John Schmidt, who served as Associate Attorney General for four years under president Clinton, has an article in the Legal Times defending Senator Specter’s legislation that would, among other things, provide judicial review of the National Security Agency surveillance program. Schmidt’s essay is the strongest, and most coherent, articulation of this perspective that I have seen to date, so it is well worth a read (even, perhaps especially, if one disagrees).
Schmidt argues that the President has inherent executive authority to conduct surveillance on foreign enemies and that FISA did not limit this authority. From that perspective, Schmidt argues, enacting the Specter bill would be wise (although not necessary).
the history of FISA’s exclusivity provisions demonstrates that they were a mistake from the beginning. Far from protecting the rule of law, they ignore the law of the Constitution. Eliminating them now would help end confusion about the president’s authority in this critical area of national security.
Among other things, Schmidt argues, FISA’s drafters and contemporary legal scholars did not view the statute as the exclusive means for authorizing surveillance.
[Ford Attorney General Edward] Levi assured Congress that President Ford would use the FISA process in all circumstances he could then anticipate. But he warned that the unpredictability of foreign threats to the nation and the likelihood of ongoing changes in communication technologies made it “extraordinarily dangerous” to pass a statute that did not acknowledge the president’s retained surveillance power.
“The very nature of the reserved presidential power, the reason it is so important,” said Levi in his congressional testimony, “is that some kind of emergency could arise which I cannot foresee now, nor, with due deference to Congress, do I believe Congress can foresee.”
Levi emphasized in congressional testimony that there is “a presidential [surveillance] power which cannot be limited, no matter what Congress says.” But he noted that Congress had an important role to play in setting forth “the understanding of the constitutional power” and that “it would be most unfortunate if it were suggested that those who passed this legislation thought that there was no such constitutional power in the hands of the president beyond the scope” of FISA.
Levi’s view that the proposed statute must disclaim any intent to deprive the president of his Article II power was supported in congressional testimony by the nation’s leading constitutional scholars. The late professor Herbert Wechsler of Columbia University School of Law said that the legislation “necessarily reserves” the constitutional power of the president. Professor Paul Mishkin of the University of California’s Boalt Hall School of Law explained that a provision “which disclaims any intention to limit any ultimate inherent power which the president may have . . . clearly goes as far as Congress constitutionally can to establish and maintain legislative controls” in the area of wiretapping. Francis Allen, then the dean of the University of Michigan Law School, observed, “Congress is hardly in a position to undertake a full and a definitive statement of the limits of presidential power in these areas under all possible future contingencies.”
In an interesting twist, Schmidt argues that the Specter bill will, as a practical matter, increase the executive’s accountability in the exercise of this authority.
The president’s power to order surveillance of a foreign enemy that is planning to attack this country is a practical fact. The Specter bill does not define the limits of that constitutional power but simply acknowledges its existence and creates a judicial mechanism for the review of its exercise. Senators and congressmen who vote for the legislation can continue to believe, if that is their view, that Bush went beyond the constitutional limits in approving the current NSA program.
On the other hand, if Congress rejects the Specter bill, then the president, regardless of what individual senators or congressmen may believe about the limits on his power, will continue to exercise that power without any constraint other than his own constitutional judgment in circumstances where the current FISA process is unworkable.
For a quite different perspective, see the various postings on the subject at Balkinization, including these two posts by Marty Lederman and this one by David Barron (among many others on the blog that address the subject).