Balkinization  

Friday, July 14, 2006

Orin Kerr on the FISA Bill

JB

Orin Kerr agrees with my previous argument that section 801 (which is part of section 9 in the draft version) is the most problematic part of the new FISA bill, and essentially capitulates to the Article II on steroids theory:
On my first read, at least, it seems like this Section 9 is most important part of the Specter bill. Maybe I'm missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it belileves are unconstitutional because it infringes on the Commander-in-Chief power.

Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review.


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