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In an 11th-hour deal last Tuesday with the Senate Intelligence Committee, the White House narrowly averted yet another inquiry into the legality of President George W. Bush’s warrantless surveillance of terrorists by submitting future spying activity to a new terrorist surveillance subcommittee. Notwithstanding grumbling by some Senate Democrats and somewhat reluctant acceptance by the White House, the deal is a prudent step. It should preserve the president’s needed flexibility, allow for congressional oversight, and help keep the executive and legislative branches united in the fight against al Qaeda. Reasonable minds could, and did, differ over the president’s legal authority to approve the National Security Agency’s warrantless surveillance. On the one hand, there is the president’s authority to defend the nation from future attack, which is given by both the Constitution and the congressional resolution authorizing force against al Qaeda. On the other, there is the Foreign Intelligence Surveillance Act of 1978 (FISA), a highly complicated statutory scheme that was intended to stop the Richard Nixon-era abuses of political eavesdropping, but that also proclaims itself to be the “exclusive” means for gathering foreign intelligence information. The two sides of this issue are as old as the republic itself. Alexander Hamilton argued for a strong executive in foreign affairs; James Madison championed oversight by the legislative branch. It was not helpful, therefore, to pursue such rough-hewn questions as: (1) Is the president above the law? (2) Or why can’t the president simply order more battlefield surveillance? (3) Or, as Sen. Russell Feingold (D-Wis.) asked me before the Judiciary Committee on Feb. 28, can the president assassinate an American citizen? The answers are: (1) He’s not, but the law includes the Constitution. (2) Keeping track of the enemy in battle is a good idea, but it is an imperfect analogy when the battle is everywhere. (3) As for assassination, well, whom do you have in mind, Senator? Seriously, that answer in this universe of generalities is also “no” — until, of course, one fills in the further hypothetical detail that the American is an al Qaeda confederate about to explode a dirty bomb. UP TO 45 DAYS What is clear, and what the rough outline of the Intelligence Committee deal suggests, is that the Constitution divides ample grants of foreign affairs authority between both political branches and that working out a prudent means of oversight over the president’s good-faith effort to protect us is far more useful than demanding more committee investigations or, worse, yet another special prosecutor. The deal, in principle, would allow the president to authorize wiretapping for up to 45 days without seeking a warrant if there is probable cause to believe that the communication under surveillance involves someone suspected of being a member of, or a collaborator with, a terrorist group on a government list and if at least one party to the conversation is outside the United States. The initial assessment of probable cause would not be judicially reviewed, but the agreement would require the president to seek a warrant from the FISA court whenever possible. If he elected not to do so after 45 days, the attorney general would have to certify that the surveillance was necessary to protect the country and explain to the seven-member subcommittee why the warrant had not been sought. On such warrantless surveillance, the attorney general would be required to brief the subcommittee every 45 days thereafter. Although the deal better balances the constitutional concerns of the political branches, there are still vagaries traceable to the largely unknown nature of the existing program. For example, the deal perpetuates the president’s unexplained impression that the NSA can monitor international calls but not calls between al Qaeda cohorts chattering cross-town in, say, Portland. FISA does not draw this distinction. Obviously, too, legislative language will need to be crafted to define what is a prudent means of oversight for the new subcommittee. At a minimum, it needs to prevent the disregard of basic civil liberties of U.S. persons while not undermining the government’s operational capability to gather intelligence on the enemy. SAVING CASES Included in that equation is the need to ensure the integrity of any possible criminal prosecution in a case involving NSA eavesdropping. The USA Patriot Act rightly deconstructed the “wall” that once prevented intelligence officers from even sharing information with prosecutors. But already arguments are being made that evidence gathered with a warrant has been tainted by its derivation from earlier, warrantless NSA activity. This claim for suppression should be a losing argument when evidence is obtained exclusively pursuant to a Fourth Amendment or FISA warrant, but the deal suggests that more cases will arise where the attorney general has certified the need for surveillance in the absence of either warrant. Even in this situation, a suppression argument could still be a loser if the president has “special or exigent” need to eavesdrop on al Qaeda and its friends. The Supreme Court has noted that when the government’s interest is beyond general law enforcement and special safety or exigent needs exist, warrant requirements do not apply (e.g., some school searches, driving-under-the-influence checkpoints, border searches). The Court has specifically noted that a potential terrorist attack is “far removed” from ordinary law enforcement. The Intelligence Committee deal did not satisfy everyone. Sen. John Rockefeller IV (D-W.Va.), vice chairman of the panel, at first assailed the plan as reflecting “the control of the White House,” but by week’s end saw it as “a step in the right direction.” To some degree, Rockefeller’s reservation echoes the pre-deal proposal of Sen. Arlen Specter (R-Pa.) to have a third party review the details of NSA surveillance. An astute former prosecutor, Specter wanted to have the FISA court serve as a “neutral, detached magistrate” issuing warrants in advance not for specific persons but for an entire program. This would have been a novel role for a court, and it raised more than a few complex questions about whether judges could undertake the task — even as the original FISA assignment was hardly the usual “case or controversy,” either. Though federal judges do not give advisory opinions, adjudicative findings associated with the constitutional reasonableness of warrants have been a judicial duty since the 17th century. And the idea of a specialized national security court and warrant came from the Supreme Court itself in the so-called Keith decision (407 U.S. 297) in 1972. Despite this history, there was uncertainty about the appropriateness of having judges issue warrants for programs and not persons. TANGIBLE DETAIL Not all the elements of Specter’s proposal ought to be tossed, however. The substance of the new subcommittee oversight could be given tangible detail by incorporating into the authorizing legislation his thoughtful list of inquiries about surveillance efforts. For example, the attorney general could be asked to provide the following over the anticipated 45-day periods: the number of interceptions made, operational procedures employed, minimization steps taken (i.e., efforts to reduce the collection, retention, and dissemination of information on U.S. persons), and a summary of the foreign intelligence obtained. Specter’s list of inquiries is better suited for Congress than for the courts. For example, Specter had wanted the FISA court to evaluate “the benefits of the electronic surveillance program as reflected by the foreign intelligence information obtained.” That is a function incongruous with the role of the judiciary, but it fits comfortably within the constitutional role of a congressional subcommittee. As drafting discussions continue, Congress ought to show considerable sensitivity to White House concerns over confidentiality and unnecessary written submissions. Too much paperwork runs the risk of not just being an administrative burden that might render surveillance unworkable, but also becoming an invitation to improper disclosure. All things considered, it is a highly positive turn for Congress and the White House to be discussing the parameters of new legislation. It is a reminder that the separation of powers need not produce divided efforts to defeat a common enemy.
Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He was the head of the Office of Legal Counsel in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.

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