Politics & Policy

Fisa Fallacies

Bush's unconstitutional critics.

Is it written somewhere that the Constitution can be violated only by the president? One would think so, given the debate over the secret National Security Agency program to monitor, without court approval, calls between suspected al Qaeda operatives overseas and people in the United States. Opponents of the program say President Bush has trashed the Constitution, in particular the Fourth Amendment’s prohibition against unreasonable searches.

The Constitution, however, doesn’t exist solely to constrain the executive, as those braying about the NSA wiretaps seem to suggest. It confers powers on the executive as well as limiting them. If those powers are abridged by another branch of the government, the Constitution is being violated–and not, obviously, by the president.

Thus, only one player so far in the NSA controversy has been held by a court to have probably violated the constitution, and he’s a judge. Judge James Robertson resigned from the Foreign Intelligence Surveillance Act court–the secret court that approves domestic wiretaps related to national security–to protest the NSA program, making him something of a cause celebre among Bush bashers. But he’s an odd hero, given that his contribution to the debate over the executive’s surveillance power was a flagrant error.

In a 2002 decision, Judge Robertson and others on the FISA court imposed restrictions on the Bush administration’s conduct of foreign-intelligence investigations that weren’t mandated by the language of the 1978 FISA statute, and that had been explicitly made unnecessary by the 2001 Patriot Act. The Bush administration appealed, and the FISA court of review issued a stinging rebuke to Robertson, et al.

The court of review, apparently a stickler for such things, said the FISA “court did not provide any constitutional basis for its action–we think there is none–and misconstrued the main statutory provision on which it relied.” Besides that, it was world-class jurisprudence. By effectively trying to micromanage the Justice Department, the decision continued, “the FISA court may well have exceeded [its] constitutional bounds.”

Would that the court could permanently monitor the debate over the NSA program. Democrats who argue that Bush has abused the Constitution are, like Judge Robertson, themselves Constitution-abusers. The president has the authority under Article II of the Constitution to defend the United States. If he can bomb the nation’s enemies overseas without a court’s approval, he certainly can listen to their conversations. (FISA, which requires a special warrant for foreign-intelligence surveillance in the U.S., doesn’t apply abroad, making cross-border calls a murky area).

Every administration, liberal or conservative, has claimed this warrantless surveillance power, and no court has ever denied it. The FISA court of review explained, citing the 14th Circuit’s 1980 decision in a case involving the surveillance of a Vietnamese spy named David Truong, “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The court added, “We take it for granted that the President does have that authority.”

The court in the Truong case noted that the executive “not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs.” And the Constitution’s framers knew what they were about, according to the Truong court: “Attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign-intelligence initiatives.”

That argument rings all the truer in the Age of al Qaeda, when a fast-moving, amorphous enemy operates both outside and within U.S. borders. Like it or not, the president has the constitutional authority to wage the war on terror. His detractors don’t like it, so they pretend the authority doesn’t exist, and trample on the Constitution in the process.

Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.

(c) 2006 King Features Syndicate

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