NSA: Keeping One’s Eye on the Constitutional Ball

Followers of Cato’s Constitutional Studies department know that my colleague Bob Levy and I have a respectful disagreement over the constitutionality of recently revealed NSA surveillance practices. Consider this the latest installment in that discussion….

In an earlier Cato@Liberty post, Bob finds it “ominous” that the NSA might be “monitoring the content of wholly domestic calls.” But he adds, “When communications from and to a US person in the US are monitored, that’s domestic surveillance, no matter whether the party on the other end is inside or outside of the US (original emphasis).”

I have to disagree. Perhaps Bob thinks that the monitoring of international calls, as we would normally call them (one party outside the United States), is also ominous, because he next says, “Since Bush believes that warrantless domestic surveillance is permissible regardless of FISA’s contrary provisions, we shouldn’t be surprised if the NSA has much more data (including content) than USA Today has uncovered.”

This focus on domestic/nondomestic, pressed by the Bush critics, comes from the language of FISA—and points to yet another problem with the statute. After all, the calls we want most to monitor are those that go to and come from al-Qaeda sleeper-cells in the United States. Insofar as FISA burdens that “domestic” surveillance, it frustrates the very purpose of surveillance.
In Nov. 2002, the FISA Court of Review cut through that distinction when it spoke of the president’s “inherent authority to conduct warrantless searches [leaving it open whether inside or outside the United States] to obtain foreign intelligence information,” adding that the “appropriate distinction” to be drawn in balancing the government’s interest against individual privacy interests is between “ordinary crimes and foreign intelligence crimes.” Unlike with the former, where punishment and deterrence are the main purposes, the government’s concern with foreign intelligence crimes, the court said, “is overwhelmingly to stop or frustrate the immediate criminal activity.” It can hardly do that effectively if it has to run to court for a warrant at every turn—nor did the court hold that it had to since that issue was not before the court.
The deeper issue with FISA, however, is the constitutional separation-of-powers question: whether Congress has the authority to restrict an inherent power of the president. How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government that has been exercised, with no objection, by every president since George Washington? Congress, by mere statute, can no more restrict the inherent power of a president—or a court, or a state, for that matter—than it can restrict the constitutional rights of an individual. If a line is to be drawn between the power of the president and the rights of the people, it is for the courts to do it. And if the courts will not or cannot do so (because of standing or other such problems), then the matter is ultimately political, not legal.