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Democrats now in control of Congress aren’t eager to pass legislation just to authorize the National Security Agency’s current electronic surveillance program. For his part, President George W. Bush maintains that such congressional authorization is not constitutionally required. But despite this tension, both Congress and the president should be able to agree that the NSA program and the controversy surrounding it have taught some important lessons about weaknesses in our national security laws, weaknesses that can be fixed. Democrats and Republicans together should apply those lessons to put in place a generally accepted legal structure that allows our surveillance capacities to be used effectively against al Qaeda and other terrorist groups while providing confidence that our constitutional rights are being protected. These changes may have little impact on the remaining two years of the Bush presidency, but they could matter enormously to the next president, particularly a Democrat (or Republican) who does not want to rely on Bush’s claims of unilateral presidential power to respond to future threats. IN REAL TIME The first lesson the NSA program teaches is that changing communications technologies will outstrip any prescribed statutory process for surveillance. When the Foreign Intelligence Surveillance Act was passed in 1978, no one imagined the possibility of “real-time” surveillance in which an analyst listening to a telephone call picks up a lead and needs to follow it immediately by listening to another call, without the time to obtain even “emergency” authorization by the attorney general under FISA. That timing problem could be solved, as some pending bills propose, by allowing the attorney general to delegate the authorization power to security analysts at the NSA. That solution works if all you want to do is give statutory authority for the current program. But that approach solves the problem only for today’s technology. The next stage of technical development is likely to be using computerized screening or mining techniques to conduct the initial “surveillance” entirely by machine. We do not know enough about how such techniques would work to begin to prescribe the appropriate constraints. And if we did, we would not know enough to prescribe appropriate constraints for the technology to follow. We want to encourage this technological evolution. We need the smartest and most imaginative people at the NSA and elsewhere in the intelligence and communications fields working to develop new surveillance techniques using technologies that we — and the terrorists — cannot even imagine. That evolution will inevitably be inhibited if specified procedures that don’t accommodate new technologies, and ways to apply them to unforeseen future threats, are locked into the statute. The second lesson of the NSA experience is that congressional notification and oversight, without judicial approval, does not work to create general confidence in surveillance procedures. On this point we have the evidence of the natural experiment conducted by Bush and Congress with the NSA program. The president notified the Democratic and Republican leaders and the chairmen and ranking members of the intelligence committees in the Senate and the House about the NSA program. Yet when the program became public, controversy was nonetheless bitter and partisan. One can argue that Bush didn’t “do it right” — he should have notified a broader group of legislators, he should have given them more information, he should have let them consult with staff or outside experts, etc. But no one can seriously believe those particular elements of notification were the heart of the problem. Congressional notification does not produce the necessary confidence because partisanship, polarization, and breakdown of personal trust now characterize political Washington; Congress lacks the institutional capacity to make judgments about the constitutionality of complex and novel surveillance programs; and Congress lacks remedies for the misuse of presidential power, except for extreme measures, such as cutting off funds. Proposals to expand congressional “oversight” as a solution to the NSA controversy are thus delusions. TO THE COURTS These two lessons, taken together, argue for a legal structure that gives a court the broadest possible authority to approve the constitutionality of an electronic surveillance program. Experience with FISA since its enactment in 1978 tells us that court approval, unlike congressional notification, does work to provide confidence in the legality of surveillance activity. Although we can never know for certain, there is reason to believe that if the statute had given the FISA court the authority to review the constitutionality of the NSA program, the president would have submitted it. (Bush has said that he asked his advisers if it could be done through the court.) Based on everything we know about the program, the court would have approved the program, and the entire controversy would have been avoided. Whether or not Bush would have taken that course, Democrats should want a Democratic president to be able to proceed in that manner. In reality, if court review of a surveillance program is possible, regardless of any theoretical views of the existence of inherent presidential power, any future president, Republican or Democrat, will be under overwhelming political, bureaucratic, and institutional pressure to take that route. As Congress considers a broader court jurisdiction, it is important to recognize that the more the statute tries to prescribe the particular elements of an acceptable program, the more likely it becomes that we will again face controversy some day over a program that does not meet those specifications. There is temptation for Congress to want to prescribe the standard for approval of surveillance, and it is sometimes asserted by commentators that the failure to do so will “allow” a broad range of expanded surveillance. But by giving up that prescriptive role, Congress is not allowing anything except a surveillance program that the court is prepared to approve as constitutional. The procedures for court approval could be strengthened by providing that any lower-court decision approving a surveillance program must be automatically reviewed by the FISA Court of Review, which consists of three federal appellate judges. Under current law, appeal to the Court of Review is possible only by the government, the sole party to the confidential proceedings. The law could further provide that if the Court of Review approves a surveillance program, the decision automatically would be submitted to the Supreme Court for review, at the Court’s discretion. Some critics have portrayed broader court jurisdiction to approve a surveillance program as an abandonment of fundamental constitutional principle that requires a court-approved warrant for any search (including electronic surveillance) under the criminal law. But the Supreme Court has long recognized that “special circumstances” can justify searches without individual warrants, and it has recognized that special procedures may be needed for matters involving national security. The current FISA procedures do not involve warrants in the criminal law sense because court approval is not based on probable cause to believe that surveillance targets have violated any law. The best result would be for Congress to make the standard for judicial approval of a surveillance program the Constitution itself: the Fourth Amendment prohibition against any “unreasonable” search that has protected our liberties for more than 200 years. We have no reason to fear future surveillance programs that are approved under this standard by the FISA court, the Court of Review, and, if it chooses to exercise jurisdiction, the Supreme Court. IMMEDIATE ACTION A third and final lesson that Congress should now heed in revising the surveillance laws comes not from the NSA program but from the events of 9/11: The president must be able to carry out emergency surveillance without any statutory constraint or judicial oversight in response to an attack or the imminent threat of an attack in the United States. Suppose that immediately after the planes hit the World Trade Center, Gen. Michael Hayden, then-NSA director, had told President Bush that he wanted to wiretap calls at other sites in New York City or at airports across the United States where there was some reason to believe al Qaeda was undertaking similar attacks. In this scenario, the president’s authority to order such action could not be constrained by any predetermined statutory limit or requirement of judicial approval. Add a nuclear explosive device to the scenario, and that point is even more self-evident. And if we are lucky, that situation will arise an hour before — rather than after — the first plane hits a building or the bomb detonates. That need for immediate surveillance here in response to the threat of foreign enemy attack in this country is one that the FISA draftsmen — like other Americans before 9/11 — did not contemplate. Edward Levi, the great nonpartisan attorney general under President Gerald Ford who worked closely with Congress to draft the legislation, proposed to deal with the need for emergency presidential power in unpredictable future circumstances — circumstances that he said he “cannot imagine and, with all respect, the members of Congress cannot imagine” — by putting into FISA an acknowledgment that the president would retain power to conduct surveillance as commander in chief under Article II. Levi noted that the president would retain this constitutional power regardless of what Congress said in the statute. Griffin Bell, who was attorney general under President Jimmy Carter when FISA finally passed without inclusion of Levi’s proposed Article II acknowledgment, agreed that the president’s constitutional power was unaffected. That acknowledgment of retained presidential power under Article II, contained in the bill Sen. Arlen Specter (R-Pa.) drafted in the last Congress, has been misunderstood as making the use of the court process “optional.” To the contrary, Levi always said that the president would have a constitutional obligation to use the procedure outlined in FISA whenever it provided a workable means of surveillance. If congressional Democrats (or Republicans) are uneasy with an acknowledgment of Article II presidential surveillance power, an alternative is to put into FISA itself an explicit authorization for the president to conduct surveillance without prior court approval in emergency situations. The time period can be very limited, with the acknowledgment that it would extend to whatever time is needed to obtain court approval for continuing surveillance. And the trigger for such power can be described. But whatever words are used, and whether the emergency presidential authority is statutory or constitutional, the exercise of that emergency power will be by its nature a nonreviewable presidential judgment. It serves no purpose except confusion and self-delusion for Congress to claim it can prescribe standards in an area where discretionary presidential authority is inevitable. A bipartisan congressional recognition of that fact is in the nation’s interest — now and in future crises we cannot predict.
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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