March 09, 2006,
The White House has hammered out a deal with key senators on a proposal to give congressional blessing to the National Security Agency (NSA) surveillance program. The president has the inherent authority to conduct the program, which is organically connected to his war-making powers. But, realistically, Congress was not going to allow the NSA brouhaha to pass without taking some action. The key question, then, was what form congressional intervention would take, rather than whether there would be any or not.
In light of that, the compromise between the White House and the Republican senators on the Senate Intelligence Committee seems a reasonable one. The standards should be that any legislation not infringe on the president's inherent authority (at least not any more than the Foreign Intelligence Surveillance Act already does), not increase the power of the courts over national security, and not hamper the operation of the NSA program. This deal appears to meet these standards, although much will depend on the drafting and even more importantly, the implementation.
First, it would create a bipartisan seven-member “terrorist surveillance subcommittee” that would be fully briefed and kept up-to-date on the program. This is a good idea, although it will represent an unprecedented level of congressional involvement in the executive's intelligence activities. Congress wants to hear justifications for each and every act of warrantless surveillance. This is extraordinary. The White House should make it clear that with this new oversight comes new responsibility. Usually, congressional oversight means merely after-the-fact finger-pointing. In this case, it should mean that Congress is fully vested in the NSA program and committed to helping make it work. That will require Congress policing itself when it comes to leaks.
The deal would also require the administration to obtain wiretapping warrants from the FISA court whenever possible. This is where the legislative language will be particularly important. If it is merely hortatory, it won't be objectionable. In circumstances where getting a FISA warrant is possible when the Fourth Amendment-required probable-cause standard can be met and there is time for the extensive approvals necessary of course the administration should get one. The problem will be if the legislation in any way extends the reach of the FISA court.
Bush's critics like to portray the court as a rubber stamp, which leaves one to wonder why they also maintain that it is so important. But the court isn't so pliable. It tried to eviscerate a central portion of the Patriot Act shortly after its passage, demanding that, contrary to the legislation, the pre-9/11 “wall” between prosecutors and counter-intelligence agents remain in place. The court was slapped down by the FISA court of review. The Justice Department reports that, in the two years that followed that ruling (2003 and 2004), the court, which had a history of almost never fiddling with the department's surveillance requests, made 173 “substantive modifications” of applications before granting them. The total number is now undoubtedly much higher than that figures for 2005 and 2006 have not been provided to Congress yet.
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Under the deal, the administration could conduct surveillance for 45 days without FISA approval, so long as one person on the monitored communication is outside the United States and is a suspected member of a terrorist group exactly what appear to be the circumstances of the bulk of NSA wiretaps. This is a kind of retroactive blessing of the program. After 45 days, the attorney general would have to tell the newly created subcommittee why getting a FISA order wasn't possible. This shouldn't be a problem so long as there have been good reasons for keeping the NSA program out from under FISA, as we believe there have been.
Given what might have been in the offing from Congress, none of this is particularly objectionable. Sen. Arlen Specter wanted to extend the reach of the judiciary by getting the FISA court (bizarrely) to issue an advisory opinion on the constitutionality of the NSA program, and effectively conduct oversight over the program. But oversight is not the role of the courts, but of Congress.
The White House should be very clear what it expects from this bargain. There can be no leaks, and if there are, Congress will have disgraced itself as an institution. If Congress is going to be to be informed of the NSA program on such an intimate basis, it means that the irresponsible criticisms of the program should stop. Now is the time for Congress either to put up or shut up. If it thinks the program is lawful and necessary to our security, it can come on board as outlined in this deal; if not, it should cut off the program's funding.
So far, count us as encouraged. This nascent bargain between the White House and the Senate Intelligence Committee has the makings of that rarest animal on Capitol Hill these days judicious and sensible action to address a roiling controversy.