Congress lets the NSA run amok.

by Jeffrey Rosen | June 5, 2006

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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