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.
I’m obviously an idiot, but since when can an Article III court just decide whether a program is constitutional simply because the president decides to ask the court what it thinks? Where’s the case or controversy?
Having quickly glossed the text of the Specter’s new bill, I think it is even more generous to the President than the initial news stories indicate.
The judicial review contained in the bill, so far as I can tell, would only test the constitutionality of the warrantless surveillance with regard to the Fourth Amendment. That has never been the most serious question about constitutionality, IMHO, although it is a non-trivial and unanswered question that merits court review.
Rather, the central constitutional question to me has always been about exective power, and Bush’s assertion that he had Article II authority to override congressional acts in this field. Not only would that question not be tested in Specter’s form of judicial review, Congress by legislation would cede the question to the President.
From the separation-of-powers perspective of Congress, this is worse than language that simply would authorize such surveillance via statute as a policy matter. The insertion of the language deferring to the executive’s constitutional power is much more far-reaching.
The new language of “SEC. 801 EXECUTIVE AUTHORITY,” modified from Specter’s commititee substitute negotiated last month with committee Republicans, now begins:
“Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.”
The basic thrust is to defer to the President and repeal the provision of existing law that FISA’s procedures “shall be the exclusive means” of foreign-intelligience surveillance, which really guts FISA’s core requirement. Using FISA’s procedures becomes optional.
I also notice that FISA’s definition sections would be completely rewritten. Since the statute is very definition-driven, and the existing definitions are artfully crafted, it will take some careful analysis to figure out what is happening there. Upon first impression, it looks like the scope of the surveillance that FISA itself does cover has been cut back very broadly.
I saw a bit of news clip of Specter today announcing this to the Judiciary Committee. He should get an Oscar for portraying this legislation as something he had persuaded Bush to accept in a tough negotion. It could only have been dictated by the White House.
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