Strike this down


ACRU Staff


October 23, 2007

In the wake of President Bush’s veto of the State Children’s Health Insurance Program (SCHIP), Congress is preparing for another showdown with the White House. But this time the dispute won’t be over health care spending for children, instead the dispute has consequences for all Americans because it is over which branch of government is best suited to know which ground rules are needed for fighting the war on terror.

The specific conflict is over proposed amendments to the Foreign Intelligence Surveillance Act (FISA) but the broader issue is the distinct differences between the Congress and the President when it comes to national security. Undoubtedly Article I of the Constitution provides a robust role for Congress in these matters: Congress has the authority “to declare War, grant letters of Marque and Reprisal, and make rules concerning Captures on Land and Water.” Furthermore Congress is given explicit power to fund and organize the military, legislate international rules of commerce and punish piracy. But crucially, its authority is dispersed among the two chambers and its powers are best read as setting policy on broad terms.

On the other hand, Article II of the Constitution reveals the primacy of executive authority when it comes to the day to day handling of national security threats. Article II vests in the presidency the commander in chief power as well as foreign relations authority, executive order authority and related emergency powers. This combination makes the presidency ideally suited to assess and carry out our nation’s national security needs.

The tension between policy setting and day to day implementation is reflected in the dispute over amendments to the FISA act of 1978. After nearly 20 years, Congress this summer passed amendments that modernized the act by expressly granting the president broad authority to use today’s cutting-edge technology to engage in international surveillance. But now some in Congress want to roll back that authority.

That would be a dangerous mistake. The new rules work and provide the right balance between civil liberties and national security. Presently, the president is authorized to surveil foreigners without going to the Foreign Intelligence Surveillance Court (FISC) for permission. Additionally, to protect Americans, the law requires the DOJ to develop and submit to the FISA court a set of procedures the president will use in making determinations of who is a foreigner.

Furthermore, the law authorizes the director of national Intelligence and the attorney general to require private companies to assist in surveillance of foreign intelligence targets. And finally, the amendments provide those firms a broad grant of immunity from lawsuits as a result of their assistance.

Unfortunately these changes were temporary, as the act expires in February 2008. Worse yet, however is a “replacement” measure being pushed by Rep. John Conyers — the inaptly named “Restore Act of 2007.”

This bill, which is rapidly making its way through Congress, represents an aggressive and unhelpful assertion of congressional authority. It will cripple our nation’s ability to engage in international electronic intelligence gathering and is a powerful argument for why the framers believed the executive must take the lead in matters of national security.

Instead of maintaining the distinction between foreign and domestic intelligence, the so-called Restore Act would force both foreign and domestic surveillance to be reviewed by the Foreign Intelligence Surveillance Court. Not only would this process needlessly delay and in many instances eliminate altogether the gathering of vital intelligence, it rests on dubious constitutional grounds as it encroaches on the president’s independent authority to engage in international surveillance of foreigners without coordination with Congress or courts. Perhaps most egregiously, this measure would for the first time cover the American military thereby disrupting their access to actionable intelligence even when needed in a battlefield setting.

And in the name of protecting civil liberties the bill actually threatens them by requiring the creation of a database compiled by the intelligence community. It would consist of dossiers of U.S. citizens that have been tracked by electronic surveillance — information that would normally not be kept. The bill provides that these dossiers would be annually transferred to members of Congress potentially allowing them to be abused for partisan/political purposes by less scrupulous members of Congress or their staff.

Moreover, rather than devote additional resources to alleviate the lack of trained linguists and analysts to track current threats, the bill authorizes additional manpower and resources instead to meet unwarranted Congressional audit and reporting demands.

Finally, in a nearly unbelievable break with basic tenets of fair play, the bill repeals the immunity from civil liability provided to any firms and individuals that assist the federal government with surveillance gathering. Remarkably, the bill’s backers seem to believe that the very companies and individuals that have voluntarily assisted our intelligence gathering efforts in the wake of the worst attack on U.S. soil in modern times should face a torrent of lawsuits as a consequence.

By crippling the gathering of actionable intelligence even in battlefield settings and saddling intelligence professionals with audit and report creation duties in the midst of a analyst resource shortage this bill makes fundamentally clear why the framers invested the executive with the key responsibility for protecting out national security. The Restore Act’s insistence on congressional pre-eminence in national security matters authority is a historical and unless amended dramatically constitutes a clear and present danger.

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