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Attorney General-designate Michael Mukasey appeared before the Senate Judiciary Committee last week and promptly declared independence of thought. Good for him. The law needs a dispassionate, objective analyst. Mukasey deserves praise for disavowing an overbroad torture memo. Likewise, he was spot-on in proclaiming that “partisan politics plays no part in either the bringing of charges or the timing of charges,” a statement that likely brought thousands of DOJ lawyers to their feet to applaud. In these things, Mukasey reasserted the power of “no.” He would have no problem, he said, resigning if the president ignores his legal or ethical reservations about administration policy: “I would try to talk him out of it or leave.” All well and good and as it should be, but nevertheless incomplete. Objective advice may mean saying no to the president, but it can also mean saying no to Congress. Independence of thought runs in both directions on Pennsylvania Avenue, as a somewhat flummoxed Sen. Russ Feingold (D-Wis.) perceived when Mukasey, on day two of his confirmation hearings, opined that the president has foreign intelligence surveillance authority without a court order. Judging by their consternation, it’s not clear that lawmakers calling for an independent attorney general had ever contemplated that they could be on the wrong side of the legal analysis. Mukasey’s independent streak will get a workout if the House Judiciary Committee persists in unnecessarily fettering the president’s authority to gather foreign intelligence. A wiser bill has been approved by the Senate Intelligence Committee, but whether the senators will be able to talk sense into their House counterparts is far from clear. TALKING ABOUT AL-QAIDA In August, Congress took an important step toward modernizing the Foreign Intelligence Surveillance Act of 1978 by passing the Protect America Act. In brief, the act temporarily re-affirmed the executive branch’s authority to gather foreign intelligence without court order on targets located in foreign countries, even if those targets are calling Peoria. Some in Congress apparently think that is just awful, as well as violative of some major unwritten theorem on privacy or liberty. Neither contention is true. Until recently, FISA was never understood to require a court order to obtain foreign intelligence from a target outside the United States. But these days, communications between two parties located overseas may be routed through electronic equipment in the United States. Because of this, the secret FISA court apparently concluded that the old statute necessitated checking with the court before eavesdropping on those calls. While the Protect Act corrected that mistake on a temporary basis, the correction must be made permanent, lest terrorists be able to run circles around our nation’s defenses. Bluntly put, a court order in advance of gathering foreign intelligence is legally and constitutionally unwarranted. Why? Well, for one thing, the happenstance of technology cannot and did not change Congress’ original intent not to have such foreign intelligence activities weighed down by judicial micromanagement. Courts are slow and deliberative. Terrorists are anything but. And their operations are not laid out in the kind of neatly prepared documentation that judges ponder. Moreover, under the Constitution, courts have not been directed to provide for the nation’s defense or oversee foreign policy. Such are largely the responsibilities of the president, and they should not be usurped by judges. Regrettably, some all-too-partisan members of the House Judiciary Committee (or their overly partisan staffs — yes, Judge Mukasey, they exist not just in the White House but on Capitol Hill, too) want to stand the constitutional assignment of powers on its head. Under the House bill, for example, prior court approval for foreign surveillance would almost always be needed. And if the court did not approve, the collection of intelligence would have to stop during the appeal. Terrorists, of course, could fly right through that gaping hole in our defense. Again wisely, the Senate bill limits court involvement to reviewing procedures for choosing targets, though it would be important that procedural review not mutate into substantive second-guessing. NO WAITING FOR TERROR Keeping track of terrorists is not the same as investigating local burglaries. Domestic law enforcement begins with evidence of a crime or a reasonable suspicion that a crime is about to be committed. Police search for further evidence to identify the wrongdoers and bring them to justice. The Fourth Amendment limits the extent to which police may infringe upon citizens’ reasonable expectations of privacy. Warrants are issued based on probable cause that a specific individual has committed or intends to commit a specific crime. Foreign intelligence gathering, by contrast, does not focus on what has already been done. Intelligence agencies start with the identity of one known threat and monitor his phone calls and other communications to discover other associations with the goal of pre-empting the next 9/11. Sophisticated computer programs search through millions of numbers to narrow the human agents’ focus to a hopefully much smaller, but lethal, terrorist subset. This is no invasion of privacy. It’s more akin to the use of computers to scan the fingerprints of those applying for government jobs or benefits. Or the multiple means of scanning those in airport lines to finger a potential hijacker. It is simply a matter of prudence to let computers examine phone and e-mail connection records in order to expose those who are intent on killing us. It is also a matter of basic fairness to thank, not sue, the private telecommunications companies that have cooperated with the government in this work. Yet, unlike the Senate bill, the House bill to amend FISA stiffly refuses to protect these companies that have helped protect us. This is wrong. HAMSTRUNG BY RULES The problems with the House bill don’t end there. For example, it draws artificial lines between the types of foreign intelligence that can be gathered, distinguishing conversations about terrorist threats from other foreign affairs. It would take days or weeks for the already overtaxed translators to comply with that misguided level of review. The inspector general of the Justice Department would also be given an unheard-of oversight role, one that is now handled by the elected members of the congressional intelligence committees. Bringing the inspector general into the classified loop just increases the risk of leaks. In Federalist No. 41, James Madison reminded us to be wary of tying our hands when others do not. He wrote, “The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others.” Layers of overseers armed with regulations may be understandable in Social Security or unavoidable in Medicare; they are unnecessary, nay, dangerous, in matters of national self-preservation. Congress should enact responsible, clearly stated, long-term authority affirming the president’s authority to gather foreign intelligence without a court order, and it should also give the telecom industry a well-deserved pat on the back. If Congress fails to meet these needs, Mukasey should be ready to advise the president to veto such seriously flawed legislation and then explain to lawmakers what the Constitution permits the president to do on his own authority. That won’t be easy. Senators who initially fawned over Mukasey may then cast him into the ranks of the heretics. As Mukasey witnessed in the warm-to-chilly turnabout at his hearing, it seems proclaiming that “the president doesn’t stand above the law” wins praise, while reminding Congress that “the law emphatically includes the Constitution” only merits scorn when the Constitution happens to be on the president’s side. The nation is fortunate to have an attorney general nominee seemingly capable of saying both when warranted.
Douglas W. Kmiec holds the Caruso chair in constitutional law at Pepperdine University. He served as assistant attorney general and head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush.

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