Big Lizards:Blog:Entry “FISA or Congress Should Oversee NSA Program”

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February 18, 2006

FISA or Congress Should Oversee NSA Program

Hatched by Dafydd

Really, I have no problem with what Sen. Pat Roberts (R-KS), chairman of the Senate Select Committee on Intelligence, just said:

The chairman of the Senate Intelligence Committee, breaking ranks with the president on domestic eavesdropping, says he wants a special court to oversee the program.

But less than a day later, a top aide to Sen. Pat Roberts, R-Kan., sought to clarify his position.

Roberts told The New York Times that he is concerned that the secret court established by the Foreign Intelligence Surveillance Act could not issue warrants as quickly as the monitoring program requires. But he is optimistic that the problem could be worked out.

"You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit," Roberts said Friday.

So is Roberts being inconsistent? Incoherent? Is it flip-flopping? Not at all... this perception only exists because most people in the Antique Media talked themselves into believing that "oversight" is synonymous with "complete day-to-day control." That is, they think that any sort of court oversight must necessarily require a warrant prior to every act of surveillance by the National Security Agency.

In fact, oversight works very differently. Roberts' own committe, the Senate Intelligence Committee, has "oversight" over the CIA; but that doesn't mean that CIA officials must get committee approval before engaging in any spying. Rather, it means that the committee periodically reviews what the CIA is doing and has done; and if there is a problem, the committee can summon CIA officials to explain what happened (in secret session).

This model could work fine with the FISA court and the NSA al-Qaeda intercept program: the program would continue as before, with all decisions made by the National Security Agency, the national intelligence director, and up the chain to the president. Then periodically -- let's say every three months -- the NSA submits a quarterly review to the FISA court of what surveillance it has conducted, how it obtained those telephone numbers or e-mail accounts, whether Americans were involved, and if so, what steps the NSA took to safeguard the constitutional rights of those Americans caught up in this program.

The FISA court could review this report. Of all federal courts, the one set up by the Foreign Intelligence Surveillance Act is best at keeping secrets -- as the recent reference to "Sealed Case No. 02-001," decided in 2002 by the FISA Court of Review, should make clear.

Even the Supreme Court's Hamdi decision in 2004 allowed for some sort of judicial review of the executive's actions during wartime, albeit in the more normal judiciary mode of examining specific cases brought by specific defendants. But I don't know if there is precedent for (or against) a court more generally overseeing a program's constitutionality, as Roberts evidently proposes here.

It is more natural and fitting for those quarterly NSA reports to go to the Senate and House Intelligence Committees -- since Congress, not the courts, is charged with overseeing the executive on a regular basis. I'm less pleased at a plan that would put such oversight in the hands of the judiciary, though I'm not radically opposed to the idea.

Captain Ed makes somewhat the same point in a post of his today -- though he seems skeptical that even Congress has any role here:

Due to the current political climate and a desire to move on with the program, the White House has signalled that it will respect reasonable oversight conditions of Congress. Now, however, Congress has decided that the political cost of owning the surveillance program might be too high and has decided to punt the entire responsibility to a group of appointed secret judges instead.

After quoting from a story similar to the one I linked above, Cap continues:

I still think either approach is superfluous; the executive has always had the ability to perform warrantless searches for those who cross international borders, including luggage and persons, and that's in peacetime. Where FISA demands that the executive bow to Congress in wartime espionage, the statute is clearly not only unconstitutional but also defies 200 years of precedent in the allocation of war powers. [Emphasis added]

But this is not what Roberts suggested. What Captain Ed means is that Congress cannot remove the president's Article II power to wage war. But certainly there is nothing in the Constitution barring Congress from overseeing the executive's conduct in that war. Congress can defund the war, for example; it must consent to the president's appointment of the secretary of defense and the service secretaries, even during wartime; and clearly it can choose to impeach a president -- even right in the middle of a war (that last may be unwise, but it's not unconstitutional). Each of these duties might require Congress to investigate the executive's actions... hence the need for committee oversight.

As to the courts, Hamdi gave great latitude to the president and implicitly noted his inherent powers... though it stopped short of formally endorsing them, as John Hinderaker explains, since it found the Authorization for the Use of Military Force sufficient to justify the capture and detention of even American citizens as enemy combatants during wartime. But it also clearly established that courts could and would review individual cases.

Would we really want it otherwise? Would we really want a future President Hillary Rodham to be allowed to arrest and detain as an "enemy combatant" the future Sen. Michael Steele, her Republican opponent for re-election? The balance the Court struck in Hamdi was correct.

And a balance can be struck here which would reassure the people that the NSA program is not trampling over anybody's civil liberties, would assuage the wounded feelings of a Congress that correctly believes it has some oversight authority over the program, yet still leave the day to day operation of the program completely in the hands of the executive -- that branch best suited to instant action, precisely because it is neither democratic nor deliberative in operation. Cabinet members may advise, but they get no vote in what the president decides to do.

If that's what Roberts means by "oversight," and I think it is, then the president will have no objection to signing such a bill, and it will not in any way impair his inherent and completely constitutional authority to conduct the war as he sees fit -- subject only to post-hoc review by the relevant branch, whichever that turns out to be.

(And if he wants to make it clear, he can always include a signing statement.)

Hatched by Dafydd on this day, February 18, 2006, at the time of 6:04 PM

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Comments

The following hissed in response by: RiverRat

This model could work fine with the FISA court and the NSA al-Qaeda intercept program: the program would continue as before, with all decisions made by the National Security Agency, the national intelligence director, and up the chain to the president. Then periodically -- let's say every three months -- the NSA submits a quarterly review to the FISA court of what surveillance it has conducted, how it obtained those telephone numbers or e-mail accounts, whether Americans were involved, and if so, what steps the NSA took to safeguard the constitutional rights of those Americans caught up in this program

The courts should reject this solution. They are constitutionally precluded from providing "advisory" opinions. The courts are designed to resolve conflicts between those who have standing before the courts. To do what Roberts and you suggest is to further enhance the roll of the courts as an unelected "supreme legislative Council"...Think long and hard before you endorse an Iranesque "Supreme Council".

Oversight is the duty of Congress. Don't allow abdication of their constitutional duties. The founders would be very angry with you, my friend.

The above hissed in response by: RiverRat at February 18, 2006 6:38 PM

The following hissed in response by: RBMN

The President already has the constitutional authority for what he's doing. He doesn't have to do anything just to make Congress happy, and he shouldn't. Collecting foreign intelligence has always been part of waging war. Always will be. Let someone who disagrees, and thinks they have the standing to do it, take it to the Supreme Court. But based on what the Supreme Court has ruled lately, they won't have much luck. Based on recent cases, the justices would have to overrule themselves. According to Article Two of the US Constitution, Commander-in-Chief is not a job for a committee of judges, or any other type of committee. Congress's beef is with the Constitution--not the President.

The above hissed in response by: RBMN at February 18, 2006 8:51 PM

The following hissed in response by: Dafydd ab Hugh

Okay... so RiverRat didn't read to the end of the post -- and RBMN didn't read past the headline! <G>

Dafydd

The above hissed in response by: Dafydd ab Hugh at February 18, 2006 10:21 PM

The following hissed in response by: RiverRat

Dafydd,

I did read to the end and you're still advocating a 3 month advisory review by the courts my friend. They can't do it! Someone with standing has to bring a suit. What am I missing?

The above hissed in response by: RiverRat at February 19, 2006 2:28 AM

The following hissed in response by: Dafydd ab Hugh

CDQ:

What am I missing?

That I already anticipated your point:

Even the Supreme Court's Hamdi decision in 2004 allowed for some sort of judicial review of the executive's actions during wartime, albeit in the more normal judiciary mode of examining specific cases brought by specific defendants. But I don't know if there is precedent for (or against) a court more generally overseeing a program's constitutionality, as Roberts evidently proposes here.

It is more natural and fitting for those quarterly NSA reports to go to the Senate and House Intelligence Committees -- since Congress, not the courts, is charged with overseeing the executive on a regular basis. I'm less pleased at a plan that would put such oversight in the hands of the judiciary, though I'm not radically opposed to the idea.

And I concluded making it very plain that this "oversight" should be just that: oversight, not control by someone other than the executive:

And a balance can be struck here which would... still leave the day to day operation of the program completely in the hands of the executive -- that branch best suited to instant action, precisely because it is neither democratic nor deliberative in operation.

I think I made just the points you did.

One final point: if the courts did strike any such oversight down, I can live with that, too. My preference is that Congress perform its normal oversight duty, working through the committee structure already set up for such matters (the I-coms of both houses).

The exec should run the program, but I do want someone looking over its shoulder: I trust Bush, but I don't trust the Mr. or Mrs. X who will follow in 2009.

Dafydd

The above hissed in response by: Dafydd ab Hugh at February 19, 2006 7:01 AM

The following hissed in response by: RBMN

I DO trust Mr. or Mrs. X, because I still trust American voters to require their candidate's minimum national security credentials, and if a President ever goes off the deep end, as the Nixon Administration did, I trust Congress to promptly impeach (or just forecast impeachment, in Nixon's case) and remove him or her from office. That's the only solid check on a Commander-in-Chief in the performance of his or her duties in wartime--impeachment for "high crimes." Commanders need the flexibility to make hard choices. In war, the American ship has one captain. The Framers knew that, but we seem to have forgotten it along the way.

The above hissed in response by: RBMN at February 19, 2006 1:29 PM