Spying: "It Makes Sense Today"

John R. Schmidt:

"Levi said a traditional warrant procedure works when surveillance 'involves a particular target location or individual at a specific time.' Foreign intelligence, however, may in some situations require 'virtually continuous surveillance, which by its nature does not have specifically predetermined targets.' In these situations, 'the efficiency of a warrant requirement would be minimal.'

In approving a surveillance plan, 'judicial decision would take the form of an ex parte determination that the program of surveillance designed by the government strikes a reasonable balance between the government's need for the information and the protection of individuals' rights.'"

[. . . . .]

Based on everything we know, NSA's surveillance program would be approved. Even the president's critics generally acknowledge that, based upon what we know, the NSA program is "reasonable" in responding to the Al Qaeda threat.

Although Levi supported legislation in the foreign intelligence area, he rejected the position of Bush critics that the president's authority to order warrantless foreign intelligence surveillance can be limited by Congress to a statutory procedure. Levi told the Church Committee that the president has inherent constitutional authority to conduct such surveillance. Asked by Sen. Frank Church "if the constitutional powers in the area of foreign intelligence are exclusive to the executive or whether they are concurrent with the legislative branch," Levi replied:

"They are sufficiently concurrent so that legislation by the Congress would be influential . . . You are asking me whether I think there is presidential power beyond that, and my answer is `Yes.'"

[. . . .]

Giving a court the power to approve a reasonable surveillance plan proposed by the president gives everyone--the president and those in the executive branch who carry out the surveillance, members of Congress who have oversight responsibility, and the American people--greater assurance that constitutional rights are being protected.

It made sense when Edward Levi suggested it 30 years ago and it makes sense today."