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Our greatest need in matters of national security is not new statutes. It is a return to our most important law, the Constitution, which gives the president a great deal of authority over foreign intelligence and the nation’s external relations that Congress cannot lawfully usurp. Sadly, after the Vietnam War, Congress enacted a number of unconstitutional statutes, including the War Powers Resolution and the Foreign Intelligence Surveillance Act (FISA). Such laws contributed to the success of the 9/11 attacks, and they continue to harm our security. The conventional wisdom on Capitol Hill today seems to be that there can be no “unchecked” powers in a democracy, and thus Congress has a right to know all the nation’s secrets. The Founders disagreed. In Federalist No. 64, John Jay explained that Congress could not be trusted to keep secrets, and thus the Constitution entrusted “the business of intelligence” to the president, to be managed “in such a manner as prudence may suggest.” This authority, like the control over international diplomacy, is an exclusively presidential power. In Marbury v. Madison (1803), Chief Justice John Marshall explained that “the decision of the executive” in these areas “is conclusive.” Marshall illustrated this by referring to the “act of congress for establishing the department of foreign affairs,” adding, “[W]hatever 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” in Congress or the courts. In an April 24, 1790, memorandum to President George Washington, Thomas Jefferson noted that Article II, Section 1 of the Constitution vests the nation’s “executive power” in the president. Jefferson added, “[T]he transaction of business with foreign nations is executive altogether.” It thus belongs to the president, save certain strictly construed “exceptions” vested in the Senate. Washington recorded in his diary three days later that James Madison and Chief Justice John Jay shared Jefferson’s view that the Senate had “no right to interfere” in matters of diplomacy except by vetoing nominations and completed treaties. This view was endorsed by the Supreme Court in United States v. Curtiss-Wright Export Corp. (1936), where the Court declared, “Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” In Katz v. United States (1967), the Court excluded “national security” surveillance from its holding that judicial warrants were required for wiretaps. A year later, in enacting legislation to implement Katz, Congress emphasized that it was not constraining “the constitutional power of the President to take such measures as he deems necessary . . . to obtain foreign intelligence information.” Since then, every court of appeals to consider the issue has recognized the president’s independent constitutional power to authorize warrantless foreign-intelligence wiretaps. Indeed, the appeals court established by FISA observed that “FISA could not encroach on the President’s constitutional power.” Congress’ usurpations have done serious harm. In 2002 Time magazine included FBI “whistle-blower” Coleen Rowley among its three “Persons of the Year” for her “courageous” disclosure that FBI lawyers refused her request to seek a FISA warrant to examine Zacarias Moussaoui’s laptop computer shortly before 9/11. Neither the clueless Rowley nor the media that praised her realized that her request was turned down because Congress had failed to include in FISA the authorization for warrants for a “lone wolf” like Moussaoui — a shortcoming remedied by amending FISA in 2004. Gen. Michael Hayden, former director of the National Security Agency, has stated that, had the current surveillance program existed in 2001, the NSA would have detected at least some of the 9/11 terrorists and identified them as al Qaeda operatives. As is the case with all constitutional powers, the president may not lawfully use his control over intelligence in violation of other constitutional provisions, including the Fourth Amendment’s prohibition of unreasonable searches and seizures. But courts have consistently upheld the search of airline passengers without probable cause or warrant. Obviously, it is reasonable for our government to monitor the communications of al Qaeda operatives abroad with people inside this country who might be planning terrorist attacks. Congress needs to let the president exercise the powers given to him in the Constitution. And legislators who place partisan interests above national security ought to be retired by their constituents at the earliest opportunity.
Robert F. Turner, a professor at the University of Virginia School of Law, co-founded the school’s Center for National Security Law in 1981. He is a former chairman of the American Bar Association’s Standing Committee on Law and National Security.

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