Commentary

Untwist the Chain of Command

This article appeared on Law.com, February 28, 2006.
In his Feb. 6 Senate testimony on the president’s secret surveillance program, Attorney General Alberto Gonzales argued, repeatedly, that federal agents must sidestep special warrant procedures established by Congress, because they are incredibly time-consuming. But this excuse doesn’t stand up to scrutiny.

Gonzales was complaining about red tape created by the executive branch — a handicap of the president’s own making. That’s not a good basis for dodging judicial review of National Security Agency wiretapping.

Briefly, the Foreign Intelligence Surveillance Act of 1978 allows the government to seek an emergency warrant within 72 hours after NSA eavesdropping begins. But Gonzales says that even with the extra time, the process is just too cumbersome. According to the attorney general, the following steps must be taken before the Justice Department can even approach the FISA court:

Intelligence officials at the NSA must determine that they have identified a legitimate target and request permission to begin more focused surveillance. NSA lawyers will review that request to ensure that it meets the requirements of FISA. Then Justice Department lawyers must reach the same judgment or ask for additional information. Next the Justice lawyers process the warrant application. The application goes to the attorney general, who reviews the request to determine that all the FISA requirements have been met. Then a Cabinet-level officer “as well as” another senior official with national security responsibility, such as the director of the Federal Bureau of Investigation, must also sign off on the application.

These steps “take time,” complains Gonzales. “Al Qaeda, however, does not wait.”

Has Congress really required all this silly bureaucratic hurdle-jumping before the president can take advantage of FISA? No, the president and his underlings have.

The FISA statute imposes only three relevant requirements: (1) that the attorney general approve a warrant application, (2) that an official confirmed by the Senate with foreign affairs responsibility certify the foreign intelligence value of the request, and (3) that the president or attorney general adopt “minimization” procedures to ensure that surveillance is not overbroad. (For example, information gathered in the course of the eavesdropping that is not related to national security should not be retained.)

The additional paper shuffle cited by Gonzales — all the concentric circles of legal review, followed by a chain of duplicative senior-level sign-offs — is the product of presidential orders and operating practices. Those extra layers of review may be unnecessary, even foolish. But they aren’t required by Congress.

They probably can’t be required by courts, either. To be sure, some judges have, at times, asserted otherwise. In 2002, President George W. Bush adopted new rules governing information sharing between intelligence agencies and the FBI, replacing earlier procedures then-Attorney General Janet Reno put in place in 1995. The presiding judge of the FISA court at the time, Royce Lamberth, joined by all the other judges tasked with approving FISA warrants, rejected the new rules. The FISA Court of Review disagreed. It suggested that federal judges may not have the power to make the rules for vetting warrant applications within the executive branch.

The Court of Review’s suggestion finds some support in the Constitution. Article II vests “executive power” in “a President” — that is, in the one and only chief executive. And while the Constitution suggests that powers vested in Congress should be read narrowly — by specifying that Congress can exercise only powers “herein” granted — Article II’s delegation of power to the president contains no such qualification, suggesting that the power of the president should be read more broadly.

Arguably, by placing the broad power of executive oversight in the president alone, the Constitution envisions that one publicly accountable officer will manage the chain of command and set levels of internal oversight within the executive branch. That may mean the president can deflect court interference with efforts to streamline the foreign affairs bureaucracy. It may also mean the president can ignore specific directions from Congress about who should report to whom — such as FISA’s requirement that a Senate-approved foreign affairs adviser, as opposed to an NSA case officer, certify foreign intelligence value.

And if that’s true, then when the president finds his own rules for vetting emergency surveillance applications to be “cumbersome and burdensome,” he can simply cut the red tape. So why hasn’t he?

One potential problem is a Supreme Court precedent, Morrison v. Olson, a 1988 case stemming from an independent counsel’s investigation of Theodore Olson, then an assistant attorney general in the Reagan Justice Department. The Reagan administration argued that the independent counsel statute was unconstitutional, in part because it limited the president’s power to fire the counsel (who was, after all, one of the president’s underlings) and in part because it gave judges a small role in overseeing the counsel’s activities (judges were required to approve the counsel’s appointment and to review an attorney general’s decision to terminate a counsel’s authority). The Supreme Court disagreed.

Morrison suggests that some management of inferior executive officers by courts or Congress doesn’t overstep constitutional limits. And that might indicate that the FISA court or Congress could exercise some oversight of the preparation of eavesdropping warrants.

But Morrison can be easily distinguished from the current surveillance controversy. The earlier case did not involve the president’s management of foreign affairs, an area in which presidents have long claimed greater independence. And it certainly didn’t mandate miring national security in a sea of carbon-copy triplicates.

The only other restraint on the president’s vetting of emergency surveillance applications is the dictate of good policy.

First, we want to prevent abusive or unnecessary surveillance. Second, we want the Justice Department, spy agencies, and Cabinet officials to share intelligence information. It can be argued that requiring multiple officials from multiple agencies to sign off on warrantless spying under FISA furthers those two goals.

Even so, the current unwieldy process isn’t the only possible solution. Within the NSA itself, there is no lengthy chain of bureaucratic pre-approvals every time an individual surveillance decision is made. Instead, according to Gonzales, the entire program is periodically reviewed by the attorney general and receives ongoing attention from the NSA inspector general. This oversight helps prevent abuse and ensures that spy information is shared with law enforcement. But, by skipping the multiple permission slips for each search, it also allows for more vigorous executive action. Given the nature of the threat — unpredictable, catastrophic terrorist attack — the NSA seems to have found an eminently reasonable balance among oversight, information sharing, and action.

Based on what Bush has confirmed about the NSA program, there’s no obvious reason why the president could not couple this system of flexible internal oversight with a more streamlined FISA warrant process. He could cull the duplicative layers of legal oversight at both the NSA and the Justice Department. He could eliminate multiple sign-offs by senior officials.

Instead, NSA case officers could initiate the warrant request. An intelligence oversight counsel assigned to specific ongoing investigations could process the warrant within the 72-hour time frame. Sign-offs from the attorney general might be given as a matter of course, with more searching program-level review at regular intervals.

And if such internal vetting procedures were rebuffed by the FISA court, an assertion of power to go it alone (but only so long as judges insisted on telling the president how to manage his underlings) would be a far more modest and reasonable assertion of presidential power than the power Bush does claim — that is, to act wholly outside a system of checks and balances as a law unto himself.

Claiming sole power to manage the internal procedures of the executive branch draws a clear line between the president’s responsibilities and those of the other branches. By asserting a vague, roving, undefined, “inherent” power to act alone, in secret, whenever he deems it necessary, the president blurs that line. This frees him to push blame for national security failures on Congress or courts at the time of his choosing.

That’s a great strategy for office politics. But it is the very antithesis of taking real responsibility for the war on terror.

Mark Moller is a senior fellow editor in chief of the Cato Supreme Court Review.