The revelation that the executive branch has engaged in electronic surveillance of U. S. citizens without judicial approval to gain foreign intelligence information has caused a firestorm of controversy. And it is good that it has.
Although the right to privacy is nowhere enshrined in the Constitution, it motivates many of its provisions. The potential clash between the government’s ability to collect information and its mandate to honor privacy is a critically important issue that deserves robust public debate.
More Top Picks How To Cool A Garage
The initial debate has collapsed into competing assertions that President Bush has inherent authority to act independently in foreign affairs, and thus even to wiretap U.S. citizens without legal constraint–and, on the other hand, that the 4th Amendment demands warrants issued on probable cause before the government surveils.
But this dispute is considerably more complex than either of these simplistic approaches.
It is true that the president has inherent authority to act to stave off an imminent threat to the security of the country. But it is an abuse of language to suggest that’s what the president has been doing for the last four years. It is obvious that he is obtaining strategic information about the country’s adversaries. Nonetheless, some assert that he has inherent authority in foreign affairs to do so, even if the threat is not imminent–and if so, how can Congress intervene?
The answer is because Congress and the president often exercise concurrent authority. Examples are everywhere. The president embodies the executive authority, but no one doubts that it is Congress that creates departments of government. The president is the commander in chief, but Congress regulates the structure of the armed forces. Even if the president has inherent authority to surveil in matters involving foreign affairs, that says almost nothing about congressional power to regulate it.
On the other side of the debate, why isn’t the 4th Amendment’s requirement of probable cause and warrants the end of the matter? Because it has been decades since the Supreme Court has consistently embraced the idea that what makes a search reasonable is a probable-cause warrant. For over a quarter century, the court has consistently carved out exceptions to that view.
The competing simple solutions to the controversy both fail. The resolution is likely to be more compromised than an either-or approach suggests.
At least four variables inform the executive’s power to search, and Congress’ corresponding ability to control the executive branch. They are: 1) who is being searched, a citizen or a non-citizen; 2) where the activity is occurring, within the U.S. or not; 3) what means are employed, highly secretive and intrusive (wiretapping) or open and constrained (physical searches of specific locations); and 4) whether the purpose of a search is for specific evidence of crime or strategic knowledge about foreign powers.
When all of the first of these dichotomies are true, constitutional constraints on the power of the executive, and congressional power to regulate executive authority, are at their strongest. The Constitution constrains the search of U.S. citizens here through highly intrusive means to get evidence of criminality, and there is little doubt about congressional power to regulate things (like the wiretapping act, for example). When all of the second of these dichotomies are true, the president can likely do what he likes, as in surveillance of a foreign national abroad for national security information.
When one begins to mix and match these variables, the legal question becomes murkier, which is the present situation. The president purports to be searching for information relevant to foreign affairs, but he apparently has authorized highly intrusive searches of citizens in the U.S. He may very well have the inherent authority to do this if Congress does not act, but I am fairly confident that the Supreme Court also would conclude that Congress does indeed have the power to regulate the president in cases like this.
And Congress should make it clear that that is exactly what it intended to do through the adoption of the Foreign Intelligence Surveillance Act, or FISA. This law permits emergency action followed by subsequent notification to the FISA court, and to my knowledge there has not been a single claim that information given to the FISA court has ever leaked or damaged national security.
Moreover, it is obvious that the government is engaged in an ongoing effort to get information and is not acting to stop imminent threats of harm. I applaud these efforts but prefer that the executive branch not exercise its authority answerable only to its own good judgment. That path does indeed lead to tyranny.
Most of all, I applaud the debate that will now occur in the country. Maybe I am wrong in my judgment that subjecting the president’s actions to the minimal constraints of FISA wouldn’t imperil our national security. If it would, the Bush administration should make that case, and the nation should evaluate it. If we need further actions, to rein in the president or to affirm that he does have this power, Congress or the courts can respond.