Judicial Pushback
Two rulings curtail the Bush administration's overreaching in national security investigations.

Tuesday, October 2, 2007

OVER THE PAST few weeks, federal trial judges have dealt serious blows to two of the Bush administration's most potent anti-terrorism tools -- national security letters (NSLs) and warrants issued under the Foreign Surveillance Intelligence Act (FISA). These rebukes may well be an indication that the administration's overreaching has finally come back to haunt it. Perhaps they signal an increasing boldness on the part of a judiciary intent on striking a more proper balance between civil liberties and national security, especially in the relative calm of six years without a terrorist strike in the homeland.

The rulings by both judges went too far in paring back legitimate executive prerogatives, but they also identified real problems in each of these programs. Congress and the administration should address both issues as soon as

possible.

Two weeks ago, U.S. District Judge Victor Marrero of the Southern District of New York invalidated a provision governing national security letters that prohibited recipients from speaking about their existence. Prosecutors have testified that NSLs are an invaluable tool and often serve as the evidentiary basis for obtaining warrants under FISA. In striking down the nondisclosure provision as unconstitutional under the First Amendment, Judge Marrero eviscerated NSLs, which are used in counterintelligence probes to gather e-mail logs, telephone records and financial transactions.

Last week, U.S. District Judge Ann L. Aiken of the District of Oregon dealt a blow to FISA. Under the original 1978 version of the law, prosecutors had to prove that they had probable cause to believe that the target of the warrant was an agent of a foreign power; they also had to stipulate that "the purpose" of the warrant was to gather intelligence. Judge Aiken objected to a 2001 change enacted as part of the USA Patriot Act, under which prosecutors had to show that intelligence gathering was only a "significant purpose" of the surveillance. In the case before her, involving an Oregon man falsely accused of playing a role in the 2004 Madrid train bombings, Judge Aiken rightly concluded that law enforcement agents under the cover of FISA had gathered all sorts of information and evidence -- not just intelligence -- without needing to meet the more stringent requirements of a traditional warrant. Judge Aiken invalidated this central provision of FISA as violating the Fourth Amendment prohibition against unreasonable searches and seizures.

In both instances, the judges used constitutional standards as blunt instruments. If their decisions are allowed to stand, two programs that have contributed to counterterrorism efforts will be compromised. Congress and the administration should not allow that to happen, and they should not wait in the hope that an appeals court will sort this out. Lawmakers have already promised to reconsider the changes to FISA they rushed through this summer; the administration is already weighing compromises that would respect lawmakers' legitimate concerns while allowing it flexibility in rooting out terrorists. They should take this opportunity to engage in a serious debate that could provide a more nuanced and acceptable remedy for the problems that these two cases identified.