Horace Cooper: President Has Power To Let FISA Continue


ACRU Staff


February 1, 2008

This op-ed originally appeared in the Investor’s Business Daily on February 1, 2008

Rather than pass a permanent renewal of America’s foreign intelligence surveillance capability, Congress continues to debate the need for the Protect America Act.

After waiting six months, they’ve now passed a 15-day extension of the act giving them more time to bicker over the issue. If they fail to act, it is essential that President Bush use his inherent executive power to continue the electronic surveillance program.

Similar to the executive order issued months after the Sept. 11 attacks, he should simply issue an order to allow this anti-terror program to continue.

The Protect America Act became law last summer. This bill made several needed changes to the Foreign Intelligence Surveillance Act of 1978.

FISA originally was passed during the Carter administration and was designed to require federal court oversight of government monitoring of people within the United States. Over time, the law was construed to require the court’s involvement even in cases in which people were surveilled electronically outside the U.S.

Protect America moved FISA into the digital era by allowing our country’s intelligence professionals to monitor targets in foreign countries without interference by the courts.

It also authorized the feds to seek the assistance of American telecommunication firms in intelligence gathering of foreign nationals. And it immunized from lawsuits those patriotic firms that voluntarily offered assistance to the U.S. after the 9/11 attacks.

These changes made FISA workable — a vital component of our defense while our nation is on a war footing. Unfortunately, the act was given a life span of only 180 days, which ended Friday.

This remarkably feckless failure on the part of the Democrat-led Congress provides a key insight into how they’ve managed to keep the institution’s approval in the basement for nearly a year. But their shortcomings should not impede the president from using his constitutional authority to fill the gap they’ve left by executive order.

The ACLU seriously misreads the Constitution when it claims that securing our national security by using electronic surveillance violates civil liberties, or worse, is illegal. The president can carry out electronic surveillance of foreign terrorists consistent with the U.S. Constitution.

Certainly the Congress has broad authority in the national security arena — declaring war, funding and organizing the military, legislating international commerce, etc. But its authority isn’t exclusive.

The Constitution vests in the presidency arguably greater authority for handling America’s security. Article II of the Constitution expressly provides that the president has commander-in-chief power and all executive power of the federal government.

In fact, it is the genius of our Constitution that makes the U.S. president the single most powerful executive of any democratic government.

By its nature and design, the executive power is agile and responsive. By its nature and design, the congressional power is deliberative and rigid. Both logic and history dictate that the executive’s primacy in national security matters be recognized.

Congress has used its formal war-making power only five times, yet presidents have ordered military forces into combat zones more than 100 times. As the 20th century closed and the 21st began, the pace of executive-directed military actions have increased.

Why? Because we now have a greater ability to recognize national security threats and today’s threats are greater than they ever have been.

As the framers intended, the combination of foreign relations powers, commander-in-chief powers, emergency powers and executive order authority make the president ideally suited to effectuate America’s national security interests. And counterterrorism to protect our national security is the quintessential executive responsibility.

To argue in the face of this reality that the president must sit passively by while waiting on Congress is to suggest that we as a nation unilaterally disarm against a clear and present danger.

As Alexander Hamilton wisely noted: “The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.

“This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.”

That one person is the president of the United States.

Cooper is a senior fellow with the American Civil Rights Union, an Arlington, Va.-based think tank focusing on constitutional areas ignored, or even actively undermined, by other civil liberties groups.



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