Tornado Alley (PROG)

[My Dime]

Deliberation Nation
By NOAH FELDMAN
The public hearings that the Senate Judiciary Committee is scheduled to begin holding tomorrow are supposed to help determine whether the National Security Agency's domestic spying program broke the law. But this is no ordinary trial. Although lawyers will abound and oaths will be administered, there will be no prosecutors or judges, and there are as yet no defendants, no one charged with a specific legal violation. Instead, a profusion of statutes, case law and constitutional provisions surrounds and obscures the issue. The committee will try to shed light on the question of legality, but it won't be easy. We are in the midst of a once-in-a-decade constitutional weather pattern — what you might call a fog of law.

The main reason that the issue before the committee looks so confusing is, paradoxically, that the facts are basically settled. The Bush administration has acknowledged ordering the N.S.A. to listen to conversations between people in the United States and suspected terrorists abroad without getting warrants first. (It would be fascinating to know whose conversations were overheard and how many wiretaps proved useful, but the answers to such inquiries may be classified, and a public accounting is unlikely.) This leaves the legal status of the listening-in as the most likely topic of conversation, and maybe the only one.

The Foreign Intelligence Surveillance Act of 1978 requires warrants for eavesdropping on conversations involving anyone in the United States — so on the face of things, it looks as if the domestic spying program violated the law. Yet the administration argues that another law, the Sept. 18, 2001, Authorization for Use of Military Force, superseded FISA: by giving the president the power to make war against Al Qaeda and its supporters, the argument goes, the law implicitly authorized the customary activities of war, including a wide variety of intelligence gathering. When challenged on this point, the administration's next line of defense is the Constitution: the president's responsibility as commander in chief and his executive power over foreign affairs are said to entail the authority to listen to conversations across borders that are relevant to national security. In a final constitutional twist, critics of the administration argue that the Fourth Amendment to the Constitution guarantees the people the right to be secure from unreasonable searches and seizures, perhaps including warrantless wiretaps.

This morass of competing legal authorities practically begs for an organizing framework. The senators on the judiciary committee are likely to make repeated reference to Justice Robert H. Jackson's canonical concurring opinion in Youngstown Sheet and Tube Company v. Sawyer — the 1952 Supreme Court decision holding that President Truman lacked authority to seize the nation's steel mills in order to prevent a labor strike that threatened arms production for the Korean War. According to the system that Jackson laid out, when Congress has expressly authorized the president to act, "his authority is at its maximum." When Congress has expressly or implicitly told him not to act, then "his power is at its lowest ebb." In between is when Congress is silent — what Jackson memorably called the "zone of twilight." In this situation, the status of presidential action is uncertain and is therefore likely to be decided not by law but by political circumstances and practical considerations.

In the case of the N.S.A.'s domestic spying program, the debate about statutory and constitutional authority threatens to create a twilight zone of its own. No one seems to think that Congress has been silent; on the contrary, it has either flatly banned the eavesdropping or implicitly authorized it. The confusion is making the debate as much a political contest as a legal one. It is here that the committee hearings become most relevant. Congress does not decide actual legal cases, but it has a critical role to play in shaping public deliberation, which in the end may be just as legally influential. By debating what the N.S.A. has done in pursuing security at the expense of privacy, the senators can put before the public the question of how we ought to strike that delicate balance far better than unelected judges could. The specter of the hearings has already driven the Bush administration to start arguing that the FISA rules were inadequate to meet new, post-9/11 threats. Whether this is true — and whether the right constitutional solution was for the president to change the rules by fiat, instead of by asking Congress for permission — is an issue that needs to be discussed.

The Senate is sometimes derided as a mere debating chamber, but in this case, debate is exactly what we need. For the last five years, with a Republican-controlled Congress, Americans have not been exposed to serious Congressional debate on any major issue, let alone how far the executive branch may go in protecting our security. These hearings — called by a Republican, Senator Arlen Specter — will afford us the first major opportunity to hear and (via our representatives) air legitimate concerns about whether the president has gone too far.

Furthermore, the committee's debate will have an indirect effect on the courts. When the eavesdropping issue finally does come before a court — as it seems likely to by one route or another; two civil rights groups recently filed lawsuits against the administration over its domestic spying program — the judges who address it will be aware of what happened in the hearings and of the public debate surrounding them.




Debate should, of course, ultimately lead to action. Lawmakers cannot reverse wrongdoing that has already occurred. But they can express outrage (in a resolution or on the floor) that the president saw fit to usurp Congress's power to set the ground rules for secret surveillance. Alternatively, Congress could pass legislation invalidating the executive order authorizing the eavesdropping and thus set the stage for a potential constitutional battle that would move to the courts. Another option would be for Congress to conclude that new laws actually are needed for the war on terror — but it could pass those laws itself instead of letting the president make them up as he goes along. Even though Congress lacks the courts' authority to say what the law is, it can still cast a ray of light through the legal fog.

Noah Feldman, a contributing writer, is a law professor at New York University.

http://www.nytimes.com/2006/02/05/magazine/05wwln_lede.html?pagewanted=print