Secret Wiretaps: The Need for Legislative Reforms Commentary
Secret Wiretaps: The Need for Legislative Reforms
Edited by: Jeremiah Lee

JURIST Guest Columnist Ken Gormley of Duquesne University School of Law says that issues arising out of the President's domestic surveillance program are best addressed not by sweeping proposals of censure or legalization, but rather by carefully-crafted legislative reforms…

The White House has acknowledged that in the wake of the September 11th attacks, President Bush authorized the National Security Agency to institute a program to monitor and intercept communications between Americans and individuals abroad, presumably to pierce the al-Qaeda terror network. According to the Justice Department's "white paper" published in January, these domestic wiretaps and interceptions were carried out without warrants. They circumvented the 1978 Foreign Intelligence Surveillance Act, or FISA, by which Congress set up a special court to handle precisely these sorts of emergency requests from the executive branch.

In testimony last month before the Senate Judiciary Committee, Attorney General Alberto Gonzales defended the Bush Administration's practice by insisting that it was "vital to the national defense" and consistent with the President's "inherent powers" to conduct war. President Bush has similarly stated that as commander-in-chief, he must possess the power to fight "our enemies" wherever — and however — he sees fit.

I do not question the good faith of our President and our Attorney General. These are extraordinary times in our nation's history. I agree that the President's power as commander-in-chief — even on American soil — is potentially heightened, at least for a period of time, given the attacks on the World Trade Center and the continued threat of attacks from a new brand of enemy.

At the same time, the defense offered by the Bush Administration for its wiretap program is eerily similar to the losing argument advanced by President Harry Truman in 1952, when he seized the nation’s steel mills during the Korean War. The Supreme Court concluded that Truman’s professed goal of "keeping the country from going to hell," even aggregating all of his powers under Article II, was not sufficient to nullify the Constitution.

As Justice Jackson declared in his now-famous concurrence in the Steel Seizure Case, presidential power was at its high point in matters of foreign affairs and in the "theater of war." It was at its "lowest ebb" on American turf, especially when the president had acted without Constitutional or Congressional support.

Applying these lessons of history, at least four problems are evident with respect to the Bush administration’s secret surveillance program.

First, nothing in the text of the Constitution specifically gives the President the power to bypass the warrant requirement of the 4th Amendment, on the domestic front, even during times of emergency.

Second, the administration's program circumvents a specific act of Congress, which establishes the FISA court and sets forth detailed procedures for conducting surveillance of precisely this sort, involving citizens and residents of the United States.

Third, that power is even further diminished because the Bush administration's program collides with rights of American citizens and residents under the Bill of Rights; namely, those right protected by the Fourth Amendment. This collision potentially puts the President's power at an even lower point on the Constitutional continuum than that of President Truman in the Steel Seizure Case.

Fourth, if one adapts Justice Jackson's Steel Seizure test and applies it to Congress, one discovers that Congress is at its zenith in exercising powers in this matter. Congress has the power to establish inferior courts and to define their jurisdiction. Congress also has the power to enact laws ensuring that the 4th Amendment is observed; it has done so with detailed wiretap statutes since the 1960's. Congress additionally has the exclusive power to legislate on domestic matters and to declare war. Congress is at a high point in terms of its power here. President Bush is at rock bottom.

It has been nearly five years since the events of 9-11. There is a Constitutional mechanism in place (i.e. the amendment process set forth in Article V of the Constitution) if the executive branch believes its powers on the homefront must be enhanced beyond what Congress and the Constitution already provide it. Unless we are prepared to say that the President may unilaterally suspend the Constitution for an indefinite period in order to deal with emergencies that have no end-point, our system cannot survive without demanding that the executive branch abide by the limitations imposed by the Constitution’s text.

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Yet this is not the time for partisan battles or finger-pointing. I do not agree with the current proposal of Senator Russell Feingold (D. Wis.) to censure President Bush. Nor do I agree, however, with recent Republican proposals that would validate the existing secret program and allow the President and a committee of Congress to decide what secret surveillance of American citizens was permissible in the future, excluding the judicial branch from the process entirely. Several legislative reforms are necessary if defects in the Bush Administration program are to be corrected. Achieving these reforms must be our highest priority, as a nation.

First, the FISA statute has been fine-tuned and subjected to judicial scrutiny since 1978. It already provides flexible and relaxed standards to the executive branch. It works. It should be adhered to by the Bush Administration. At the same time, the statute should be updated to deal with three decades’ worth of technological change.

Second, revising FISA to give the executive branch tools to fight the war on terror is laudable. Yet any such revisions must maintain the Constitutional mechanism of judicial review. Federal agencies that engage in secret surveillance programs — seeking to gather up electronic communications involving American citizens that may provide information about foreign terrorists — should be required to apply to the FISA court for a "program-based warrant." This in camera application would require permission from a neutral and detached judge (or panel of judges) to engage in a specific type of surveillance program for a specific period of time. The program-based warrant would explain the nature of the surveillance in detail and set forth reasons why it was impossible for the government to obtain a traditional search warrant. The existing FISA procedures can easily be adapted to permit program-based warrant applications.

Senator Arlen Specter (R.Pa.) has proposed legislation of this type. It is a good framework upon which to build.

Third, the government's surveillance activities brought to the FISA court are conducted in secret. In the overwhelming number of cases, the identity of those individuals whose communications have been monitored or intercepted are not known to the public. Thus, there is often no aggrieved "plaintiff" there is no “case or controversy” to be heard by the courts.

In order to avoid stripping aggrieved U.S. persons of their rights to challenge the Constitutionality of governmental surveillance programs, it is crucial that a mechanism be created to ensure that proper parties have standing. The statute should require the executive
branch to report regularly to a designated “intelligence committee” of both the House and Senate. As part of that confidential reporting function, the Director of National Intelligence would be required to explain the nature of any secret, warrantless surveillance programs. He would also be required to file with Congress, as well as with the FISA court, an inventory of U.S. persons whose communications have been intercepted via secret surveillance, and who have been determined to have no link to terrorism. The designated Congressional committees would then be empowered — after satisfying themselves that national security was not jeopardized — to release the names of aggrieved U.S. persons and to notify such individuals. Such aggrieved individuals would then have standing, directly, to challenge the governmental surveillance activity.

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We know from experience that times of crisis are often when the worst decisions are made, in historical hindsight. Yet no generation is immune from committing errors. Harry Truman believed with moral certainty that he needed to seize American’s steel mills, in 1952, to protect American troops in Korea. History proved him wrong. Yet Congress and the courts did their job by reeling him in.

President Bush confronts a world quite different than any previous President. We should not condemn his efforts, designed in good faith to preserve our nation. At the same time, Congress and the courts owe a duty to our system of government to ensure that the Constitution, and each branch of government to which it assigns, are not disemboweled or diminished, even by a well-meaning President.

This debate is not about right or wrong. It is about attempting to find a common Constitutional ground among equally well-intentioned public officials and branches of government. Hopefully, we as a nation are still capable of accomplishing such an end.

Ken Gormley is a professor of Constitutional Law at Duquesne University. He testified in the Senate Judiciary Committee last month concerning the President’s secret surveillance program.

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