 members of Congress and tell them everything and protect the nation’s secrets.” Mr. Cheney was reflecting the view, which arose at the time of the Founding Fathers, that foreign policy was disorganized under the Articles of Confederation and belonged under a strong executive. A primary reason for calling the Constitutional Convention of 1787 was the mess Congress had made of managing foreign policy.
To some modern-day proponents of a “living” Constitution, such thinking is outmoded; the legislative branch and the judiciary need to provide more checks on the “imperial” “plenary” “unitary” power of the President than the Constitution provided for, which is why we have (constitutionally dubious) legislation like FISA to begin with.
But such a view is meant to disrupt the balance of power as set up by our founders—and even those FISA court judges who believe the NSA program illegal based on their consideration of the program through a law enforcement paradigm admit they have no authority to rule on the President’s Article II powers. From the WaPo story (thank Karl Maher):
Both judges expressed concern to senior officials that the presidentÃ¢â‚¬â„¢s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the presidentÃ¢â‚¬â„¢s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.
What this suggests is not, as critics of the administration would have it, that the President is overstepping his bounds as CiC; in fact, it suggests just the opposite—the tacit acknowledgment that the FISA is not able to constrain the constitutional powers of the President under Article II (and, in a related coup of tacit admission, that AUMF does in fact act as a statutory exemption under FISA).
And this turns out to be a good thing, or else we’d have wars being fought by a coalition of Congress and the superlegislature that today’s courts have become, rather than being run by a CiC and his war cabinet, having been properly authorized to run the war. Congress is free to file articles of impeachment if they believe the President to be acting illegally—or else cut the purse strings to the programs they find dubious. They’ve done neither.
Similarly, courts are able to rule on the legality of certain program, but they are loathe to interfere with what has long been assumed is the President’s broad inherent authority under Article II to wage war and protect the homeland—which, in this case, includes making use of warrantless military signals intel at home in specific and narrowly defined circumstances.
(h/t Terry Hastings; track latest news/opinion on the “domestic spying scandal” here)