The Lichfield Group

This article appeared in the August 29, 2006 issue of the Washington Times.

United States District Judge Anna Diggs Taylor's suboptimal opinion in American Civil Liberties Union v. National Security Agency (Aug. 17) too weakly condemned President Bush's warrantless electronic surveillance program as flagrantly illegal under the Foreign Intelligence Surveillance Act of 1978 (FISA).

Mr. Bush has conceded the following. After the terrorist attacks of September 11, 2001, he ordered the NSA to target American citizens in the United States for warrantless electronic surveillance based on the hunches of NSA professionals that those citizens were in cahoots with al Qaeda. (Mr. Bush intended to conceal the program from Congress and the American people forever, but that hope was foiled last December when the New York Times published its existence).

The Bush administration has not pointed to a single terrorist plot that has been foiled in whole or in part because of the warrantless surveillance. It intercepts the calls of targeted American citizens sent abroad, but not domestic-to-domestic communications. The latter omission is not because domestic-to-domestic calling is inherently less useful to foreign intelligence but because their interceptions are more politically risky.

FISA was born of about 40 years of intelligence-gathering abuses documented by the so-called "Church Committee" of the United States Senate. Among other things, the committee discovered two decades of illegal mail openings by the FBI and CIA, two decades of illegal interceptions of international telegraphs, and seven years of the misuse of the NSA for nonforeign intelligence purposes. Intelligence illegalities proliferated with no judicial or legislative controls or oversight.

FISA recognized the Constitution is not a suicide pact; and the president enjoys constitutional authority to gather foreign intelligence. But Article I, section 8, clause 18 of the Constitution empowers Congress to regulate that intelligence authority to further interests in citizen privacy and free speech. FISA thus placed measured restraints on the president's authority to target American citizens in the United States. (No limits were placed on intelligence-gathering aimed at suspected terrorists abroad, which constitutes the vast majority of foreign intelligence).

Ordinarily, FISA requires a judicial warrant issued by the Foreign Intelligence Surveillance Court to justify electronic surveillance against a citizen. The executive branch must show probable cause to believe the target is implicated in international terrorism or is acting on behalf of a foreign power. But warrant exceptions are made for wartime or emergencies. In the former situation, the president may gather foreign intelligence without a warrant for 15 days after a declaration of war. In the latter circumstance, the president may conduct electronic surveillance or physical searches for 72 hours without prior judicial approval. FISA judges have been accommodating. Only a handful of warrant requests have been denied, but more than 20,000 have been granted.

Congress has amended FISA six times since September 11 to respond to new communications technologies and to end a Chinese wall between intelligence and law enforcement. As recently as July 31, 2002, Mr. Bush's Justice Department effused to the Senate Intelligence Committee that FISA was nimble, flexible and workable. Indeed, the department continues to rely on FISA for domestic-to-domestic interceptions.

Mr. Bush claims unchecked power to gather foreign intelligence by whatever means he believes is helpful to national security, including mail openings, breaking and entering homes, reading e-mails, or torture. Supreme Court Justice Robert Jackson discredited that alarming theory in a concurring opinion in Youngstown Sheet & Tube v. Sawyer (1952). As President Franklin Roosevelt's attorney general, Jackson was a strong proponent of executive power as World War II unfolded. But he had also been chief prosecutor at the Nuremberg war crimes tribunal.

In Youngstown, Justice Jackson lectured about President Harry Truman's claim of unlimited power as commander in chief to seize businesses during wartime: "The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by King George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. ... This contemporary foreign experience... suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the executive who exercises them. That is the safeguard that would be nullified by our adoption of the 'inherent powers' formula."

In sum, Judge Diggs should have held President Bush's warrantless surveillance program violates FISA, that FISA is indisputably constitutional, and stopped there.Press ability to publicize chronic government lawlessness or follies was crippled by U.S. District Judge T.S. Ellis III in United States v. Rosen and Weissman (Aug. 9, 2006). Against a First Amendment attack, the district judge sustained the Espionage Act's prohibition of publishing to an authorized person nonpublic "information relating to the national defense" that might damage the United States or be useful to an enemy. The U.S. 4th Circuit of Appeals should reverse.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.