FISA, Sunday talk, and an interesting omission

Geoffrey Corn [South Texas College of Law]: "The domestic surveillance debate took center stage on Meet the Press (Sunday, February 12th), as Senator Pat Roberts, former Senator Tom Daschle, and Representatives Peter Hoekstra and Jane Harman participated in a debate on the legality of this program (see here). Senator Roberts, a strong proponent of the program, reiterated the President's position that the FISA did not apply to the program because the objective is the neutralization of a threat "in time of war". Of course, Daschle and Harman challenged this assertion, with Harman citing Youngstown for the proposition that the President is operating in "the lowest ebb" of his power.

What seems almost inexplicable is that neither Daschle or Harman, the two voices of opposition in the discussion, noted what seems to be the section of FISA dispositive to this debate - the section that addresses wartime authority. According to Section 1811:

"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."

This section of FISA clearly indicates that Congress contemplated the need for extraordinary surveillance authority during time of war. It also clearly indicates that Congress rejected any blanket exception to the FISA warrant requirement during time of war, and instead provided for a limited presidential authority. It seems implausible that Congress would have provided for a limited exception in response to a declared war - the most significant manifestation of "time of war" by our Nation - and yet contemplated an unlimited exception to the warrant requirement during conflicts authorized by less than a declaration of war - the position asserted by the President and his supporters.

This section of FISA also seems to suggest that it is not only Youngstown, but also Dames & Moore v. Regan that provides the controlling precedent to analyze the President's assertion of authority. Pursuant to that precedent, it is virtually impossible to conclude that Congress, by "legislating around" the issue of FISA applicability in time of war, has invited an assertion of independent Executive authority. Instead, this section clearly indicates that Congress has "occupied the field", and thereby limited the authority of the President to ignore the FISA warrant requirements, even in response to a wartime threat.

Of course, as Senator Roberts noted, it is possible that requiring compliance with FISA in time of war to collect information on enemy operations is an unconstitutional encroachment on Executive power. But this is a very different theory than the oft asserted suggestion that the Authorization for the Use of military Force provided a blanket exception FISA's requirements. By addressing applicability during periods of declared war, Congress seems to have occupied the time of war field, leaving the President to either comply with FISA, or assert that the statute impermissibly intrudes on his vested authority and stand alone in Justice Jackson's lowest tier of constitutional power."

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