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The Podium

Acting judicially

William Faulkner wrote that the “past is never dead, it’s not even past.” The current controversy concerning the National Security Agency’s sweeping collection of data concerning communications by Americans is a reminder that he was right.

A comparable controversy existed in the 1970s. In the aftermath of Watergate, it was revealed that: the Federal Bureau of Investigation had been spying on civil rights and peace groups, and disrupting their activities; the Central Intelligence Agency had been reading mail between American citizens and individuals in the Soviet Union; and the NSA had a list of Americans whose international communications it monitored.

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In what proved to be a successful effort to revive confidence in the Department of Justice scarred by Watergate, and to respond to the abuses by investigative and intelligence agencies, President Gerald Ford appointed Edward Levi attorney general. During World War II, Levi had been an assistant to Attorney General Francis Biddle, a civil libertarian who ardently, but unsuccessfully, argued against the internment of the Japanese. Levi subsequently earned an exceptional reputation for intelligence, integrity, and impartiality as Dean of the University of Chicago Law School and the University’s president.

As Jack Fuller, Levi’s former assistant, writes in “Restoring Justice,’’ a collection of Levi’s speeches as attorney general, Levi addressed “the corrosive skepticism of the times, the need to restore confidence by discussion and by demonstration, and the ideal of the executive branch ‘acting judicially.’” We are now challenged to do so again.

It is valuable to consider what it means for the executive branch to “act judicially.” Levi was not suggesting that any of the president’s powers be transferred to the judiciary. Rather, he was advocating that the president exercise those powers — particularly those that have to be exercised secretly — in a manner that emulates the judicial process.

The judicial process considers, often balances, and ultimately decides among competing claims. Judicial decisions are made by independent arbiters, typically after the presentation of opposing evidence by adversaries in open proceedings.

The judicial process operates differently where searches and seizures, including wiretaps, are involved. The Fourth Amendment requires that any government search or seizure be reasonable. It was a response to the hated British writs that gave petty officers broad discretion to search an individual’s most private places and communications. Such searches threatened free thought and discouraged free speech, including political dissent. As Justice Louis Brandeis wrote, the Fourth Amendment “conferred as against the government, the right to be left alone — the most comprehensive of rights and the right most valued by civilized man.”

The Fourth Amendment provides that, ordinarily, a search or seizure is reasonable only if a detached, impartial judge finds there is probable cause to believe that it will produce evidence of a crime. This warrant requirement is based on the understanding that we should not trust law enforcement officials with a vested interest in the outcome of an investigation to strike the proper balance between its importance and the intrusion on an individual’s right to privacy. Although warrants in criminal cases are issued secretly by a judge after hearing only from the government, they ultimately become part of the public record, and the justification for their issuance is subject to litigation by adversaries.

As Levi often emphasized, government officials also have a legitimate interest in the privacy of some of their communications and the secrecy of some of their activities. It has long been recognized that confidentiality promotes the candor that can be important to reaching a consensus on difficult issues. Indeed, in 1789, the deliberations of the Constitutional Convention were secret and it may be that the new Constitution could not have been created without that confidentiality. Similarly, the ability to keep the “Ultra Secret” that, in 1939, Britain broke the German code contributed greatly to the Allies’ victory in World War II.

Recognizing the competing claims of personal privacy and national security that sometimes justify secret intrusions on it, Levi engaged in “government by discussion” in pursuit of the ideal of an executive branch that “act[ed] judicially” and would be trusted by the people despite its inability to be completely transparent. Levi took every opportunity to discuss publicly, to the extent permissible, the administration’s policies concerning electronic surveillance. Levi persuaded the president to permit the Department of Justice, rather than the self-interested intelligence agencies, to decide what classified or arguably privileged information should be made public. He also provided more information to Congress than the intelligence agencies, as well as the Departments of Defense and State, preferred.

In addition, through thoughtful, bipartisan discussion, Levi developed and generated consensus for legislation establishing a Foreign Intelligence Surveillance Court. Then, as now, the extent — and indeed the existence — of the president’s inherent authority to conduct electronic surveillance of people who are not United States citizens to obtain foreign intelligence was uncertain. While Levi believed such authority existed, he recognized the importance of preventing a repetition of the recent abuses and of providing accountability for executive action by requiring the authorization of a judge before such electronic surveillance could be conducted. By involving Congress and the judiciary in the effort to strike the proper balance between national security and possible intrusions on the privacy of Americans in the process of obtaining foreign intelligence, Levi hoped to assure the public that the president’s power would be properly employed, while protecting against the risk that reaction to the abuses of that power that had been revealed would injure the president’s ability to protect the nation.

Levi’s efforts led to legislation that created the Foreign Intelligence Surveillance Court shortly after Ford and Levi left office. The new court was empowered to issue a novel form of warrant for electronic surveillance intended to obtain foreign intelligence upon a showing of probable cause that the target of the surveillance is a foreign power or an agent of a foreign power. For decades, the new court contributed to public trust in a necessarily secret process.

Following the 9/11 attacks, however, President George W. Bush authorized the NSA to conduct warrantless interceptions of telephone and email communications when one party was outside the United States and was believed to be a member or agent of Al Qaeda. In 2007, the Foreign Intelligence Surveillance Court ordered that any such surveillance be approved by it and subsequently narrowed the scope of permissible surveillance. In response, new legislation was enacted in 2008 to permit the executive branch to conduct electronic surveillance of individuals believed to be outside the United States and not US citizens, and to obtain information concerning Americans relevant to that surveillance, if the Foreign Intelligence Surveillance Court approved the program generally rather than a particular proposed search and seizure.

Edward Snowden’s recent revelations indicate that this new statutory authority has been used by the government to obtain comprehensive data on the telephone and email communications of Americans, in the United States. The deputy director of the NSA recently testified that an investigation of one suspected terrorist could involve a review of the telephone and email records of 2.5 million United States citizens.

While the precise nature and scope of the still officially secret programs remains unknown, there is now, again, deep distrust concerning the activities of the NSA. President Obama has represented that the NSA’s secret activities have been fully described to Congress and the Foreign Intelligence Surveillance Court, which have each authorized them.

However, the director of National Intelligence, James Clapper Jr., recently testified before the Senate Intelligence Committee that the NSA had not collected data on millions of Americans and later apologized for that statement being “clearly erroneous.” Representative James Sensenbrenner, the sponsor of the legislation on which the administration relies to obtain data concerning the communications of United States citizens, has asserted that Congress never intended to authorize the government to acquire records of every telephone call and store them in a huge database to search later. Senators Ron Wyden and Mark Udall, who are members of the Senate Intelligence Committee, have stated that the intelligence agencies “significantly exaggerated” to Congress and the Foreign Intelligence Surveillance Court the effectiveness of an NSA bulk email records collection program, which was terminated in 2011, after being criticized by them in classified communications.

Adding to the public apprehension, the Foreign Intelligence Surveillance Court’s decisions remain completely secret despite a request from several senators for declassification of significant opinions. Its chief judge has declined to release even summaries of those decisions because of a concern that they would create “misunderstanding or confusion.” The president has reportedly now charged Clapper with deciding whether any part of the court’s classified decisions should be made public.

This is not an executive branch that Levi would have viewed as “acting judicially.” There are, however, measures the president could take to emulate Levi’s approach in an effort to regain trust despite the fact that complete transparency is not possible.

The president could, and should, promptly appoint a Cabinet-level “Secretary of Civil Liberties” to advocate the interests which the public may reasonably fear are not now adequately represented when momentous decisions are secretly being made. Such a secretary should advise the president on whether the benefits of existing programs justify the intrusions on privacy they involve, as well as monitor whether they are being implemented as intended. The secretary should also advise the president concerning the legality and wisdom of any proposed program or particular surveillance. In addition, the secretary should be given standing to appear in the Foreign Intelligence Surveillance Court to question or oppose the Department of Justice’s request for approval of any new program or warrant for more targeted surveillance. Finally, the secretary should have an opportunity to be heard before the president, rather than the interested agencies, decides what information should be shared confidentially with Congress or made public. The secretary’s office would also provide a place for “whistleblowers” to report alleged abuses without risking prosecution for expressing their concerns about secret surveillance.

President Obama is a true constitutional scholar. However, any president, and the judges of the Foreign Intelligence Surveillance Court as well, would benefit from hearing from advocates representing different interests before important decisions that are intended to remain secret, and therefore immune from public scrutiny, are made.

As the examples of Attorneys General Biddle and Levi indicate, traditionally we have relied primarily on the Department of Justice to assure that the interests of privacy and civil liberties are vigorously represented when the president must make decisions that require resolving the competing claims of those interests and national security. However, since 9/11, the department’s role in developing and defending controversial secret programs may actually have impaired its ability to do so. Events like the successful 2004 effort of Deputy Attorney General James Comey and FBI Director Robert Mueller to prevent the White House Counsel from prevailing on the hospitalized attorney general to authorize a warrantless surveillance program that they viewed as unlawful is a reminder that the Department has since 9/11 at least at times performed well. However, fairly or unfairly, the confidence of the American people in the department’s capacity to balance the competing interests judiciously has been eroded. Something more is needed to promote faith in the integrity of the processes by which significant decisions are now being secretly made.

It may be argued, however, that a secretary of civil liberties is unnecessary. In 2004, the 9/11 commission recommended the creation of a board within the executive branch to promote the protection of civil liberties. Such an office was created within the office of the president and proved to be ineffective. In 2007, it was transformed by statute into an independent agency, the Privacy and Civil Liberties Oversight Board. The members of the board were not, however, appointed until May 2013, and its chair is a relatively unknown former Federal Trade Commission lawyer. The perceived partisan abuse that led to the demise of the Independent Special Prosecutor should prompt concern about whether any powerful agency can be truly independent in this era. Recent experience with the Federal Election Commission should prompt skepticism about whether any important independent agency can even function now. In any event, if the president appointed a person of stature, such as retired Supreme Court Justice David Souter, as “secretary of civil liberties,” and gave the secretary a seat at the table when vital judgments are being made, the prospect of well-informed decisions concerning both security and privacy, and public confidence in those secret decisions, would be enhanced.

As Levi said, “[s]uccessful democracies achieve an accommodation among competing values.” As he knew, the way a government strives to achieve that accommodation is important to the success of the effort. Now, in another time of corrosive skepticism, recalling Levi’s example of establishing a government by discussion and an executive branch that acts judicially may contribute to the restoration of essential public trust. If that occurs, the attorney general will have made another immeasurable contribution to our nation.

Senior US District Court Judge Mark L. Wolf was a special assistant to Attorney General Edward Levi.
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