The Reward for Lawbreaking Act of 2006

Marty Lederman

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 9:03 AM by Marty Lederman [link]