July 5, 2008 | National Review Online

Getting FISA Wrong . . . Again

A federal court in California has dismissed a civil lawsuit that alleged surveillance violations against a Muslim charity the government has formally designated as supporter of al-Qaeda and other terrorist organizations.

Nevertheless, in his ill-conceived 56-page opinion, Chief Judge Vaughn R. Walker, of the district court in San Francisco, gets to the right result only after concluding that Congress has the power to preempt the president’s constitutional authority. Judge Walker found that the 1978 FISA statute (the Foreign Intelligence Surveillance Act) did precisely that, and therefore that the Bush administration’s Terrorist Surveillance Program, under which the National Security Agency eavesdropped on suspected terrorist communications crossing U.S. borders without seeking FISA-court authorization, was illegal.

The case involves the Oregon branch of the Saudi-based al-Haramain Islamic Foundation. AHF is among the largest of the Islamic world’s ostensibly “charitable” organizations. Hence, is it one of the great spigots of jihadist funding. Our government and the relevant United Nations committee have long cited many of its branches and central players as terror facilitators. Only two weeks ago, the Treasury Department took the further step of designating “the entirety of the AHF organization, including its headquarters in Saudi Arabia,” due to its provision of “financial and logistical support to the al Qaida network and other terrorist organizations[.]”

The grist for the California suit is a Treasury Department screw-up. The Oregon AHF branch was designated in September 2004. It took legal action to complain. Treasury’s Office of Foreign Assets Control (OFAC), hub of the government’s effort to stanch terror funding, was thus obliged to provide discovery of relevant, non-classified documents. OFAC inadvertently included a top-secret call-log, showing AHF had been subjected to national-security surveillance. The log reportedly documented government monitoring, without FISA court authorization, of calls between the Oregon branch and top AHF officials in Saudi Arabia. NSA alerted OFAC which promptly designated AHF-Oregon — based, the foundation contends, on this “illegal spying.”

The government invoked its “state secrets” privilege, demanding both the return of the highly classified call-log and its suppression for all purposes in the litigation. Before the case was reassigned to Chief Judge Walker, a federal judge in Oregon attempted to rule that the government could not unring that bell. But the Ninth Circuit Court of Appeals, generally no great friend of the Bush administration, determined that “the basis for the privilege is exceptionally well documented,” and that the call-log’s further disclosure and use in the case “would undermine the government’s intelligence capabilities and compromise national security,” given the implications of such an exposition for “the means, sources and methods of intelligence gathering[.]”

That should have been the end of the case. Let’s put aside the glaring lawfare aspect of this litigation: the fact that these hoops are being gone through for the benefit of a now-defunct abettor of the very terrorists we are fighting in a war authorized by a sweeping congressional authorization. Even an ordinary American litigant cannot sustain an action unless he can prove both that a cognizable legal wrong has been done specifically to him, and that he suffered quantifiable damages.

With the state-secrets privilege invoked in good faith, AHF could establish neither. That privilege, repeatedly reaffirmed by the Supreme Court, exists because, in the inevitable clash of values, we elevate the protection of the state over the redress of individual grievances — recognizing that absent government’s capacity to safeguard the nation, all citizens are aggrieved and endangered.

In modern America, however, a cat has fewer lives than a frivolous lawsuit. Thus, this one continued with the plaintiffs contending that the state secrets privilege is a creature of judge-made common law. Federal common law can be displaced by statute. Consequently, AHF contends the states secret privilege was preempted when Congress enacted FISA, which purports to regulate all national-security surveillance and allows lawsuits by those subjected to surveillance outside its terms.

The court was thus confronted with the question that has animated scholarly debate since the New York Times exposed the NSA program in 2005: Does FISA, a mere statute, eviscerate the commander-in-chief’s authority under Article II of the Constitution to conduct surveillance he believes is necessary to protect the American people against foreign threats to national security — particularly in wartime?

Bottom line: Chief Judge Walker concluded that FISA did preempt the state-secrets privilege — though, bound by the Ninth Circuit’s exclusion of the top-secret document, he dismissed the suit anyway. (Though it seems futile, he gave AHF leave to craft a new case using only public information.) The state secrets question is an interesting one all to itself. It is, however, merely a proxy for the underlying separation-of-powers clash. In effect, Walker held that Congress could and did remove the president’s power to conduct surveillance, that FISA eviscerated Article II of the Constitution.

His treatment of that issue was wayward, to say the least.

Judge Walker elaborately traced the history leading to FISA’s enactment, including the 1976 Church Committee findings about domestic spying abuses and sober statements by various lawmakers about the perceived need to hyper-regulate electronic eavesdropping. That wrong was done, particularly in the Watergate era, cannot be gainsaid. But that does not mean the available remedies included a statutory slicing of executive power to guard against the possibility of future abuse.

It was not Congress but the Constitution that vested the president with surveillance authority. Certainly, the president could be impeached for abusing it (as Nixon would have been had he fought on). But the power is a component of the office forged by Article II, not a creation of statute.

To take a different example, it is not infrequent for the Supreme Court to hold acts of Congress unconstitutional — to say, in effect, that the legislature has acted lawlessly. Back in 1995, for example, the Court invalidated a gun law because, the justices said, it exceeded Congress’s authority under the Commerce Clause. As a thought experiment, let’s imagine the Court had ended its opinion with the following:

Because this abuse of power was flagrant, the Court fears it could recur. Therefore, we hold that Congress may no longer enact regulations of interstate and foreign commerce. Instead, that authority is delegated to the president, who should seek Congress’s advice in its execution. After all, the president is already responsible for enforcing federal law throughout the several states and for conducting the nation’s foreign affairs.

Such a ruling would have been met by outrage, and Congress would properly have ignored it. Congress’s commerce power comes from the Constitution, not the Court. The fact that our system is based on “checks and balances” — the vapid phrase is a verbal-tick for FISA enthusiasts — does not give one branch the authority to re-jigger the responsibilities of the other two. Moreover, the fact that the president and Congress have overlapping areas of authority does not entitle the president to exercise powers the Constitution vests in the legislature in those areas.

Yet, these improprieties are exactly what Congress tried to accomplish in FISA. Fearing future abuse of a necessary executive power, it purported to strip the president of that power. It delegated the power to the newly created FISA court, which was to decide — based on the executive’s advice — which domestic collections of foreign intelligence were permissible. And it sought to justify the power grab by (a) blathering about “checks and balances” (though, as Watergate showed, its powers of impeachment and the purse already gave Congress all the checks and balances it needed to combat executive abuse), and (b) pointing out that the Constitution gives it authority that overlaps with the president’s in the areas of domestic eavesdropping and rule-making for executive agencies — overlapping authority which Congress construes as the power to eviscerate presidential power in those areas.

Ecclesiastes reminds us that there is nothing new under the sun. We should not be surprised that the Framers, serious students of history, warned us over 200 years ago that this would happen. The Constitution, Hamilton explained in Federalist No. 73, is designed to defend against “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” It does so by giving each branch powers that Congress cannot infringe, gobble or delegate.

That doesn’t mean Congress won’t try — as the Framers knew, the lawmaker’s appetite is insatiable. That is why statutes are often invalidated by courts and ignored by presidents. Judge Walker lamely observes that FISA hardly stands alone: Congress has enacted many statutes that regulate classified information. He might also have noted many other curbs and legislative vetoes by which Congress presumes to restrict war powers, enforcement authority, budget execution, and a host of other executive responsibilities. The fact that these laws are passed is not the point. Their presence on the books hardly means all their provisions are proper.

The fact that presidents try to work within the confines of dubious laws rather than provoking needless constitutional crises by challenging them is to be expected. Courts, too, indulge a presumption that Congress’s enactments, now matter how facially questionable, are constitutional. Occasionally, however, push comes to shove. A presumptively valid law may be on the books for many years only to find itself struck down when a controversy arises and its validity is finally tested.

That happens in the law when a person aggrieved by congressional excess finally complains, and then a court must decide. It happens in national security when, despite a quarter-century of compliantly working within FISA, a 9/11 happens and the chief executive finds FISA’s arduous provisions materially interfering with his first duty to protect the nation from foreign attack.

It is on this score that Chief Judge Walker’s opinion is weakest. He is very long on demonstrating the obvious, undeniable and unremarkable: In FISA, Congress intended to remove all residual presidential authority to conduct electronic surveillance outside statutory restrictions. The judge is woefully short, though, on the only issue that really matters: whether, regardless of their intentions, our lawmakers had the power to do that.

One must always marvel at how selective the affection of FISA’s admirers is. They love the statute’s hamstringing of the executive. They love the FISA court. But the higher court created by the same statute? Not so much.

The Supreme Court had explained in 1948 that courts had no institutional competence in matters of intelligence collection. It suggested in 1972 — in a case about domestic-security threats, not foreign ones as to which executive supremacy was unquestioned — that the incompetence problem might be addressed by a special court that would become expert by repeatedly handling applications for surveillance. So when FISA was enacted in 1978, Congress took these lessons to heart and created two special courts: the FISA court to rule on executive applications for surveillance, and the FISA court of review, a superior, appellate tribunal. These were to become the repository of judicial expertise on intelligence matters and the operation of FISA.

After 24 years’ experience under FISA, the three-judge FISA court of review issued a unanimous, comprehensive ruling in 2002 (rejecting the FISA court’s lawless attempt to rebuild the infamous “wall” between intelligence and law enforcement that had proved so disastrous prior to 9/11). In that ruling, called In re Sealed Case, it said the following:

The [Fourth Circuit Court of Appeals in United States v. Truong Dinh Hung], 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…. 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. [Emphasis added.]

That is the teaching of the most specialized tribunal created by Congress precisely to be the expert judicial authority in matters of intelligence collection. It has said, unambiguously, what black-letter law has long made manifest: a statute cannot trump the Constitution. The president has authority to conduct surveillance against foreign national security threats without seeking judicial permission. No matter how clear FISA is, and no matter how regularly presidents respectfully work within its terms, FISA cannot take that authority away.

So what does Chief Judge Walker — an ordinary judge who does not sit on the specialized courts Congress created because ordinary judges are not expert in intelligence matters — say about In re Sealed Case?

Nothing. Doesn’t mention it. Doesn’t address it.

Judge Walker, instead, effects bafflement that the Justice Department won’t just throw up its hands and concede the point. “It is not entirely clear whether defendants [i.e., the government] acknowledge Congress’s authority to enact FISA as the exclusive means by which the executive branch may undertake foreign intelligence surveillance in the domestic context.” According to the Court, the government regards this as “an open question.”

If that was the government’s position — or, to refine it, if the Justice Department thought it could avoid the uncomfortable controversy over FISA’s constitutionality by narrowly claiming the case could be won on state secrets grounds — that was a profound error. That approach de-emphasized the precedents that fly in the face of Judge Walker’s assumptions. It opened the field for him to assert, baldly, that our lawmakers have eliminated the president’s power because … well, because they intended to. They “intended to … establish the exclusive means for foreign intelligence activities to be conducted,” so — Presto! — they must have done it. No need to grapple with a higher court that says they can’t do it. Next case.

However inadvertently, Chief Judge Walker highlights his folly by pointing to what Congress pronounced when it passed the original federal wiretapping law in 1968:

Nothing in this chapter * * * shall limit the constitutional power of the President to take such measures as he deems necessary to protect the nation against actual or potential attack * * * or to protect national security against foreign intelligence activities.

Walker observes that when Congress enacted FISA ten years later, it repealed this provision. Congress, of course, can repeal any statute it has ever passed. But it cannot, under any circumstances, repeal “the constitutional power of the President” — not even by the facile ploy of repealing a statute that mentions it. As Congress correctly understood in 1968, and as the courts consistently acknowledged, the president’s surveillance authority against foreign threats to national security is a “constitutional power.” The president had the power because of the Constitution. He did not have it because Congress conceded it in 1968, and he did not lose it because Congress presumed to strip it in 1978.

Bad decisions often embed themselves into our law because the party they harm wins the case anyway and has no incentive to appeal. The government has won this case: The complaint has been dismissed, and it appears certain AHF will not be able to reconstruct it. But Judge Walker’s reasoning, already being celebrated by the New York Times, imperils separation-of-powers. That should concern anyone who is actually worried about checks and balances. AHF will surely appeal. The government should, too.