The text of the Specter bill to amend FISA to allow the NSA surveillance programs has been morphing over the last few days. I have posted the latest version here.
Comparing this newer draft to the draft circulated at the time Specter’s “compromise” was announced (posted at balkination.com), I notice two differences in Subsection 4(b) dealing with the transfer of civil challenges to the Foreign Intelligence Surveillance Court of Review.
First, the entire paragraph that had defined the details of the court’s jurisdiction in such cases was cut. It used to read:
(2) PROCEDURES FOR REVIEW.—The Foreign Intelligence Surveillance Court of Review shall have jurisdiction as appropriate to determine standing and the legality of the communications intelligence activity or program to the extent necessary for resolution of the underlying case. All proceedings under this paragraph shall be conducted subject to the procedures of section 106(f), except that the Foreign Intelligence Surveillance Court of Review shall not require the disclosure of national security information to any person without the approval of the Director of National Intelligence or the Attorney General, unless in the context of a criminal proceeding disclosure would be constitutionally required.
The new version has no such paragraph.
Second, the older version used to say such civil challenges could be dismissed “for any reason.” The new version says they could be dismissed “for any reason provided for under law.”
The language of the older version on the latter point had occasioned criticism.
BTW, I notice that this bill remains on the agenda for the Judiciary Committee’s business meeting tomorrow. That does not necessarily mean the committee will act on it.
The committee held a hearing today with high-ranking administration witnesses supporting the bill, most of which I was unable to watch. I did see the public witnesses — two pro and two con. The latter, representing public-interest groups, said they would prefer no legislation at all to Specter’s compromise.
Just an Observer:
The second point seems like a non-issue. I think they always meant “any reason under law” and that in the original draft it was implied rather than fully articulated. They could not dismiss a case for reasons not provided for by law–therefore, I think they meant any reason = any reason under law. But, based on arguments against the language, they simply added four words in order to clear up any confusion. Unless one were to believe that the original draft would have allowed the court to dismiss cases for reasons no defined by law?
Similarly I think the first point is a non-issue as well. Unless my understanding of FISA, FISC, and FISCR is incorrect (which it very well might be), I do not think this paragraph was necessary. Isn’t the FISC the court of initial jurisdiction for all FISA warrants? Doesn’t any appeal of such a warrant denial go directly to the FISCR? Thus, it’d seem if the government lost in the FISC, they would, if they wished to continue the program, appeal the decision– the only court have jurisdiction would be FISCR (with the Supreme Court having final say).
A decision from the FISC cannot be appealed to any court but for the FISCR; therefore, there is no reason to stipulate that in the bill.
I think it was removed in order to finalize the draft–someone realized this was already a matter of law and that there was no reason to repeat it.
I think you have the correct understanding of the appeals process for warrant applications, as well as appeals of the new “program” applications, submitted by the government under Specter’s bill.
But this subsection deals particularly with the third-party civil challenges that would be transferred from the District Courts. The FISC court has no role at all there.
Perhaps the problem is that the FISCR does not actually have jurisdiction. I’m not sure I understand 4(b)(1)– it states that if a case concerns classified communications and the AG submits a brief, under oath, stating that the matter concerns national security, the court is directed to transfer it to the FISCR.
First, I’m not sure I understand this correctly; is there any other case where if the AG says something under oath a case can change not only geographic jurisdiction, but also to a different class of courts? There is no determination to be made by the court; if it concerns the matter, the court is to take the AG at his word?
Second, this doesn’t direct the case to the FISC, it directs it to the FISCR–a court which, I thought was a court of review–not a court of original jurisdiction. How does a court with primarily review jurisdiction gain authority to determine cases on first instance? I understand this statute dictates it as such; but can a court, other than the Supreme Court, as dictated in the Constitution, have original and review jurisdiction? Does Article 3 Section 2, Clause 2 allow the congress to create such a court?
Third, I’m not sure I follow how the FISC/R can be used in this manner at all–the FISC is primarily a warrant authorizor and the FISCR is provided review jurisdiction. The courts are non-adversarial. How does the FISCR gain authority to determine the Constitutionality of a program if it is conducted in a non-adversarial manner? I understand that the court may, as it did with In Re Sealed, appoint a group to provide amicus briefs–however, in a case testing the Constitutionality of a program, originally brought to a traditional court, where there are two parties (the government, and whoever brings suit) relegating that party to amicus–whilst allowing the government to make a case seems a bit less than legit. What would be the standard for this court to base its decision? The Court is made to act as a judge would in an inquisitorial system– a role assigned no other U.S. Judge. Yet in this situation, the government may provide a full argument, and must do so only above the arguments included in an amicus brief.
It hasn’t received much attention from legal commenters, AFAIK, but Specter’s bill includes a major section (Section 9), that would perform surgery on the scope of FISA itself — what would remain if the President chose to use it.
It is useful analytically to consider these practical proposals separately from the rest of the bill. As far as I can tell they theoretically could be enacted on their own, without being bundled with the overarching provisions negotiated by Specter and the White House regarding inherent executive power, etc.
There are several provisions that would alter FISA procedures. Perhaps the most significant is the fundamental rewrite of the act’s definition of “electronic surveillance.” The existing statute is very definition-driven, and this change can have far-reaching and interesting implications. It received a lot of attention this week from Gen. Hayden of CIA, Gen. Alexander of NSA, and OLC chief Steve Bradbury when they testified before the Senate Judiciary Committee.
I confess that I am not 100 percent certain of the effects of this change, since like most of us I don’t know exactly what NSA does, and there could be some gotchas hidden in the details. But from the public discussion by the administration witnesses, they openly say their intent is to eliminate the current law’s provision that any intercepts occurring within the United States automatically fall under FISA’s scope.
The intent, they assert, is to restore the underlying intent of FISA when it was passed in 1978. It deliberately gave NSA a relatively free hand when intercepts occur outside the United States. That effectively included anything intercepted off-the-air, and most long-distance and international traffic then was carried by satellite or microwave. Now, most long-haul traffic is on fiber-optic networks which happen to pass fortuitously through the United States, and NSA wants to tap the networks here without violating FISA. NSA especially wants to tap foreign-to-foreign communications that are considered a windfall for intelligence.
The remaining definitions also eliminate the current law’s distinctions between surveillance by radio, wire or network intercepts, microphones or any other device. All surveillance is essentially lumped together, regardless of medium or mode of intercept.
The focus of the definitions, which describe the scope of what the FISA procedures would still cover, is on who and where the target of the intercept is. So — like under existing law — FISA would not be triggered if the target is outside the country, even if the other end of the communication is within the country. Only if the targeted person is here would FISA apply. It would not matter where the intercept occurs.
The intelligence directors at the hearing seemed remarkably open in describing the practical effects of this change. Hayden and Alexander said the overwhelming majority of the calls they are interested in capturing have a foreign target, but under FISA’s current definitions these intercepts would require warrants simply because the intercepts occur within the country. If that trigger were eliminated, they said, it would be more feasible to seek conventional FISA warrants for the minority of calls where the target is inside the country. (Although they insisted FISA procedures would still be a burden, they would not be as big a burden.)
As a policy proposal, I find this interesting. Unfortunately the policy questions are completely overshadowed by the more far-reaching separation-of-powers issues in Section 8.
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