Thomas Smith inquires:

Why would FISA provide for warrantless surveillance during wartime for 15 days only after a declaration of war? This is a very strange provision, if you think about it. There is no reason to expect that the first 15 days of a war would be when warrantless surveillance would be most useful. Or is the idea that in the event of a sneak attack, you might need to begin eavesdropping immediately, but 15 days would give you long enough to line up your applications to the FISA court? If so, that is certainly an outstanding example of Congressional stupidity. It almost seems that the 15 day provision is there to show that the President’s Article II power to surveil during wartime has not been entirely eliminated; that is, the 15 day provision has a kind of place holder feeling to it, more certainly than making any kind of practical sense.

It seems to me that the obvious explanation for the 15-day rule is the same as the explanation for the time-limit in the War Powers Act: it gives Congress enough time to decide whether or not to extend the authority beyond the statutory minimum (just as the WPA gives Congress the time to decide whether or not to continue to delegate its power to conduct military operations to the president). Since Congress apparently did not decide to suspend the FISA warrant requirement beyond the 15-day limit (i.e. on or before September 26, 2001), it is reasonable to conclude that Congress wanted the FISA warrant requirements to be followed beyond that date.

As an aside, I’m amused by conservatives running around treating Article II’s penumbras and emanations like a giant Neccessary and Proper Clause. In re Neagle ain’t exactly a presidential blank check, unlike McCulloch, for good reason. By all means, we should have a debate over presidential surveillance powers, but Smith et al. seem to be suggesting the blank check approach—what my fellow political scientist Steven Taylor, no liberal, has been hammering on for weeks as being completely unacceptable and incompatible with our system of checks and balances. If Democrats have been guilty of simplistic arguments—and they have—so too have defenders of the administration’s approach like Smith, whose basic argument boils down to either “trust us” or vague handwaving in the direction of broad discretionary executive powers that are thoroughly inconsistent with judicial conservatives’ approaches to other parts of the constitution.

Update: There’s more FISA stuff from Orin Kerr.