Is it somehow to our advantage that we have, so far, two House committees (Judiciary and Intelligence) struggling for leadership to revise the Foreign Intelligence Surveillance Act's controversial metadata program? Meanwhile, the president has his own ideas about how it should be done, as influenced, or not, by the various commissions and advisory panels set up to soften political criticism from both liberals and conservatives as a result of Edward Snowden's National Security Agency disclosures.
At the root of these questions is the perennial struggle between the Congress and the president on national security matters. However, this latest iteration is unique because the issues are narrower now than the history that brought us to where we are. In fact, we are to the point where our intelligence capabilities are more closely related to the actual threats we face, thus we should be able to tweak what we have to respond to privacy concerns without damaging our ability to deal with new threats.
Does this mean we should be optimistic that the Congress and the president will reach a proper balance for us in these complex matters? Yes, but we should also not lose sight of our political system’s unique influences that are behind the resolution of these kind of issues, each of which contributes to our national strength in its own way.
Here are some of the most significant of these forces at work in context of the current controversy, together with the key factors – and qualifications – affecting them. Recall that the origin of what became the Section 215 metadata program was the terrorist surveillance program directed initially by President George W. Bush after 9/11, pursuant to his constitutional powers as commander in chief.
Recall also that members of both parties in Congress were upset that the president did this on his own. The president responded to this criticism by saying that he had directed the NSA program to protect us in his capacity as commander in chief, and that the NSA was part of the Department of Defense – in short, that he didn’t need Congress to order to authorize the metadata program.
With those battle lines drawn, Congress eventually passed legislation amending the Foreign Intelligence Surveillance Act that basically authorized the president to do what he was already doing, allowing it to save face.
Of course, Congress is now in the process of walking away from the Section 215 programs it authorized on the theory that they didn’t fully understand what they were authorizing. Should they have? Of course, especially the intelligence committees, and the president will no doubt remind them of this during the current debate on limiting the NSA's metadata program.
Furthermore, could the president, on his own, reauthorize a similar program during a new national emergency? Yes, and the political struggle we have underway now could easily be repeated.
Just behind these moves, however, lurk the following more fundamental constitutional arguments:
- Congress believes the Foreign Intelligence Surveillance Act is exclusive, and has maintained that position since the 1970s, when it was passed in response to Watergate and the Church and Pike committee investigations in Congress, which also led to creation of the intelligence committees to oversee the activities, budgets and operations of the intelligence community.
- The president – backed by generations of Department of Justice lawyers – argues that the Foreign Intelligence Surveillance Act is just one of his commander-in-chief-based national security powers needed to manage so-called signals intelligence for our national defense.
- There is a largely hidden group of advocates – mostly outside government but with a few congressional allies – who believe the Foreign Intelligence Surveillance Act itself is unconstitutional, and that the only legitimate surveillances are those ordered by a judge in the context of a criminal investigation and based on traditional definitions of probable cause.
- The jurisdictional fights between the intelligence and the judicial committees – at least in the House – are based on the implicit theory that the intelligence committees somehow misled the rest of the Congress about Section 215, or that they failed in their oversight responsibilities to protect our privacy. The leadership of each house of Congress will decide which committees will have priority with the matter, so it looks now like it will be the Intelligence Committee in the House and the Judiciary Committee in the Senate.
Next, assuming these kind of jurisdictional disputes get into federal court under one procedural theory or another, how are they decided?
The basic point to understand is that the federal courts really don’t want to get involved in these cases. Their primary belief is that these are primarily political questions and shouldn’t be in court at all; rather, Congress and the president should resolve them as part of the political process. However, if there is also a fundamental issue of individual constitutional rights associated with the case – and there might well be – the federal court system might take the case to decide.
This means that the parties to the current debate all realize that the matter could end up in federal court, and some believe that it should. Does the court always get it right? Nope, and this further incentivizes the White House and Congress to compromise and get these matters resolved, thus keeping the issues out of the federal court system.