University of Chicago Law Professor Ed Levi Right on NSA Surveillance Issue
By John R. Schmidt a Chicago attorney
Published February 12, 2006
Thirty years ago, Edward Levi, the most respected U.S. attorney general of the modern era, suggested a procedure that would resolve the dispute regarding President Bush and the National Security Agency wiretapping program.In 1975 testimony to the Church Committee on U.S. intelligence activities, Levi suggested that court power to authorize foreign-intelligence wiretapping in the U.S. go beyond traditional warrants based on probable cause for surveillance of a particular individual. He said it should include power to approve a "program of surveillance" that is "designed to gather foreign-intelligence information essential to the security of the nation." Congress passed the Foreign Intelligence Surveillance Act in 1978, setting up a new court with authority to approve electronic surveillance on a case-by-case basis, but without Levi's suggested additional power.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."Had Levi's procedure been in place, President Bush could have submitted to a court an application setting out the elements of the proposed NSA surveillance program: the target; communications to be intercepted; screening methods; controls on information dissemination. Because FISA procedures are secret, a court application would not have compromised the program's secrecy. If Congress puts this procedure into the law, the president can submit the NSA program for approval now. . .