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
It's here. Glenn Greenwald has the goods. I don't have much to add to his thorough summary. (If I see something else important in the bill on a closer read over the weekend, I'll post about it here.) Basically, instead of doing something -- anything! -- to address the Administration's rampant violations of law, or even to carefully amend FISA to provide necessary additional surveillance authorities to the President, this bill would reward the President for his lawlessness by authorizing, in almost every detail, the complete circumvention of FISA that characterizes the secret NSA program. (Perhaps FISA should be amended -- I don't know enough about the details to have any firm opinion on that, except to note the serious Fourth Amendment concerns, and to suggest that such a fundamental amendment should be preceded by serious study by a legislature that has some idea of exactly what it's authorizing. But even so, surely Congress should also do something to address the serious harm to constitutional checks and balances.)
The bill would impose certain reporting requirements, prescribing that the Executive submit certain information to new congressional Terrorist Surveillance Subcommittees. They'd appear to be fairly toothless, however. The Washington Post reported today that "[t]he Bush administration could continue its policy of spying on targeted Americans without obtaining warrants, but only if it justifies the action to a small group of lawmakers," and that after 45 days of surveillance, the Administration would be required either to obtain an order from the FISA Court to to "convince a handful of House and Senate members that although there is insufficient evidence for a warrant, continued surveillance 'is necessary to protect the United States.'" As Glenn notes, this is almost certainly wrong: The Administration would not be required to justify its program to the legislators, nor to "convince" them of anything. And the Subcommittees could not, of course, do anthing to stop the program, short of persuading Congress to enact a veto-proof amendment to this law. (Indeed, if the bill required a sign-off by the Subcommittees, it would likely be unconstitutional.) Posted
by Marty Lederman [link]
Stopping or amending this dangerous legislation is the substantive part of the fight in the Senate right now. The debate of Feingold's non-binding censure resolution is a symbolic means to that end.
I hope those who are rightfully aghast at the content of the White House / DeWine bill can see that the alternative presented by Sen. Specter -- widely rejected in liberal quarters -- is fundamentally superior because it compels judicial review. By contrast, the DeWine bill reads the courts out of the process almost entirely.
Many critics of the NSA surveillance, including me, have argued all along that the President should have sought augmented authority from Congress after 9/11 if FISA was deemed too restrictive. In fact, the plain language of FISA contemplated such amendments in wartime.
Thus, I think it is quite appropriate as a policy issue for Congress now to debate where we should to draw the line in balancing civil liberties vs. security in the so-called war on terror. I have expected such a debate, and also have hoped it would embody a bright line to prevent further legal abuses by the executive. Structurally, that is what Specter's approach does.
Although I was chagrined at the scope of the new surveillance Specter's draft would authorize, that scope is debatable. I would try to narrow that definition, but adopt his structural approach to compulsory judicial review.
Taking the policy position that no expanded authority is acceptable seems a non-starter, either on the merits or in the political arena. Where to draw the line is a question that is appropriate for the legislature to decide, and appropriate for all of us to debate.
But what is most critical is the retention and expansion of judicial review in the process. The entire strategy of the Bush administration has been to avoid the courts at all costs, and White House lobbying now has isolated Specter as the only remaining GOP moderate who is interested in a meaningful check on the President. Democrats simply do not have the votes to do this on their own, and it is critical that something be done.