an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Kris Testimony on NSA Surveillance and Possible Amendments to FISA
Several weeks ago, I blogged about a superlative statutory analysis of the NSA surveillance program written by David Kris, who had been the Associate Deputy Attorney General in charge of national security issues from 2000 to 2003. Kris is currently testifying before the Senate Judiciary Committee on the same issues. The first portion of his testimony recapitulates his analysis of the legality of the NSA program. Although I don't necessarily agree with all of the details of Kris’s testimony (in particular, certain aspects of his Article II analysis), his statutory analysis is indispensable. Kris concludes that "I do not believe the statutory law will bear the government's weight. It is very hard to read the AUMF as authorizing 'electronic surveillance' in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA's exclusivity provision. And the AUMF suffers further in light of FISA's express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think that Congress can be said to have authorized the NSA surveillance."
Unfortunately, the Department of Justice did not have the benefit of Kris's analysis while he worked in the Department, because Kris was not "read into" the NSA program, despite the fact that he was one of the highest-ranking, most respected Department attorneys on matters relating to FISA and national security.
The second portion of Kris's testimony is perhaps equally important. It consists of a very elaborate proposal on how FISA might be amended to permit the Administration to intercept communications involving Al Qaeda agents in cases where such interceptions might now be foreclosed under the FISA standards, in a manner that could satisfy Fourth Amendment concerns. Kris's proposed substantive standards are not nearly as open-ended as those in Senator Specter's bill, which would permit indiscriminate surveillance of any U.S. person who has ever communicated with an agent of a foreign power (i.e., virtually everyone). Kris's proposal also improves on the Specter proposal in several other respects, and candidly identifies the possible constitutional obstacles that such legislation would raise, including a serious Article III question about whether a court can pre-approve a surveillance "program" writ large, rather than (as under FISA) evaluating interceptions on a case-by-case individualized basis. I don't have time over the next few days to blog further about Kris's draft proposal. I welcome others' comments on it in the interim. Posted
by Marty Lederman [link]
My first impressions of the legislative language submitted by David Kris, compared to that of Specter's bill (S 2453)as introduced:
1) The Kris draft has the merit of allowing a much narrower range of surveillance under the new procedures.
2) The Kris draft has the defect of excluding Specter's mechanism that would compel the President to report all surveillance programs -- including those nobody knows about yet -- to the FISA court in a form that is actionable for judicial review.
I am interested in some synthesis of the two approaches.
Actually, melior, I know of no mechanism in FISA that compels disclosure to the FISA courts, at least not in an actionable form. Could you point me to the statutory requirement to which you refer?
It obviously is insufficient that the courts merely be notified -- "briefed into the program," in the current vernacular.
Such briefings have occurred, at least for the presiding FISC judges. But according to the Washington Post, the chief judges thought they had no power to act against the warrantless survelleince because of their limited jurisdiction, even though they doubted its legality.
Specter's bill would expand their jurisdiction, and require that such surveillance be reported in a form the FISC courts are required to approve/disapprove.