Imagine if a public official, safe in the shadows of anonymity, penned a directive that radically rewrote American intelligence-collection law — statutes enacted by our democratically elected officials and signed into law by elected presidents (including elected Democrat presidents, hyper-sensitive to privacy concerns).
Imagine that, rather than having such a critical national security decision made in the light of day, the anonymous public official issued the directive in secret — insulated from any political process in which the people whose lives hang in the balance were free to determine the appropriate line between liberty and security.
Imagine that we were not just barred from learning the name of the official; we were actually foreclosed from reading the directive under which we were now ruled.
No, I am not talking about “torture memos.” I am not talking about a process in which unelected bureaucrats in the Justice Department write secret legal memoranda which, critics contend with great force, fly in the face of anti-torture statutes signed into law by President Clinton in the mid-Nineties, in addition to significantly diluting more recent law, enacted in 2005, to outlaw cruel, inhuman and degrading treatment.
Nor am I talking about President Bush’s secret directive that the National Security Agency conduct warrantless eavesdropping in contravention of the Foreign Intelligence Surveillance Act (FISA), signed by President Carter in 1978.
It is noteworthy, though, that in both these instances, liberal Democrats, the mainstream media, legal scholars and civil libertarians have been famously consumed with righteous rage. It did not matter, especially when it came to the NSA program, that there were sound constitutional arguments supporting presidential authority. Nor was it of consequence that the administration had briefed congressional leaders of both parties.
No, it was tyrannical secrecy that so offended them. It was the noxious thought that democratically enacted statutes could be altered or ignored under the facile cover of “classified information.” How dare government conduct itself this way? What about the rule of law? Some, in fact, were sufficiently enraged to suggest the conduct was impeachable.
But today, I am not talking about stealthy executive branch officials.
Today, the topic is the FISA court. And there’s no need to “imagine” — the example is only too real.
Earlier this year — in the middle of an armed conflict against an international terror network which is promising renewed, 9/11-style attacks against the Homeland — an anonymous judge of the secret FISA court issued a classified ruling which radically altered decades-old, bedrock assumptions of foreign-intelligence law. The stealth directive deeply damaged the ability of the United States to investigate and prevent terrorist attacks.
We have not been permitted to learn the name of the judge. We have not been permitted to read the ruling — a ruling that so rocked the political branches that it became the subject of emergency curative legislation this summer. Legislation that is set to expire in about four months … after which we could once again be living not under FISA but under the secret whims of the FISA court.
Specifically, the judge ruled that our intelligence community now needs the permission of a federal judge before it can conduct electronic surveillance on non-Americans outside the United States who are communicating with other non-Americans outside the United States.
That is, if an al Qaeda operative in Iraq is calling or emailing an al Qaeda chieftain in Pakistan to coordinate terrorist operations against, say, American marines in Afghanistan and Baghdad, the CIA may not simply bug those calls. Instead, the Justice Department must make an application to the secret FISA court for permission to monitor.
The surveillance may then proceed — not on the basis of military necessity, and not if American commanders believe it is vital for the protection of our forces or the advancement of their mission — but if a FISA judge, in his or her infinite wisdom, agrees that there is probable-cause and that no one’s privacy rights are being unduly infringed.
It might, of course, be noted that neither Iraq nor Pakistan is in the United States, and that the jurisdiction of American federal courts does not extend outside our nation. It might also be observed that Iraqis and Pakistanis who are outside the United States and whose only contact with our country consists of murdering U.S. Marines do not have rights under the American Constitution (or even under the FISA statute).
It might even be taken into account that every U.S. military leader since George Washington has observed that wars cannot be won, and nations safeguarded, absent the timely collection of intelligence about enemy plans and actions.
But today, we don’t get to consider these elementary facts. Instead, decisions — life and death decisions for us and our nation — are made in secret.
And in this case, made in secret by an official no one elected and no one can vote out of office. An official who, at the end of the day, is a just a lawyer — an elite lawyer, to be sure, but someone whose professional status provides utterly no special expertise in intelligence-collection or the conduct of war.
No Democrat seriously seeking the presidency would dare come out and say, “I think we should require court permission before we turn the CIA loose on al Qaeda in Pakistan.” That would be her political epitaph.
And if President Bush or any Republican presidential candidate proposed such a thing, his career would be over and Democrats would be atwitter at the opportunity, finally, to brand the opposition as irrationally soft on terrorism.
Why on earth, then, do we sit silent when decisions of this magnitude are made by FISA judges? It is not, after all, the first time. Far from it.
About the only thing Republicans and Democrats could agree on during the Patriot Act debate was the need to break down barriers obstructing government agents from sharing intelligence. The dismantling of this “wall” became a federal law, enacted in 2001 by overwhelming bipartisan margins. But in 2002, the FISA court, by fiat, attempted (ultimately, without success) to repeal the law, rewrite FISA, and reinstitute the wall.
President Bush ignores FISA with lawful justification and there is screaming from the rafters. The FISA court does it with no justification and there is … silence.
And mind you, the FISA court’s gambit came within mere months of the 9/11 attacks and the deaths of nearly 3000 Americans. If elected officials had tried to do such a thing, they would today be in another line of work. But this was unelected judges, so somehow that makes it all okay.
Well it’s not okay. “Rule of law” does not mean rule by judges. The Supreme Court has clearly acknowledged that “the Framers did not make the judiciary the overseer of our government.” Courts have pride of place only in their proper sphere, and that sphere does not include national security and the conduct of war.
Those functions are political. Not political in the pejorative modern sense of gamesmanship; rather, political in the classic sense of policy matters as to which decision makers must be accountable to the people whose lives are affected.
Judges are not politically accountable. We can’t fire them when they get it wrong — and, in the case of the FISA court, we usually don’t get know who has gotten it wrong, or even what the “it” is.
Right now, congressional Democrats are fighting FISA reform. They don’t contest that the antiquated statute badly needs fixing. Yet, they want the main problem, the FISA court, to be seen as the solution. Their “fix” is to get the judges more involved in foreign intelligence collection, including overseas.
FISA was a bad idea from the start, but at least those who conceived it understood that judges had no business interfering in the operations of American intelligence services overseas. The idea was to give Americans protection from arbitrary surveillance that might interfere with constitutional rights to privacy and political dissent. It was not to intrude judges into places where they had no jurisdiction, and where there were neither Americans nor American rights to protect. Indeed, since espionage — which is what we do overseas — is illegal in virtually all countries, having the judicial branch involved in it is unseemly as well as unwise.
Many of today’s Democrats, however, are beholden to the party’s hard-left base, which believes American power is always the problem. For them, the FISA court is a perfect tool. It allows them to handcuff our intelligence agencies without leaving their fingerprints on the restrictions. They simply insert the FISA court to do their bidding, in secret. If anyone resists, they cry: How dare you oppose the rule of law?
We should resist. Government by stealth is not the rule of law. Separation-of-powers, on the other hand, is fundamental to our law. It dictates that we must not have the unaccountable, non-political branch making quintessentially political decisions on which our lives depend.
If American intelligence law is going to be changed, it ought to be changed in the light of day, with our elected officials answerable for their policy positions.
We have seen government by secret rulings. It doesn’t work. And for a free, self-determining people, it ought to be unacceptable.
– Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.