The Right Coast

January 25, 2006
FISA and statutory construction
By Tom Smith

Here's a weird little statutory construction paradox with FISA.

Another oddity. Why would FISA provide for warrantless surveillance during wartime for 15 days only after a declaration of war? This is a very strange provision, if you think about it. There is no reason to expect that the first 15 days of a war would be when warrantless surveillance would be most useful. Or is the idea that in the event of a sneak attack, you might need to begin eavesdropping immediately, but 15 days would give you long enough to line up your applications to the FISA court? If so, that is certainly an outstanding example of Congressional stupidity. It almost seems that the 15 day provision is there to show that the President's Article II power to surveil during wartime has not been entirely eliminated; that is, the 15 day provision has a kind of place holder feeling to it, more certainly than making any kind of practical sense.

I have not read part II of the DOJ memo yet, and I plan to do so with an open mind, but my intuition is that the 1978 Congress, benighted body that they were, probably did intend to put all surveillance, even wartime foreign intelligence surveillance involving US persons, under the regulation of the statute. It may be, that is, that there just is not any ultimately plausible reading of FISA that does not put it into conflict with a reading of Article II that gives the President powers one would certainly hope he has. I tend to think Congress should just repeal FISA and start over.

To bloviate further on this -- the politics of all this is most discouraging. The Democrats, for their own sake and the country's, really should try to develop a position on national security a little more intelligent than Bush lied, and Bush broke the law. Protecting national security against very nasty and clever enemies in an age of high tech WMDs and low tech fanatical wickedness, and preserving civil liberties at the same time, demands deep thought and sincere grappling with the trade offs, not the sort of cant we have been getting from most Democratic leaders and opinion makers. As my Democratic colleague Larry Alexander observed, and as I have also from time to time, nothing would be more damaging to civil liberties than another catastrophic attack on American soil. If you want to see domestic spying on all of us, just wait until a dirty bomb goes off in Chicago, or somebody drops a pound of weaponized anthrax on the floor at LAX. Our enemies want to prove open societies cannot work in the face of terror, and we do not want to test the point. People for whom civil liberty is not just a flag of convenience for their anti-Republican or anti-American animus need to get serious about the threat side of the equation.

Signifying Nothing has this explanation. The 15 day period gives Congress some time to decide whether to extend the President's power to surveil without a warrant. Otherwise, the normal FISA requirement kicks in. Without knowing more, this does strike me as a plausible guess of what Congress was thinking. If one looked, one might find other parallels and a common underlying conception of the separation of powers in FISA and the War Powers Act.

There seems to be this meme going around the liberal side of the blogosphere that conservatives are somehow doing an about face on presidential power. This is news to me. I served in the Reagan White House, and there was a great deal of interest and enthusiasm back then in presidential powers. Robust presidential powers have been a big theme among conservative constitutional scholars at least since the 1980's. Someone more energetic than I could put together a long bibliography of law review articles substantiating the same. I'm not sure where that confusion comes from.

Another complaint is that conservatives want to give the President a "blank check" to wage war, including conducting domestic surveillance where necessary, in fighting off terrorist enemies. This criticism may not be exactly fair, but it is one worth making. But on the other hand, I think it is perfectly obvious that the Church-McGovern-Fulbright etc. model of how Presidential war powers should work, a kind of collective closing of the barn door after the horse of Vietnam had long fled, is completely inadequate to the necessities of defending against enemies such as al Qaeda. There is a long story to be told here, which others can do better than I. But as I see it, the whole set of liberal ideas we got out of the Vietnam era -- the "Imperial Presidency," the revisionist history of the Cold War a la W A Williams and Walter LaFeber (my advisor at Cornell), neo-colonialism, etc. etc are just all wrong. Just a dead loss. It is about as useful to us now as a snowmobile in Palm Springs; they were probably wrong answers to the old questions, but they are not even addressed to the questions we face now. The threat now is not, if it ever was, that some big bad America, led by its President, is going to crush some nice democratic socialist revolution of land reformers in some godforsaken third world dictatorship. The Islamofascists defy even the considerable imaginative powers of the American left to recharacterize them as the way to the future. A Leninist thug may look like a reformer from Cambridge, but you cannot do a lot with UBL. This makes it painfully obvious, I think, that the legacy legislation of the 1970's is just utterly inadequate and even downright dangerous in an era of religious nutcases busy working on mass terror weapons. Whether wars of national liberation should have scared us as much as they did or not, we have every reason to be scared of 21st century terrorism. Both the War Powers Act (to the extent anyone pays any attention to it) and FISA are relics of the 1970's, and ought to be as embarrassing to us as people hanging from the helicopters fleeing from Saigon. We've been there, and done that, and it did not work out too well last time, and we certainly do not want to repeat that with respect to the Islamist terror movement, or whatever you want to call them. I don't want Bush to have a blank check, but I do want him to have a line of credit that he can draw on to defend us against very real threats, threats which those on the left seem to want to minimize for tranparently political reasons. I realize there is reason to worry that any government will play on our fears, but it is not as if 9/11 was just a nightmare -- it was a nightmare come true. If I recall Arthur Schlesinger's book correctly, FDR exceeded his powers in the Lend-Lease program. I am not too worried about it.