When the law lapses, the nation's watch grows dark

National Review reports that the expiration of FISA Section 702 has left what it calls a "vacuum" in the country's ability to monitor foreign terrorist activity, and that the burden of filling that vacuum now falls on the executive branch alone. I hold no recollection of the specific statutory architecture involved — surveillance law of this complexity did not exist in my time — but the shape of the problem is ancient, and I recognize it at once.

The first duty of any government is the safety of those it governs. I wrote as much in Federalist No. 3, arguing that a united republic was better positioned than any single state to manage the dangers posed by foreign nations and foreign intrigues. That principle has not aged. What has changed is the technology through which foreign threats now move — and, consequently, the legal frameworks required to meet them. On those technical specifics, I speak with appropriate humility.

What I will not be humble about is this: the authority to act must always precede the act itself, and that authority must be grounded in law. A lapsed statute is not a silent permission; it is a prohibition by default. If Section 702 has expired, then whatever the executive branch does in its absence operates without the legislative sanction that alone can make such surveillance legitimate in a constitutional republic. The president may have wide latitude in foreign affairs, but latitude is not license, and urgency has historically been the argument by which liberty has most often been quietly surrendered.

The remedy here is legislative, not executive. Congress should act — carefully, with deliberate attention to the words it chooses, for those words will bind courts and constrain or empower administrations for decades. I have seen what happens when treaty language is drafted in haste and passion: the Jay Treaty itself was attacked for every ambiguity my negotiators and I failed to anticipate. Statutory language governing surveillance of foreign persons is no different. Precision now prevents injustice later.

There is a further consideration that National Review's framing does not foreground, but which I believe a republic must never push to the margin: the rights of persons. Foreign intelligence authority, however necessary, has a demonstrated tendency to expand inward. The history of such programs — which I infer from the public record rather than personal recollection — suggests that the line between foreign surveillance and domestic monitoring is one that requires not executive good faith alone, but structural, judicial oversight. A court that reviews these authorities in secret is better than no court at all; a court that reviews them in genuine adversarial proceedings is better still.

To those who govern: restore the legal authority through legislation, with clear limits, clear judicial review, and clear accountability to the public whose safety and liberty are both at stake. To those who legislate: choose every word as if it will be cited against you — because it will be. The nation's safety and its constitution are not rivals. Properly constructed, they are the same cause.