The New Republic

This article is adapted from Jeffrey Rosen's new book, The Most
Democratic Branch: How the Courts Serve America (Oxford University
Press).

On May 11, USA Today revealed that the National Security Agency
(NSA) has been secretly collecting the phone records of tens of
millions of Americans in the hope of detecting terrorists. In
response to the story, civil libertarians are once again rushing to
court. There is a strong argument that the NSA violated the Stored
Communications Act, a law that Congress passed specifically to
prohibit this kind of surveillance, and courts may indeed strike the
program down. Civil libertarians have also filed lawsuits
challenging another NSA surveillance program, which, according to
The New York Times, allows the administration to intercept phone
conversations and e-mails in which one party is a suspected
international terrorist. Judges may eventually strike down that
program, too, since it appears to violate the Foreign Intelligence
Surveillance Act (fisa).While lawyers file their briefs, politicians on Capitol Hill have
theatrically expressed shock and outrage. During the confirmation
hearings for Michael Hayden, the former NSA chief who has been
nominated to run the CIA, Republicans and Democrats criticized
Hayden for his unapologetic defense of the NSA surveillance
programs. But, despite the displays of bipartisan pique, many
Republicans and Democrats in Congress seem content to let courts
take the lead in striking down Bush's domestic spying programs,
rather than demanding a full- blown congressional investigation
followed by new laws that would give the president whatever
emergency powers he needs, but only with scrupulous congressional
oversight.

At the height of the most serious surveillance scandal since the
Nixon era, Congress's decision to abdicate its oversight powers to
the courts is a serious mistake. The courts have a checkered
history when it comes to protecting civil liberties from abuses of
executive power. The truth is that most of the great advances for
civil liberties in the postwar era came from Congress and the
courts working as partners, rather than from the courts alone. So,
if Congress is serious about saving the country from illegal
surveillance, it ought to do more than just wait for judges to
rule. It ought to mobilize public opinion and act.

From the Founding era until the present, the Supreme Court has
tended to mirror deeply felt currents in public opinion, and cases
involving civil liberties in wartime are no exception. During
periods when Congress supported the rights of dissenters who were
being menaced by the executive, the courts tended to uphold these
rights as well; when both the president and Congress were committed
to repressing unpopular speech, the courts tended to retreat. The
Supreme Court upheld the convictions of dissenters during World War
I, the detention of Japanese Americans during World War II, and the
convictions of communist leaders during the cold war; and the Court
defended the right of newspapers to publish the Pentagon Papers
only after public opinion had turned against the Vietnam war. "A
cynical, though nonetheless apparently accurate, interpretation of
the Court's free speech jurisprudence is that political dissidents
become entitled to significant constitutional protection only when
they cease to pose a serious threat to the status quo--that is,
Communists and Ku Kluxers in the second half of the 1960s, but not,
respectively, in the 1950s or 1920s," writes legal historian
Michael Klarman.

A survey published in Judicature of 88 civil rights and civil
liberties cases between 1953 and 1994 found that, in most cases,
the Court was roughly in sync with public opinion. Generally, when
public opinion opposed a particular rights claim, so did the
Supreme Court--supporting only 40 percent of the claims that the
public opposed. When public opinion was evenly divided or favorable
to the rights claim, the Supreme Court supported the claim in about
70 percent of the cases.

For most of U.S. history, the public expected that civil liberties
in wartime would be protected primarily by Congress rather than the
courts. The great principles of free speech and fair trials that
the courts are willing vigorously to enforce today--in particular,
the right to criticize government officials and the right to seek
judicial review of convictions--were formulated and defended for
most of U.S. history by Congress; and the courts came only
belatedly to codify constitutional rights that had been defined and
won in the political process.

In 1917, for example, the Wilson administration tried to exploit
antiwar sentiment by urging Congress and the courts to suppress
political dissent. In debates over the Espionage Act of 1917,
Congress took its constitutional responsibilities seriously and
rejected some of the most draconian provisions proposed by Woodrow
Wilson, including one that would have allowed the president to
censor the press. (Some Bush administration officials have
implausibly tried to resurrect the Espionage Act of 1917 by raising
the possibility of prosecuting New York Times journalists for
exposing the NSA's secret surveillance program.) Despite Congress's
attempts to protect free speech by refining the Espionage Act,
lower-court judges tended to construe the act very broadly. As a
result, more than 2,000 people were prosecuted under the Espionage
Act, and more than 1,000 of them were convicted.

Not until 1937 did the Supreme Court finally repudiate its
restrictive view of free speech, reversing the conviction of a
Communist Party activist who had urged the creation of an
independent black nation in the South. But, in doing so, the Court
relied on principles that civil libertarians had already persuaded
Congress to embrace--namely, that speech could only be banned when
it threatened to incite illegal conduct. And it did so at a time
when public opinion was willing to protect agitators for civil
rights.

This isn't to say that the courts throughout U.S. history have been
entirely passive in the face of executive overreaching. But the
courts have tended to be most effective when, rather than acting
unilaterally, they encourage Congress to oversee the executive--and
refuse to let the executive take extraordinary measures without
clear congressional support. For example, the Court's decision to
uphold the detention of Japanese American citizens in the Korematsu
case in 1944 is widely viewed as one of the darkest moments in its
history. But, although properly criticized for succumbing to
popular hysteria, the Court was also careful to distinguish between
temporary executive detentions (which had been endorsed by Congress
as an emergency measure) and ongoing executive detentions (which
Congress never endorsed). In a case decided the same day as
Korematsu, the Court struck down the ongoing detention of Mitsuye
Endo, a 22- year-old clerical worker. The congressional law
authorizing curfews and evacuation on the West Coast said nothing
about detentions, the Court emphasized, and the program had been
developed by government officials in the heat of the moment--much
like the NSA surveillance program. By insisting on explicit
congressional authorization for extraordinary presidential actions
during wartime, the Court encouraged both branches carefully to
weigh the consequences of abridging liberty in the name of
security.

Electronic surveillance is another area where the Supreme Court has,
in the past, made suggestions and Congress has responded. In 1967,
the Court offered a general framework for the regulation of
wiretapping, and Congress responded by supplying the details,
resulting in one of the most successful privacy laws ever.
Similarly, both of the laws that the Bush administration's
surveillance program seems to have violated--the Foreign
Intelligence Surveillance Act of 1978 and the Stored Communications
Act of 1986--were passed by Congress in response to Supreme Court
opinions that invited congressional action, rather than preempting
it. The Court outlined a broad framework for regulating
surveillance and allowed Congress to fill in the blanks, instead of
presuming to impose detailed rules by judicial fiat.

Unfortunately, after September 11, both the Supreme Court and the
executive found themselves in a more unilateralist mood. While
other Western democracies have imposed legislative and judicial
oversight on the preventive detention of terrorism suspects, the
Bush administration--arrogantly and inexplicably-- refused to
acknowledge any role for Congress or the courts.

If President Bush had mustered the humility to ask the Republican
Congress for help, it would have immediately obliged by passing a
comprehensive law of preventive detention. Instead, the
administration chose to compound the dangers of preventive
detention by making up its procedures on the fly, inventing new
legal categories in order to avoid accountability to anyone outside
the executive branch.

In repudiating the Bush administration's unilateralism,
unfortunately, the Supreme Court was more concerned about saving
the president from his own excesses than it was about encouraging
Congress to supervise the president. In the Hamdi case in 2004,
four justices--Sandra Day O'Connor, joined by the late William H.
Rehnquist, Anthony Kennedy, and Stephen Breyer--concluded that
Congress had authorized the detention of enemy combatants seized on
the battlefield, but they also concluded that citizens held in the
United States as enemy combatants must be given a meaningful
opportunity to challenge their detentions before a neutral
decision-maker. Accordingly, they suggested a series of judicial
procedures that might allow the president to detain citizens with
oversight by federal judges or by a military tribunal.

In focusing self-referentially on the role of judges in checking the
president, the Supreme Court slighted the role of Congress, which
might have been more likely to make its views clear if the Court
hadn't preempted the need for congressional action. This had the
unfortunate effect of removing any political pressure on Congress
to enact the comprehensive procedural safeguards that some European
countries with systems of preventive detention have adopted. It
also emboldened Bush to take the remarkable and unconvincing view
that the congressional resolution authorizing him to find the
perpetrators of the September 11 attacks could be stretched to
authorize him to break U.S. surveillance laws with domestic
wiretaps of American citizens. In fact, the Supreme Court has
hardly endorsed an expansive view of the "use of force" resolution:
Four justices have insisted that the congressional resolution
doesn't authorize the detention of American citizens seized in the
United States, and a fifth, Antonin Scalia, has insisted that the
resolution doesn't authorize the detention of a citizen under any
circumstances. For this reason, the Court may well be skeptical of
the Bush administration's claim that Congress has authorized
domestic surveillance. If, by contrast, the Court had struck down
the executive's system of preventive detention as being
unauthorized by Congress, then Congress likely would have stepped
into the breach to provide whatever authorization the president
thought necessary.

Similarly, after the Court held, in 2004, that aliens detained at
GuantAnamo Bay had a right to file petitions of habeas corpus
challenging their detention, Congress responded essentially by
overturning the decision. If the Court had ruled more
modestly--holding that enemy combatants tried before military
commissions could challenge the legal basis for their trials, but
that other detainees captured and held outside the United States
could not do so--then Congress might not have been roused to
repudiate the Court in such sweeping terms. It's always a good
thing when Congress clarifies its views in the war on terrorism.
But, instead of passing detailed regulations specifying the
conditions for military trials, Congress was provoked instead to cut
off access to the courts without providing a better alternative.
Now the Court has another opportunity to rule on the
constitutionality of the military commissions in the Hamdan case,
which it will decide by the end of June. Rather than holding that
the military commissions have been authorized by Congress but must
comply with the Geneva Conventions, the Court would do better to
refuse to express an opinion about whether Congress has authorized
the commissions. This would force Congress to make its views
clear.

Why has Congress been so passive after September 11, refusing to
assert its authority by supervising the president's broad claims of
executive power--and also refusing to authorize judges to do so?
The most obvious explanation is that this particular Republican
Congress has been so reluctant to impose any limits on the White
House that it has abdicated much of its oversight responsibility
for partisan reasons and turned itself into a rubber stamp for
executive overreaching. At the same time, the president has
demanded congressional passivity by repeatedly asserting his own
unilateral power to detain American citizens without congressional
authorization. By contrast, previous congressional decisions to
detain American citizens followed some sort of executive invitation
to action. John Adams thought that he needed Congress's approval to
detain even aliens in wartime. Abraham Lincoln believed that he and
Congress shared the power to detain American citizens, and, as a
result, Congress approved his suspension of habeas corpus--albeit
after the fact. Once the United States entered World War II,
Franklin Roosevelt cooperated with Congress, and, as a result,
Congress made it a crime to violate his evacuation orders on the
West Coast.

If anything could rouse Congress from its somnolence, you would
think that the domestic surveillance scandals would. But, in the
current polarized atmosphere, the congressional response to
domestic surveillance may continue to divide along party lines. By
and large, the country seems to be split over NSA surveillance.
After breaking the latest surveillance story, USA Today reported
that 51 percent of Americans disapproved of the NSA's data-mining of
phone records, while 43 percent of those polled said they favored
the program. These numbers are consistent with the response to the
other NSA surveillance program after the Times exposed it: Three
national polls in January found that slightly more Americans
supported the program than opposed it. But these numbers break down
further along party lines, with Republicans more likely to support
warrantless wiretaps and Democrats more likely to oppose them. This
is hardly a recipe for a bipartisan groundswell in Congress that
could lead to meaningful reform of the kind that followed the
revelation of Nixon's spying on his critics in the 1970s.

If the Democrats take the House or Senate in November, of course,
Congress may indeed lash out against domestic surveillance at last.
But the Democrats have already made clear that they are more
interested in using their subpoena powers to investigate the White
House's past abuses than in refining the law to ensure that similar
abuses don't occur in the future. Representative John Conyers, who
would be head of the House Judiciary Committee, introduced a bill
in December calling for a "select committee to investigate the
Administration's intent to go to war before congressional
authorization, manipulation of pre-war intelligence, encouraging
and countenancing torture, retaliating against critics, and to make
recommendations regarding grounds for possible impeachment. " Now
that a Democratic takeover of the House is looking less
hypothetical, Conyers has backpedaled: Rather than immediately
seeking impeachment, Conyers qualified recently, he was calling for
comprehensive oversight of the administration's alleged abuses
involving surveillance and torture, "performed by a select
committee made up equally of Democrats and Republicans."

Congressional Democrats ought to resist the immediate gratification
of punitive investigations and instead rally around some of the
thoughtful proposals to oversee the president's conduct in the war
on terrorism. A model for this kind of oversight is the bill to
authorize the detention of unlawful combatants--introduced by
California Democratic Representative Adam Schiff-- that would give
the president the necessary authority to detain enemy combatants,
but only in exchange for congressional and judicial oversight.
Similar bills could be crafted to amend fisa to allow access to
phone conversations without warrants in emergency situations where
one party has clear links to suspected terrorists, with oversight
after the fact to ensure that the information is not being used to
prosecute low-level crimes having nothing to do with terrorism. A
bill along these lines would be preferable to the one drafted by
Senator Arlen Specter, which would require the government to get
approval from the secret fisa court before engaging in surveillance
without a warrant. Specter's bill seems to dismantle many of fisa's
legal restrictions, rather than reaffirming them. So far,
unfortunately, thoughtful compromises have languished in Congress,
because Republicans will tolerate no legal restrictions on the
president and Democrats are more interested in scoring political
points than in balancing liberty and security. But now that
Republicans face the possibility of losing Congress, perhaps they
will rediscover the virtues of compromise.

It may seem surprising that Democrats and Republicans in Congress
turned toward the courts to spare them the need to make hard
political decisions in the 1960s and 1980s respectively--in each
case, at the very moment when the party began consistently to win
national elections. But the turn toward judicial unilateralism at a
moment of political victory is often a sign of trouble to come. In
the years leading up to the Civil War, for example, the South was
doing quite well in national politics. But, at its moment of
national triumph--after winning the presidential election of
1856--Southern Democrats began to embrace extremist theories about
constitutional restrictions on Congress's power to solve the
slavery question, which the Supreme Court endorsed in the Dred
Scott decision. Southerners spoke of themselves as principled and
derided their opponents as craven politicians, but this exaltation
of principle over politics proved to be their undoing.

Today, on the right and the left, there are similarly combative
declarations about the importance of defending constitutional
principle regardless of the political consequences. This could lead
to impeachment or to sweeping efforts by the Supreme Court to save
the country in the war on terrorism. By embracing judicial
unilateralism as a mark of their devotion to principle, however,
extremists on both sides risk dooming themselves to electoral
failure. If the courts embrace the invitation to unilateralism,
they risk a backlash that could imperil their effectiveness and
legitimacy in ways that will make the current attacks on judges
look like shadowboxing. Congress can best serve the country by
imposing legal restrictions on the president, rather than trying to
remove him from office or protect him from any oversight at all.
And the courts can best serve the country in the future as they
have served it in the past: by reflecting and enforcing the
constitutional views of the American people.

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