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
Senator Arlen Specter is a careful lawyer who has been one of the few Republicans willing to take on the President when he sees an executive branch power-grab.
That's why I was so disappointed to read his legislation on the NSA program. Not only does it fail to force the President to comply with the law, but it actually authorizes the President to make an end-run around FISA and gives him a blank check to conduct warrantless spying on Americans.
The Bush Administration has refused to brief Senator Specter on the details of the NSA program. As a result, he's legislating in the dark.
Had he been briefed -- as I have been -- he would understand that the surveillance the President wants to conduct can be done completely under the current FISA system. If the President needs more resources -- staff, computers, etc. -- to process warrants more efficiently, Congress should provide those resources.
The Specter bill contains two provisions which, in effect, repeal FISA outright.
The first provision says that the FISA Court can issue an order authorizing the President to conduct a surveillance program targeting communications with terror suspects. This provision would repeal the requirement under FISA that the government get individualized warrants each time the government wants to listen to Americans' conversations or read their emails.
The Fourth Amendment states: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The key words here are "particularly describing." The hallmark of the Fourth Amendment is particularized suspicion -- the notion that the government can't just go on a fishing expedition. There must be some clear reason to believe that the target of the search is doing something to warrant the surveillance. A general search warrant is unconstitutional. SeeStanford v. Texas, 379 U.S. 476 (1965).
As if that's not enough, the Specter bill also contains the following startling provision: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." This provision endorses the Cheney-Addington vision of Executive Power -- that they have "all the authority they need" under Article II.
There are some positive aspects to the bill. As a conceptual matter, I agree that inviting a Court to review the President's actions is better than no Court review at all.
Also, section 10 of the bill contains some thoughtful revisions to the definition of "electronic surveillance."
But the Supreme Court, in both Hamdan and Hamdi, made clear that the President cannot have a "blank check," even in war-time.
Next Wednesday, the House Intelligence Committee is holding a public hearing on various legislative proposals on the NSA program. I suspect that as the public absorbs the discussion, Senator Specter's bill will be dismissed as a non-starter. Posted
by Guest Blogger [link]
Knowing that Rep. Harman and her staff are acquainted with this blog, and the legal analysis on it, is quite honestly the best news that I've heard all week.
I hope that her staff will spread the word to other staffers in both the House and the Senate.
An additional question about the Specter bill concerns the newly-added definition of “Surveillance device.” As far as I can tell, there is no definition of this term in FISA as it exists now. But in the Specter bill there is a proposed definition: “(l) ‘Surveillance device’ means any means a device that effects surveillance but does not include a device that extracts or analyzes information from data that have already been acquired by the U.S. government by lawful means.” See Section 10.
All this definition really does is say that a “surveillance device” is any device that can be used for surveillance (which is basically how the law reads now), EXCEPT for devices that “analyze information from data that have already been acquired by the U.S. government by lawful means.” So all this definition does is subtract certain types of devices from the term “surveillance device” as it is used in FISA.
What’s the significance of this? Well, as we all know, we don’t really know what the extent of any of these eavesdropping programs really are. But there has been speculation that there are multiple programs, at least one of which may or may not involve the government’s buying vast databases of data from phone companies and analyzing that data on its own. Such databases, purchased as they are in commercial transactions, would presumably be “data that have already been acquired by the U.S. government by lawful means.” In addition to the other things that have been pointed out about Specter’s bill, then, it would also seem to give explicit legal protection to the government’s continuing to buy these databases and search them for whatever info it wants, if that’s in fact what it’s been doing. Or, alternatively, to just start doing it.
Believe me, I’d really love to be corrected here and told I’m reading this wrong -- it’s all a bit opaque, and it’s possible I don’t have this straight. But that’s what I think this says.
I think it speaks well for both Rep. Harman and for Balkinization that she has been willing to submit this excellent posting.
I note one additional peculiarity of the bill, contained within her posting. Yes, the Specter bill apparently authorizes programmatic review by "a court," but that in itself is one of the extraordinary features of the legislation. The "a court" is presumably the FISA court. Although every member is an Article III judge confirmed by the Senate, the actual members of the Court are hand-picked by the Chief Justice, with no oversight whatsoever, whether from Congress or even his fellow justices. (University of Pennsylvania law professor Ted Ruger has written an excellent article on this rather extraordinary power of the Chief Justice.) To put it mildly, there is no reason to believe that the late Chief Justice Rehnquist or, now, Chief Justice Roberts looks to strong civil libertarians as potential members (though Ruger found less demonstrable conservative tilt in those appointed than he initially expected). Aside from this peculiarity of the appointment process, though, "a court" seemingly need not even issue a public opinion, nor, even more to the point, is there seemingly any procedure for review by the Supreme Court.
This is a truly terrible bill that moves toward the possibility of secret opinions--conducted under God knows what kind of "adversarial" presentation of argument--without the possibility of review by the Court that in all other cases is at the top of the judicial hierarchy. Why? Does Arlen Specter not trust the members of the Supreme Court to be adequately discrete?
As Marty Lederman has suggested, the Washington Post headline writer who spoke of a "compromise" by the Whtie House literally has not understanding at all of what the bill really includes. The Specter Bill is more accurately described as a face-saving surrender to David Addington, even if he is unhappy that it is not an unconditional surrender. It will be a sad, sad day if other Democrats (not to mention a few classically conservative/libertarian Republicans) do not join Rep. Harmon in opposing this dreadful legislation.
Sandy: It's better -- or worse -- than that. As far as I can tell, the FISA "review" is neither required nor meaningful. (And that's even putting aside the point I made in my post that the substantive standards for review would be reduced to a point where a child would have trouble failing to meet them.)
It's not required because the AG need not go to the FISA court -- he can if he wants to do so, but need not.
It's not meaningful because it's not clear that anything would happen if the FISA court *denied* approval. The bill doesn't require cessation of the program even if there's such a denial, as best I can tell (although it's certainly possible I missed something).
All of which is to say that it's quite literally setting up advisory opinions, with no legal effect whatsoever. I think.
Who will have standing to challenge alleged violations of the LISTEN Act, and how will compliance by the executive be ensured given the virtual certainty of a presidential signing statement purporting to "interpret" its provisions, in accordance with essentially the opposite of everything LISTEN prescribes?
despite the late hour, I stopped by with the idea of asking if there was any mechanism by which the kind of legal analyses routinely published here - in particular, those re the specter bill - made their way to the influential. question answered!
as long as we're parsing the wording, looking for the worst - is there anything to be read into "with respect to" in the paragraph endorsing the addington/yoo approach to art II powers? having a lay interest in the estab clause, I'm sensitive to how troublesome that particular word has been there and wonder if it was used here specifically for it's vagueness. probably paranoia, but that's what the last 5 1/2 years have bred.
This is the first time I see somebody from Congress who was briefed on what the NSA is doing to state publicly that there never was any need for Bush Administration to bypass the FISC. Given the standards of that court I suspected that all along but it is nice to see it confirmed by somebody in the know. BTW an excellent post by Rep. Hartman both substantively, tone and presentation wise. We don't see that level of professionalism often these days especially from politicians.
The Signal Intelligence subcommittee chair Heather Wilson has a post on her website summarizing in a few hundred words the bill she intends to introduce July 18, next Tuesday, here.
It is reassuring that the House is encouraging the Senate to look at the far reach Specter's proposed FISA bill in the senate adds. ML, and Sandy have helped clarify some of the misleading headlines in the media, even including some wayward impressions in NYT. Fortunately, ML's writing has sent me back to the opinions in the Hamdan ruling. Clearly congress still has the right to shape these processes. Welcome, Rep. Harman; and appreciation to this site's acomplished designers.