Disdain for the rule of law is infectious. It began in Guantanamo, but it is now invading the American heartland. The Bush administration sees the wiretapping scandal at the National Security Agency as an opportunity to take the constitutional offensive. It has rejected a careful bipartisan effort to adapt existing laws to new technological realities, seeking instead to liberate presidential power from all traditional restraints by Congress and the courts.
The Senate judiciary committee's reaction has been no less extraordinary. It hasn't capitulated to the administration's counteroffensive, but it hasn't stood firm against it, either. It has chosen to pass the buck to the full Senate by sending two rival bills, representing adaptation and capitulation, to the floor for a vote. Republican Sens. Arlen Specter and Lindsey Graham were responsible for the confusion. They joined their fellow Republicans in a party-line vote of 10 to 8, propelling Bush's bill to the floor. But they then turned around and voted with the Democrats in a 10 to 8 vote supporting Dianne Feinstein's carefully crafted measure. Such shenanigans generally merit contempt, but in this case, that judgment may be too hasty. Sen. Specter had previously been the primary champion of the administration's bill. His last-minute swerve suggests an admirable capacity to rethink that is rare among imperious chairmen of Senate committees. And Graham's hesitation may well augur a willingness to stand up to presidential pressure, as he has been doing on the Guantanamo legislation.
Passed in 1978, the Foreign Intelligence Security Act has been the subject of ongoing revision. It unquestionably needs further updating in light of high-tech surveillance techniques. This is the aim of the Feinstein bill that Specter and Graham backed. FISA currently gives the NSA 72 hours to wiretap before it must go to the special FISA court for a warrant. The administration says this window is too small. So, the bipartisan bill extends it to seven days; if there is another terrorist attack, to 15 days. FISA requires the attorney general to certify personally the need for warrantless surveillance. Attorney General Alberto Gonzales says that this task is too time-consuming, so the Feinstein bill places the administrative burden elsewhere. And if these measures don't suffice, there is plenty of room for further fine-tuning in negotiation with the president and the House.
But it is precisely the prospect of interbranch give-and-take that the administration finds objectionable. The president doesn't want to return to Congress each time FISA needs changing. He wants exclusive authority to revise his wiretapping program without telling the American people anything about plans that may pose a clear and present danger to the Fourth Amendment. Which is why he doesn't like Feinstein's legislation. Under existing law, FISA is the "exclusive" means through which the president can legally engage in national-security wiretapping. The administration's bill replaces this express language with an explicit congressional statement recognizing that the president has an independent authority to wiretap without regard to statutory restrictions. In other words, Congress can amend FISA any way it likes, but the president can do whatever he wants.
Having eliminated Congress from the field of checks and balances, Bush's bill turns to undermining the courts. Since the Supreme Court decision Marbury v. Madison established judicial review in 1803, courts have fashioned basic principles to assure the integrity of their constitutional decisions. Most fundamentally, judges insist on hearing both sides of an argument before they make up their mind. They also require that both sides have a concrete stake in the outcome, guaranteeing that each has powerful incentives to argue their cases forcefully. Under this traditional approach, judges reject roving commissions to reach out and decide constitutional issues. They exercise their ultimate power only when the facts of a case imperatively require it. And when they conclude that the government has violated the constitution, they don't rely on intuition but explain their reasons in an opinion issued to the public. The task of writing down reasons serves to discipline each judge's decision-making. And when the opinion is published, it contributes to a wider debate that clarifies the constitutional stakes over time.
Adversary argument in concrete cases culminating in a published opinion: These are not frills. Without them, judicial review would never have gained legitimacy over the generations. They are the keys to its continuing integrity and vitality. They are also entrenched in the constitutional text, which limits the judicial power to concrete "cases" and "controversies."
The administration's bill challenges all these fundamentals. It grants the government the power to seek authorization for its surveillance programs from the special FISA court in what would be a mockery of a judicial proceeding. The FISA judges will only hear the president's side of the argument. They will consider the NSA program in the abstract, without the discipline of case-by-case judgments. And they may issue their decision in secret.
This system makes federal judges the handmaidens of the executive branch and forces them to go beyond their limited authority to decide concrete "cases" and "controversies." If this bill becomes law, it will generate a constitutional crisis. The specially selected federal judges serving on the FISA court would have a constitutional obligation to resign rather than accept jurisdiction that is beyond the powers vested in them under Article III of the Constitution, which lays out the rules for the judiciary.
A final difficulty further compromises traditional commitments to judicial evenhandedness. Members of the FISA court are selected by the chief justice of the Supreme Court from the pool of federal judges to serve for limited terms. Since there is no check on his power of selection, there is nothing to stop him from appointing judges who are strong advocates of untrammeled presidential power. Of course, he may well resist this temptation, but the American legal tradition does not trust to good intentions on such fundamental matters.
We should not be going down this road. The constitutionality of the NSA wiretapping program is already being assessed the old-fashioned way: by district courts around the country that are considering the merits after hearing both sides of the argument. Their decisions are already generating debate and preparing the way for a thoughtful decision by the Supreme Court in a year or two. There is absolutely no need to break with this tradition. We do not defend the rule of law by destroying the rule of law. And that is precisely what a secret, and potentially biased, tribunal does when it reviews the president's eavesdropping program after hearing only his side of the argument.