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26
journment, Senators probably would have died. The United States
presents
inviting
targets
for terrorists
cans guarantee maximum publicity.
UNSUITABILITY
OF THE
JUDICIAL
PROCESS
because
FOR
attacks
FOREIGN
on
Ameri-
INTELLIGENCE
DECISIONS
The Supreme Court made clear the special role of the President
in intelligence and foreign policy and has expressed the need to refrain from judicial intrusion into such matters:
The
President,
both
as Commander-in-Chief
and
as the
Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be
published to the world. It would be intolerable that courts,
without the relevant information, should review and per-
haps nullify actions of the Executive taken on information
properly held secret. Nor can courts sit in camera in order
to be taken into executive confidences. But even if courts
could require full disclosure, the very nature of executive
decisions as to foreign policy is political, not judicial. Such
decisions are wholly confided by our Constitution to the
political departments of the government, Executive and
Legislative. They are delicate, complex, and involve large
elements of prophecy. They are and should be undertaken
only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind
for which the Judiciary has neither aptitude, facilities nor
responsibility and which has long been held to belong in
the domain of the political power not subject to judicial intrusion or inquiry.
The FISA flies in the face of this wisdom. A single judge of the
Foreign Intelligence Surveillance Court has the power to deny the
President, or his duly authorized representatives, the use of electronic surveillance on agents of foreign powers, such as foreign
spies or terrorists, engaged in activities hostile to United States in-
terests. Judges are not suited by training or temperament to make
the intelligence evaluations and security decisions involved in for-
eign intelligence electronic surveillances.
The authority for electronic surveillance for foreign intelligence
purposes should rest with the President alone. Presidential
prima-
cy with respect to such electronic surveillance would best satisfy
the need for speed and strict secrecy in United States counterespionage
and
counterterrorism
operations.
Moreover,
Presidential
pri-
macy in such matters is fully consistent with the Constitution and
with the protection of the civil liberties of Americans; indeed, by
contributing to the security of the Nation, it protects the ability of
present and future generations of Americans
oms.
to exercise their free-
1 Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948)
(citations omitted).
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