Friday, February 03, 2006


Senator Roberts Declares FISA Unconstitutional:
Senator Pat Roberts of Kansas, Chairman of the Senate Intelligence Committee, today issued a 19-page letter to the Senate Judiciary Committee in which he became (as far as I know) the first member of Congress to opine that the NSA's doemstic wiretapping program is lawful. Senator Roberts's argument is, almost in its entirety, that to the extent FISA purports to provide the "exclusive means" for the President to engage in electronic surveillance -- and Senator Roberts agrees that FISA does so (pp. 10-11) -- FISA is unconstitutional. …

His argument … is that the President's constitutional authorities "should be the beginning and end of our legislative inquiry into the 'legality' of this program. It is quite clear to me that Congress could not, through passage of FISA, extinguish the President’s constitutional authority to conduct the terrorist surveillance program at issue." Senator Roberts concludes (p.13) that the Supreme Court would, "even after FISA, determine that Congress cannot define the 'exclusive means' for the conduct" of the President's electronic surveillance within the United States.

It's a rather remarkable and unusual event when the Chair of a congressional intelligence committee asserts that the landmark framework statute over which his committee has jurisdiction is unconstitutional. But that is what we've seen today. (One wonders why Senator Roberts did not, over the past five years, respond to the several enacted and proposed amendments to FISA, including in the PATRIOT Act, by saying they were unnecessary because FISA cannot limit the President's foreign-terrorism-related electronic surveillance.)
That quoted passage is incoherent. First he says that Congress can't block a power granted to the President. Fine. FISA does not "extinguish" the power to engage in surveillance, it regulates it. Is the Uniform Code of Military Justice unconstitutional?

The President has the power to enforce the laws. Can Congress regulate the FBI? Of course.

Could Congress forbid the President from undertaking surveillance of hostile foreign powers? Absolutely not. But it didn't, so the "extinguish" language is bullshit. If the law was written in a way that did not permit this particular program to be implemented, the president should have insisted that the law be amended. The fact that a law is inconvenient does not make it unconstitutional. Congress permitted the president to engage in surveillance, but placed reasonable checks and balances on the process of undertaking such surveillance.

Congress and the President have an interplay. Each gets a say. Congress, through FISA, established oversight because of the litany of abuses Roberts recites. When the President had an unregulated power to tap phones, he abused it. To prevent abuses, Congress established the "exclusive means" for obtaining such surveillance in order to prevent abuses.

Lederman is right that it's remarkable that Senator Roberts has not, in his time as the chairman of the Intelligence Committee, attempted to repair what he claims is a constitutional flaw in a piece of legislation he's responsible for overseeing.

Roberts first claims that the program is highly targeted, but then holds that targets of the surveillance would not fall under the rubric of "foreign powers" or "agents of foreign powers."

Bear in mind that an "agent of a foreign power" is someone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power" or someone who "knowingly aids or abets any person in the conduct of [such] activities." And a "foreign power" includes "a group engaged in international terrorism or activities in preparation therefor."

So, Senator Roberts is telling us that the targeting of this program nonetheless cast a net so wide that it caught people who were not engaged in terrorism, nor aiding and abetting people engaged in terrorism. Because if the program were targeted that tightly, it would be false to claim that FISA's "foreign power" restrictions were a reason why the Attorney General's "emergency power" surveillance was inadequate.

Roberts insists that the program complies with 4th amendment reasonableness, but objects to applying 4th amendment "probable cause." Who determines that the surveillance is limited to "reasonable" targets? What are the checks? The balances? Where are the warrants, an essential part of the 4th amendment?

Contact Senator Roberts and tell him you are disappointed, and that you cannot feel confident in his ability to oversee intelligence activities, nor do you believe our Constitutional system requires us to trust the President's assessment of what is reasonable, and that history indicates that such scepticism itself is entirely reasonable.