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In a Sept. 13 vote along party lines, the Senate Judiciary Committee moved Chairman Arlen Specter’s wiretap bill to the Senate floor. The bill would provide for a court review of the National Security Agency’s terrorist surveillance program. Yet many critics are still fighting the legislation. They are vigorously protesting the bill’s elimination of the “exclusivity” provisions of the Foreign Intelligence Surveillance Act of 1978, which make it a crime for the president (or anyone acting under his direction) to carry out electronic surveillance on a foreign terrorist group or other foreign power in this country except in accordance with FISA’s statutory procedures. They claim the bill introduced by Sen. Specter (R-Pa.) is an “abandonment” of the principle that even presidents are subject to the rule of law. In fact, the history of FISA’s exclusivity provisions demonstrates that they were a mistake from the beginning. Far from protecting the rule of law, they ignore the law of the Constitution. Eliminating them now would help end confusion about the president’s authority in this critical area of national security. LEVI’S WARNING After the revelations about wiretapping by Richard Nixon’s administration, the FISA bill was proposed to provide judicial oversight of secret surveillance programs. Edward Levi, a great legal scholar and the attorney general under President Gerald Ford, worked actively with Congress to develop that legislation. Levi always insisted that the proposed law recognize explicitly that it was not “exclusive” and that the president would always retain the constitutional power to order surveillance of a foreign enemy without court approval in circumstances not covered by the statute. Levi assured Congress that President Ford would use the FISA process in all circumstances he could then anticipate. But he warned that the unpredictability of foreign threats to the nation and the likelihood of ongoing changes in communication technologies made it “extraordinarily dangerous” to pass a statute that did not acknowledge the president’s retained surveillance power. “The very nature of the reserved presidential power, the reason it is so important,” said Levi in his congressional testimony, “is that some kind of emergency could arise which I cannot foresee now, nor, with due deference to Congress, do I believe Congress can foresee.” Levi emphasized in congressional testimony that there is “a presidential [surveillance] power which cannot be limited, no matter what Congress says.” But he noted that Congress had an important role to play in setting forth “the understanding of the constitutional power” and that “it would be most unfortunate if it were suggested that those who passed this legislation thought that there was no such constitutional power in the hands of the president beyond the scope” of FISA. Levi’s view that the proposed statute must disclaim any intent to deprive the president of his Article II power was supported in congressional testimony by the nation’s leading constitutional scholars. The late professor Herbert Wechsler of Columbia University School of Law said that the legislation “necessarily reserves” the constitutional power of the president. Professor Paul Mishkin of the University of California’s Boalt Hall School of Law explained that a provision “which disclaims any intention to limit any ultimate inherent power which the president may have . . . clearly goes as far as Congress constitutionally can to establish and maintain legislative controls” in the area of wiretapping. Francis Allen, then the dean of the University of Michigan Law School, observed, “Congress is hardly in a position to undertake a full and a definitive statement of the limits of presidential power in these areas under all possible future contingencies.” After Ford and Levi left office, however, the draft FISA statute was changed to eliminate the explicit recognition of retained presidential power on which Levi and the constitutional scholars had insisted. The revised bill passed Congress and was signed into law by President Jimmy Carter. Griffin Bell, Carter’s attorney general and a former federal judge, told Congress that FISA “does not take away the power of the president under the Constitution. It simply, in my view, is not necessary to state that power. So there is no reason to reiterate or iterate it, as the case may be. It is in the Constitution, whatever it is.” In other words, Bell seems to have regarded the inability of Congress to limit the president’s constitutional surveillance power as so clear that the FISA exclusivity provisions were a harmless fantasy facilitating passage of a useful statute, and they made no practical difference. �TOOK FOR GRANTED’ The only court decision on the question agrees that Congress cannot limit the president’s constitutional surveillance authority. The FISA Court of Review, which consists of three federal appellate judges, said in a 2002 opinion that, based on prior decisions by the federal circuit courts, it “took for granted” that the president has authority under Article II to carry out warrantless surveillance for foreign intelligence purposes. “If that is so,” the review panel said, “Congress could not encroach on that presidential power.” The review court cited decisions of the 5th, 3rd, and 4th circuits holding that the president has constitutional power to carry out warrantless wiretaps for foreign intelligence purposes: United States v. Brown (5th Circuit, 1973), United States v. Butenko (3rd Circuit, 1974), and United States v. Truong Dinh Hung (4th Circuit, 1980). Those circuit decisions followed on the heels of the Supreme Court’s 1972 decision in United States v. U.S. District Court, more commonly known as the Keith case. While holding that the president has no power to authorize warrantless surveillance directed at a domestic organization with no connection to a foreign power, the Supreme Court went out of its way to say that it was expressing no opinion on the president’s power “with respect to activities of foreign powers and their agents.” “The Supreme Court surely realized,” Levi said in congressional testimony, “in view of the importance the government has placed on the need for warrantless electronic surveillance that, after the holding in Keith, the government would proceed with the procedures it had developed to conduct those surveillances not prohibited — that is, in the foreign intelligence area.” IMAGINE ANOTHER 9/11 Preventing an attack by a foreign enemy in this country presents the strongest possible case for the exercise of the president’s surveillance authority. Imagine that on the morning of 9/11, after the Twin Towers and the Pentagon were struck, the head of the NSA had called President George W. Bush and said he wanted to proceed immediately with the interception of calls at other U.S. airports where al Qaeda operatives were believed to be launching similar attacks. If the claim of FISA exclusivity were true, the president’s only lawful response would have been, “Well, we need to get the attorney general involved and begin the process of deciding whether a factual basis exists for him to determine that each surveillance target and each facility to be intercepted satisfies the standard for a FISA court order. Maybe we’ll be able to get you the necessary authority some time this afternoon.” No American president has ever accepted such a limitation on his constitutional authority to protect the nation from foreign attack. And no rational person, no senator or congressman, believes that he should. The current controversy over the Specter bill demonstrates that Ed Levi was right and Griffin Bell was wrong about whether the statutory confusion over exclusivity made any difference. The confusion has turned, in some minds, into a delusion of congressional power. But believing that FISA is exclusive will not make it so. It would be a bizarre irony if that delusion now stood in the way of constructive institutional change to provide a real constraint on unilateral presidential action. The president’s power to order surveillance of a foreign enemy that is planning to attack this country is a practical fact. The Specter bill does not define the limits of that constitutional power but simply acknowledges its existence and creates a judicial mechanism for the review of its exercise. Senators and congressmen who vote for the legislation can continue to believe, if that is their view, that Bush went beyond the constitutional limits in approving the current NSA program. On the other hand, if Congress rejects the Specter bill, then the president, regardless of what individual senators or congressmen may believe about the limits on his power, will continue to exercise that power without any constraint other than his own constitutional judgment in circumstances where the current FISA process is unworkable. The Specter bill would allow confidential court review of the details of the NSA program and other surveillance programs proposed by presidents in a range of circumstances beyond the individualized warrants of the current statute. It’s that kind of judicial review that can provide everyone — the president, Congress, and the American people — with greater assurance that we are protecting our constitutional rights even as we engage in surveillance that is protecting our nation.
John Schmidt is a partner in the Chicago office of Mayer, Brown, Rowe & Maw. From 1994 to 1997 he served as the associate attorney general in the Justice Department under President Bill Clinton. From 1993 to 1994 he was ambassador and chief U.S. negotiator to the Uruguay Round of international trade talks.

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