In the end, as with so many of the clashes involving presidential power in our history, it is the president who is likely to emerge with the upper hand.From this one we get:
Recall that during the Civil War, Abraham Lincoln had thousands arrested for suspected disloyalty, ordered trials of civilians in military courts and barred from the U.S. mail newspapers critical of the war. During and after World War I, Woodrow Wilson ordered the arrest of socialist leader E.V. Debs for criticizing the war and authorized the Palmer Raids, in which more than 10,000 radicals were rounded up and held without trial for an extended period.
During World War II, Franklin Roosevelt ordered accused Nazi saboteurs (two of whom were American citizens) tried before a military tribunal that quickly sentenced them to death. He also signed the executive order forcing 110,000 Japanese-Americans into internment camps.
(Former US Attorney General Edward) 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.
The court role would be limited to approving the "reasonableness" of the plan under the 4th Amendment, using a standard of review that recognizes the president's primary constitutional role in surveillance on foreign powers. The approving court might be the three-judge FISA court of review.
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.