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
Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct [Specter cites the three courts of appeals decisions, pre-FISA, concerning the President's "inherent" power], FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist
If Senator Specter would only bookmark Balkinization, he would know that this is utter malarkey. Whether the President has the "inherent" authority to engage in such surveillance, as those courts of appeals held -- and as I would concede, at least as to some of the NSA program -- tells us absolutely nothing about whether a statute can constitutionally limit that authority, as FISA does. To be or not to be -- whether "the president's constitutional power exists or does not exist" -- is not the question.
At the end of his Op-Ed, Specter writes: "In my opinion, it is intolerable to let this matter drift indefinitely. If someone has a better idea for legislation that would resolve the program's legality or can negotiate a better compromise with the president, I will be glad to listen."
Here's a better idea: Let the Article III courts decide the lawsuits, currently pending, that raise the question. And if you're looking to get behind some effective legislation, Senator, how about throwing your support to the Schumer bill, which would strengthen the ability of plaintiffs in those cases to keep the cases alive against claims that they don't have standing? Posted
by Marty Lederman [link]
Who was it a few days back who wrote that Specter was smart & didn't need reminding about Youngstown?
I've felt sorry for Specter on occasion, but no more. I hope he's held up as a mockery of what a U.S. Senator should be. What a sad wreck of a man.
One possibility is that Specter is so obsessed with getting some judicial review of that NSA scandal that he is not longer capable of seeing that Cheney/Bush's price for agreeing to some nominal FISC review is a major gutting of almost everything Congress came up with in the last 30 years to protect American people from the kind of abuses that were rampant in pre-FISA days and setting a brand new legal regime where future NSA-like (or worse) spying programs can go on w/o any oversight.
There are other theories - Cheney(Bush): "the party and this presidency needs you Arlen, only you can pull it off, we normally would go with Roberts, DeWine, Hoekstra perhaps, but they have no credibility with that democratic, libertarian, media, pinko rabble out there, so only you will do. Specter: OK, I'll do it, but we will have to get smart if we want to win this one."
Regardless of which one is it, the sad truth is that his recent proposal and that amnesty spectacle of his only a few weeks ago leaves him with very little credibility. Sad.
The best course (to second others) is to leave things as they are, far from perfect, but let's hear from the courts first before we embark on anything.
And one more note to people here and on Greenwald. Do you realize how much grief you are causing Mr. Cheney and Mr. Specter?
The governing was so easy in the old days. If they wanted something, they wrote it and gave it to their people in Congress and media with exact instructions on how to spin it. There would be a perfunctory Committee hearing with their boys chairing (Roberts, etc) after which the floor vote was a sheer formality as nobody would even bother to read it.
Nowadays thanks to Gore and his internets, everybody and his uncle feels free to stick his nose where it doesn't belong. Even librarians read new bills now and pick them apart like that was their business or something. Not to mention sites like this. Or Greenwald's.
It is worth reminding everyone once again that, in addition to the third-party civil suits that might be helped by Schumer's bill about standing, there is another route to a test case under existing law.
There is every reason to believe that DOJ could have submitted a test case to the FISA court all along. The case would take the form of a warrant application supported by information from the prior warrantless surveillance Bush claims to be lawful. The court could approve or disapprove this application depending on its view of those legal claims.
(We know from reporting in the Washington Post that DOJ and the chief FISA judge followed a procedure deliberately designed to avoid presenting such cases. The judge reportedly warned DOJ that such applications could not be approved if the court had to consider them.)
Unlike the limited judicial review proposed by Specter, which really could only reach the Fourth Amendment issues, such review under existing law could actually test the arguments Bush makes for the program today -- including the AUMF argument and the argument that "inherent" power can override the statute.
The only thing preventing such a case is that it requires voluntary action by the administration (just like the Specter/Bush/Cheney bill does). But it is the administration that refuses to initiate such a case.
Interestingly, at last week's Judiciary Committee appearance by AG Gonzales, Sen. Feinstein -- based upon what she said was classified knowledge about the NSA program --- insisted that court review could be accomplished under existing law. Gonazales, under oath, waffled over whether this is true.
Gonzales said current law may not make clear that the FISA court has the authority to rule. If that is the case (which I doubt) Congress could simply pass general language reaffirming the court's obligation to consider the legality of evidence in warrant applications, and reject applications based on unlawful evidence.
Fundamentally, it is the Bush administration that stands in the way of full judicial review, and now favors the sham review contemplated by the Specter/Bush/Cheney bill instead.
Wasn't Arlen Specter the architect of the JFK "single bullet" theory? Now he's developed a novel theory for separation of powers and national security. Maybe he's brilliant in ways we mere mortals can't fathom; Then again, maybe not.
It's also proof positive that Senator Specter didn't read his own bill in entirety. The language from Justice Jackson's famous concurrence in Youngstown, which is all one needs to read to understand how Congressional action can limit inherent Presidential power, is quoted in full in Section 2(8) of the bill.
There was another FISA/NSA hearing a few days back. I checked it just to see what Sen. Specter had to say after the massive criticism of his "deal" with the administration.
Well there is no change. He still thinks this is the best he can do or get. (likely and sadly true)
Regarding the substance of criticism, Sen. Specter tried to offer some explanations. Unfortunately neither of them held any water.
A few specific examples:
a) the undisputed point is that his (Cheney's ?) bill removes FISA exclusivity and reverts things to the pre 1978 Hoover-like situation. Sen. Specter did not offer any explanation why that is necessary or even advisable.
At the hearing he claimed that a presidential prerogative to engage in warrantless spying on US persons can be read into some provisions of the original FISA and that he only made it explicit in his FISA rewrite. This, I'm sorry to say, is a gross misrepresentation of the original FISA.
b) he continues to claim that FISC of Review is the only court in the land that can be trusted with these cases because of its expertise with spying and its ability to protect government secrets.
Unfortunately there is nothing to support him here.
The three judges of the FISA Court of Review (FISCR) met only once in its entire history (30 years) to issue one single opinion. The current three judges (Portland, OR, one Washington, DC and third one who knows where) likely never sat together in the same room more than once. They spend all their working days as regular judges having nothing to do with FISA matters. Neither of them ever heard even one single government FISA warrant application in their entire judicial lives.
It's quite clear these judges had ZERO chance to develop ANY experience in FISA matters. Similarly their ability to protected government secrets remains equally entirely untested, for all we know they could leak as bad as Bush's White House.
Sen. Specter is grossly misrepresenting things here.
c) there is zero evidence that regular courts leak government secrets recklessly as insinuated by Sen. Specter. The fact is, most of them tend to bend over backward to protect the executive and its security agencies, often drastically disadvantaging defendants and plaintiffs alike.
d) forcing all NSA cases to go the FISCR is a blatant attempt to bypass regular courts so to facilitate their dismissal by a special court whose rules, as everybody aggress, make it impossible to handle cases fairly for the plaintiffs.
e) there is still no explanation from Specter why he wants the FISA court empowered to dismiss cases for ANY grounds. I hate to point it out to Sen. Specter but even totalitarian judicial systems never claimed such powers for their judges.