JURIST Special Guest Columnist Wendy J. Keefer, former senior counsel and chief of staff in the US Department of Justice Office of Legal Policy now teaching national security law at Charleston School of Law and practising with Haynsworth Sinkler Boyd, says that lawmakers, critics and the public at large should consider warrantless electronic surveillance and FISA in context, and welcome the Administration’s development of a voluntary method for terrorist monitoring that works in concert with congressionally established parameters…

Attorney General Alberto Gonzales recently informed Congress that President Bush would not reauthorize the Terrorist Surveillance Program (“TSP”) conducted by the National Security Agency. Critics of the TSP, rather than embracing the Administration’s plan to proceed under an order or orders of the Foreign Intelligence Surveillance Court, continue to criticize the Administration and to characterize this change in policy as an admission of wrongdoing in the face of the new Democratic takeover of Congress. Instead of insisting the Administration is unscrupulous or unlawful, lawmakers, critics and the public at large should consider these events in historical context and welcome the Administration’s development of a voluntary method for working in concert with congressionally established parameters.

Prior to enactment of the Foreign Intelligence Surveillance Act (“FISA”) in 1978, it seemed unquestioned that at least in certain circumstances involving the protection of national security, the President could engage in warrantless electronic surveillance. From President Roosevelt to President Truman and beyond, United States Presidents authorized and engaged in electronic surveillance to obtain foreign intelligence information. Indeed, only in a case involving domestic surveillance for domestic security purposes, the Keith case, did the Court suggest that Congress might create a separate warrant and judicial system for sensitive domestic matters.

Instead of directly heeding that advice, Congress opted to create a separate system, not for domestic surveillance related to domestic issues, but for foreign intelligence gathering — a topic previously left to the discretion of the Executive. That system, established in 1978 by FISA, purported to be the exclusive means for undertaking electronic surveillance for foreign intelligence purposes. Merely asserting exclusivity, however, cannot alter constitutionally permissible activities of the Executive Branch. President Carter’s October 25th FISA signing statement recognized that this legislation for the first time required prior judicial approval for electronic surveillance. If no warrant was required prior to FISA, it must be that the new FISA warrant and surveillance approval structure was not a constitutional mandate but merely a statutory requirement.

Much of the debate about the TSP focused on this issue: whether the President had inherent or constitutional authority to engage in warrantless surveillance activities such that Congress could not, via a statute such as FISA, eliminate that authority. Regardless what conclusion one reaches on this issue, it can hardly be debated that the President, as Commander in Chief, may undertake surveillance of the enemy and suspected spies on the military battlefield. Interception of enemy communications was crucial to our nation’s success in past wars. It is no less important in the ongoing war on terror. What creates constitutional dilemmas in this new battle is the prevalence of potential enemies within our own borders.

The new focus on gathering foreign intelligence within our borders led to several court challenges to the TSP. Court cases were filed not only against the government but also against telecommunications providers who cooperated with the government in its operation of the TSP. These cases no doubt distracted the government from its primary mission — stopping terrorists from again perpetrating atrocities on the United States and her people. It is unfortunate that terrorists hide within our borders to plot against us — taking advantage of the freedoms and protections offered by our constitutional structure. The government — both the Executive and Legislative Branches — is left to determine how to confront these enemies.

Confronting both external and the new internal threats of terrorism presents new issues for our government and it must be expected that novel policies will be implemented, changed, and when necessary discarded to ensure the country’s efforts to prevent future attacks are effective. To be truly effective this prevention must both stop while protecting our liberty and freedom. That the Administration has found a way to work within a congressionally created system — the Foreign Intelligence Surveillance Court and the dictates of FISA — whether constitutionally required or not, should be viewed as an example of the best of government policy development, not the worst.

Wendy J. Keefer is an attorney with the firm of Haynsworth Sinkler Boyd, P.A. and an adjunct professor teaching National Security Law at the Charleston School of Law. She previously served as Chief of Staff to the Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice.
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