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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Has the Onion Infiltrated the Offices of Time Magazine?
This Time Magazine story about the Specter/Administration negotiations basically concedes that the Specter bill gives the President unlimited authority -- indeed, authority even greater than that he enjoyed in the mid-1970's, before FISA was enacted. (Why greater powers than pre-1978? Because under the Specter bill, the constitutional challenges that were common then, and that at least imposed modest limits on such wiretapping, could be transferred to the FISA court, with secret proceedings, strict confidentiality rules, and the power to dismiss such claims "for any reason.")
The story correctly states that the bill "limits presidential power in only narrow, almost symbolic ways [mainly, a requirement of "twice yearly" reports to the Intel Committees, which might not be any more onerous than the present requirements] — which is surely why Bush signed on for it." The article is even entitled "Why the Eavesdropping Deal May Have More Bark Than Bite."
But then it can't help adding the nonsensical subhead "The wiretapping deal is just the latest sign of how the White House is losing ground in the fight over wartime powers." And the lede?:
It was as much a sign of White House desperation as anything. In the final, face-to-face negotiations between President Bush and Pennsylvania Republican Senator Arlen Specter on Tuesday for oversight of Bush's controversial domestic eavesdropping program, the President made one final attempt to retain near-absolute wartime powers. The White House had argued throughout the months of staff-level negotiations that Bush needed explicit acknowledgement of his wartime powers in the Specter bill at the heart of the deal. Once again, Specter rejected it, as his staff had from the start — and Bush capitulated.
Hello? He didn't get "explicit acknowledgement" of his wartime powers. Instead, he got:
Repeal of the FISA provision limiting his wartime powers.
Repeal of the all-important FISA provision making the statute the "exclusive means" of electronic surveillance.
Re-insertion of a provision giving him constitutional authority to ignore any statutory limits.
Elimination of any substantive statutory restrictions.
A voluntary and powerless FISA court review.
Effective elimination of all private suits challenging the electronic surveillance.
Does that sound to you like "just the latest sign of how the ground is slipping out from under the White House"?
Maybe Time has a covenant that the brunt of the effort to squelch reportage of leaks will be borne by NYT, if only Time engages in copersuasion of the public along with the partisans in the majority party who developed the latest giveaway which Specter is promoting after his work these past three weeks since the Scotus decision in Hamdan. Specter's draft legislation as yet untitled, known currently only as S.2453. But, NY Times sets the record straight; my understanding is Specter's draft is both court stripping and an extension of the warrantless review process, basically giving the attorney general autocratic control of the entire secret court process as well as carte blanche to authorize yearlong wiretaps based on language that makes target profiling controls so vague that congress's oversight bodies would know even less than they have known in the past; this at a time when, in the lower chamber, Rep. Hoekstra has wailed this year that he has relied on the media for initial briefing in unbriefed programs. So, Specter in the upper chamber has signed onto a new bill to afford even more lax oversight. I am still studying the Conyers-Harman counterproposal draft.