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Apparent Agreement on NSA Program Authorizes Program, Makes Judicial Review Optional

The Washington Post is reporting that the White House has agreed to a variation on Senator Specter’s proposal to offer statutory authorization for the NSA domestic surveillance program.

If the details hinted at in the story end up being accurate — a big if, mind you — it sounds like this is a considerable victory for the Administration. Here’s my thinking. First, and most importantly, the legislation apparently will authorize the program as a matter of statutory law. That must be a big relief for the Administration after Hamdan. Second, the legislation does not actually require any judicial review. Rather, it gives the President the option of submitting the program to a one-time judicial review limited to constitutionality conducted by the FISA Court. (Bush apparently has promised to submit the legislation to the FISA Court if the legislation is passed exactly as it was agreed to, but I don’t know how likely it is that the legislation would be passed without any amendment.)

Third, it sounds to me like any judicial review by the FISA Court would give the Administration a few chances to establish the constitutionality of the program. If the FISA Court says it’s illegal, DOJ presumably can go to the Court of Review, and if it loses there, to the Supreme Court. In contrast, if the FISA Court approves the program, no one can appeal to challenge the decision. Fourth, my sense is that the media is in the mood to sell this legislation as a post-Hamdan retreat for the Administration. That will help take the NSA program off the political front-burner without interfering with it.

Finally, the legislation apparently would give the Attorney General the authority to order the consolidation of the civil suits against the government relating to the program and to give the consolidated case to the FISA Court. (I’ll have to think about how that might work procedurally, especially in the event of an appeal.) All in all, this seems like a good deal for the Administration.

Thanks to “Just An Oberserver” for the link.