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The Specter Bill’s Major Shift in Constitutional Authority to Conduct Monitoring

I have read the Specter bill, and am most intrigued by Section 9 of the bill, which is titled “CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.” Interestingly, the Section is a “clarification” only if you assume the correctness of the President’s more controversial claims to Article II authority. If you accept the more traditional understanding of the separation-of-powers seen recently in the Supreme Court’s decision in Hamdan v. Rumsfeld and Justice Kennedy’s concurrence in that case, then this “clarification” is actually a major reorientation of the role of Congress in foreign intelligence monitoring away from the 1978 framework of FISA. [See the Update at the bottom for further discussion.]

The key language is the new Section 801 of FISA:

Nothing in this Act [FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.

That strikes me as a pretty major change, given that the purpose of FISA in 1978 was to attempt to regulate that authority. The Specter bill then would rewrite the prohibitions of FISA to explicitly allow for this authority. For example, 50 U.S.C. 1809 presently states that “[a] person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute.” In other words, it’s illegal to conduct warrantless monitoring. The new version would be rewritten as follows:

A person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute or under the Constitution.

(emphasis added) Thus, the President would have a right to excercise his inherent constitutional authority to order monitoring absent Congressional regulation, and the prohibitions of FISA would apply only to monitoring that does not fit within that authority.

Similarly, the bill would amend Congress’s current command that the Wiretap Act and FISA must provide the exclusive means of conducting monitoring. The current version of the statute states:

Nothing contained in [the Wiretap Act or other laws regulating criminal investigations] shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

18 U.S.C. 2511(2)(f).

Under the Specter bill, this language would be amended to be:

Nothing contained in [the Wiretap Act or other laws regulating criminal investigations] shall be deemed to affect the acquisition by the United States Government of foreign intelligence information that is permitted under a Federal statute or the Constitution of the United States.

(emphasis added).

On my first read, at least, it seems like this Section 9 is the most important part of the Specter bill. Maybe I’m missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.

Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review.

UPDATE: A helpful exchange in the comment thread points out that there are two different ways of reading Section 9. Is the President’s “constitutional authority” supposed to be the authority that the Supreme Court has recognized absent statutory regulation, as in the Keith case? Or is the President’s constitutional authority the authority that the Administration believes it has even if Congress tries to regulate the Executive Branch? Under the first reading, which is the one that I was assuming to be the case, Congress is moving from Youngstown category III to category II. Under the second reading, we’re still in Category III, but Congress is explicitly allowing for the possibility that FISA as enacted in 1978 was partially unconstitutional.  I think the former reading makes more sense, as a) Congress doesn’t normally have a section pointing out that its law is not intended to be unconstitutional, and b) the existing exclusivity language that is being deleted was the reason that FISA has been understood to bring us to Youngstown III (subject to the possible AUMF claim).  But it’s worth pointing out that another reading is possible.