Let Politics Check NSA Surveillance

This article appeared in the Wall Street Journal, February 21, 2006.
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On NSA surveillance, Richard Epstein concludes unlike others who have written for the editorial page (“Executive Power on Steroids,” Feb. 13). No surprise there. The issues are complex, the Constitution imprecise. That said, his contention that “the president has exceeded his constitutional powers in disregarding FISA” (the Foreign Intelligence Surveillance Act) is hardly self‐​evident. But his claim that “the Constitution gives Congress the power to set policy; it gives to the president the right, and the duty, to execute it,” much less that “Congress gets to set the general rules governing military efforts,” is surely wrong. No court has ever read the president’s foreign affairs power so narrowly.

Prof. Epstein cites “precise provisions” of the Constitution, yet the provisions he cites are neither precise nor dispositive. In particular, Congress’s awesome power “to declare War,” rarely used, was never meant to “authorize” military action. And the power of Congress “to make rules for the government and regulation of the land and naval forces,” which Prof. Epstein finds “most critical for the spying dispute,” was meant to enable Congress to establish a system of military justice outside the ordinary courts, not “to set the general rules governing military efforts.”

But it’s the idea of “inherent” executive power, which he likens to “plenary power over military affairs,” that most concerns Prof. Epstein. Yet the FISA Court of Review, in an authoritative opinion on FISA post Patriot Act, spoke directly to that issue in a November 2002 decision known as In re: Sealed Case. Citing an earlier case called Truong that dealt with pre‐​FISA surveillance based on “the President’s constitutional responsibility to conduct the foreign affairs of the United States,” the court said: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” The Supreme Court let the decision stand.

Note that the president’s power is “inherent,” but not “plenary.” Its exercise must be “reasonable” under the Fourth Amendment, which Congress can weigh in on, but not to the point of encroaching on the president’s inherent power — say, by prohibiting “the use of live ammunition in combat,” which Prof. Epstein would allow. Note, too, the absence of bright lines.

Congress’s micromanagement of the executive, which FISA amounts to, leads only to judicial hermeneutics concerning what Congress “really” meant. Sealed Case makes that plain. It shows also how earlier courts doing the same led to the erroneous erection of a “wall” between counterintelligence and law enforcement, and that may have led, tragically, to September 11. When the Framers gave the unqualified “executive Power” to the president, they did not leave it unchecked. But not every check must be by law. On this matter, politics is the better check.