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By Marion Edwyn Harrison, Esq.
February 11, 2008
On January 31, 2008 President George W. Bush signed a 15-day extension for a temporary statute, itself controversial, commonly called the Protect America Act, which has been on the books only six months. The Act purports to confer upon the Executive Branch of the Federal Government certain rights of interception of what those of us not expert in pertinent technology might call types of electronic or mechanical (that is, not via mail) message transmission between somebody abroad and somebody within this country. Congress enacted the Act in light of agitation and confusion about Executive Branch interception activity, Congress having inserted itself into micro-management of such activity by the Foreign Intelligence Surveillance Act of 1978, often called “FISA.” FISA arguably was a predictable sequence to the War Powers Act of 1973.
Exactly what Congress will do now remains to be seen, the more unpredictable in view of its penchant for intrusion into foreign-affairs type of functions historically entrusted to the President and his appointees and into short-term legislative “fixes.” It is clear that many - especially more liberal on the one hand, more libertarian on the other - Members of Congress are upset with the Bush Administration’s Terrorist Surveillance Program (“TSP”). The merits and efficacy of TSP may be subject to objective analysis but the results of any such analysis may not be relevant.
There are problems theoretical and pragmatic. The Founders unmistakably envisioned a strong and virtually unhampered Presidential control of foreign policy. Congress was allowed its functions of appropriating money, confirming Presidential appointments requiring advice and consent, ratifying treaties and declaring war. Nothing in the Constitution, in that authoritative Alexander Hamilton - John Jay - James Madison statement of intent and purpose compiled as THE FEDERAL PAPERS or, so far as this writer knows, elsewhere, confers upon Congress the task, much less the authority, to micro-manage the President’s conduct of foreign affairs.
Discovery - and, one hopes, interception - of the planning and organizing of terrorism by foreign sources who conspire, coordinate, facilitate or finance sources within this country unquestionably is a foreign-relations function. Equally unquestionably it is a function which only an administrative body, as contrasted with a legislative body, can perform.
Those who wrote, proposed and ratified the Fourth Amendment clearly did not have in mind second-guessing, much less micro-managing, the Executive Branch in identifying and/or protecting against terrorism originated abroad. Thus, their concern as manifested in the Fourth Amendment was that there be no “unreasonable “search or seizure. The courts through the years since ratification of the Fourth in 1791 have defined what constitutes an unreasonable search or seizure. The definition has nothing to do with mechanical communications between persons abroad and persons within the United States.
The experienced and constructive Director of National Intelligence, retired Navy Vice Admiral Michael McConnell, has warned that already those entrusted with attempting to protect our national security from foreign-based or foreign-connected terrorist activity are missing a large quantity of valuable information.
A powerful argument can be made that it would be highly advisable for Congress for a protracted period of time to observe Executive Branch international message-surveillance activity. In due course, and surely not prematurely, were there convincing and significant evidence of violations of American citizens’ rights Congress might publicize those violations. The electorate always has its remedy, if only once quadrennially.
Meanwhile, the risk of jeopardizing our national security should not be elevated.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation
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