Balkinization  

Friday, July 14, 2006

Specter Gives Up the Game-- The Sham NSA Bill

JB

Senator Specter has reached agreement with the White House on a bill that would amend FISA and allow judicial review of the Administration's domestic surveillance activities on a program by program basis. The text of the bill is here and a summary is here

Although the judicial review provision is worrisome, it is by no means the most troubling thing about this bill. Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.

But first, the details: The bill authorizes the FISA court to permit "electronic surveillance programs"-- the key point being that these involve domestic surveillance of U.S. citizens-- for periods up to 90 days, periods which are indefinitely renewable. Authorization is on a program by program basis, rather than on the basis of the particular individuals who are being watched. All legal challenges to the surveillance program-- including challenges to the use of evidence in other prosecutions or litigation-- can be moved to the secret FISA court if the Attorney General states that national security demands it. The FISA court, in turn, has the power to dismiss a challenge to the legality of the program "for any reason." This provision seems puzzling: literally it says that the court can dismiss legal challenges to programs for any reason, whether good or bad, and even if the objections to the programs are well founded. In fact, the provision makes sense only if its purpose is to allow the FISA court to immunize Presidential surveillance from legal attack.

To obtain permission for an electronic surveillance program the Attorney General must declare in an affidavit that the program cannot be performed under existing FISA procedures and that the communications intercepted are communications of or with "(A) a foreign power that is engaged in international terrorism activities or in preparation therefore; (B) an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore; or (C) a person reasonably believed to have communication with or be associated with a foreign power that is engaged in international terrorism activities or in preparation therefore or an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore."

Note that under this test a U.S. citizen can be wiretapped even if he is not involved in terrorism as long as at some point he has been in communication with someone involved in terrorism, even if he or she does not know that the person was involved in these activities. Thus the Specter bill clearly allows electronic eavesdropping of citizens whom the Administration does not suspect of terrorism. And under the bill's terms, this surveillance is not limited only to conversations with persons whom the Administration does suspect of terrorism. As the bill is currently written, once a person has been "in communication with" a suspected agent of terrorism-- even for the most innocent reasons-- he or she is marked as a lawful target of surveillance. In order to prevent the obvious possibilities for abuse, the statute also requires that the Attorney General offer and implement what are called "minimization procedures." (These procedures are outlined in FISA at 18 U.S.C. section 1801(h)).

But that's not all. The new Bill amends section 102 of FISA to allow the President to engage in electronic surveillance without seeking a court order for up to a year as long the Attorney General is willing to state that all he is doing is intercepting communications by foreign powers or their agents. This changes the old FISA provision section 1811 that allowed warrantless surveillance for up to 15 days after a declaration of war. No declaration of war is necessary now, and the program can continue for a year instead of 15 days.

What is interesting-- and puzzling-- about these two provisions is that even though they are quite broad, they do not seem to be adequate to justify the existing NSA program, at least as it has been reported in the press. That program appears to have involved intercepting a wide swath of electronic communications, some with no overt connections to terrorism, which were then whittled down through analysis and data mining to produce a series of leads for future surveillance. What is mystifying about this bill, in short, is that even if it were passed, the NSA would immediately have to go beyond the authority it grants.

And that curious fact leads us directly to section 801, which, it turns out, is actually the most important part of the bill; the rest is mere camouflage. Section 801 offers nothing less than Congressional imprimatur for the President to go outside of FISA whenever he likes. For section 801 states that "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 restores the very language that was repealed when FISA was created to constrain and channel the President's powers. And if you look closely at the bill's proposed additions to section 109 of FISA, you will see that FISA would now prohibit electronic surveillance except as authorized by statute "or under the Constitution." Similarly, 18 U.S.C. 2511(2)(e) used to say that FISA was the exclusive means by which electronic surveillance was legally authorized. The Specter bill changes that to read that electronic surveillance is authorized "under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978." Get the idea? The President can always do an end run around any procedures that FISA offers as long as he claims inherent authority under Article II. If Specter's bill passes, all of FISA's limitations and procedural safeguards won't be worth the paper they are written on. Specter will have written the Administration's Article II on steroids theory into law!

In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of-- a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President's constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.


Comments:

If Prof Balkin's assertions are correct, I say Bravo to Arlen Specter.

First he gets Roberts and Alito on the SCOTUS.

Now he does this.

If he can confirm one more conservative, let's say a Frank Easterbrook, a Karen Williams or an Edith Jones when Stevens hopefully hangs up his robes, Specter will earn a place in the pantheon of American heroes.

All thta needs to happen is one more conservative on the SCOTUS for the decades of liberal domination to fall like the walls of Jericho.
 

Specter will have written the Administration's Article II on steroids theory into law!

Listen, chump. The Congress is about to do the same thing with Hamdan as well. Justice Stevens was appointed to the 7th Circuit by Richard Nixon.
 

Has anyone seen "Sarah Weddington"'s blog? It's like collected comments to Balkin's blog or something. Weird.

ANYWAY ... the silver lining to this Specter cave-in is, if it passes, the opposition party can run great commercials about how the Republican Congress covers up the President's lawbreaking.

Oh wait ... that would be the Democrats we're relying on there. Never mind.
 

I have a name to suggest for the bill: The Triumphant Yoo's Radical Authoritarian Necessities Trouncing Senators ("TYRANTS") Act.
 

Sarah the Goostepper shows up, right on schedule!

You really hate freedom, don't you, Sarah? Or do you figure that so long as you can be an intellectual courtesan to the ruling elite, you don't give a rat's buttock about freedom and democracy?
 

Those of us in Iraq are trained to preserve America. The New York Times and Demoncrats are trying their best to destroy America AND the Planet. They will DIE FIRST, in the end.
 

That was a comment for another post. Sorry!

On Spector's Bill, FASTER Please.
 

While it is obvious how the administration would view the issue, I find it difficult to get particularly upset about five or six different versions of "nothing in this bill modifies the Consititution" since it should be clear to anyone who took High School Social Studies that this is a true statement about any law Congress may pass. Nothing in the text actually states a theory of Constitutional power. No court would consider, even for a minute, that Congress can by law have much say in how Constitutional power might be interpreted. I cannot get all worked up about the conspiratorial nature of junk language that appears to have no actual legal meaning or effect, even if the administration might take it as an ambiguous endorsement of their peculiar theories.

Of course, this blog is associated with Law School faculty, so I am ready to be educated. Among all the "Constitituional Powers" crap inserted in the bill, please point out to me one thing that would not be instantly dismissed as meaningless noise by even the most conservative members of the Federal Bench.
 

Has anyone seen "Sarah Weddington"'s blog?

Has real Sarah Weddington seen what gets published under her name here?
 

Howard,

I won't presume to speak on behalf of our eminent hosts, but I think that the essential problem with §801 is that it effectively renders the rest of the statute--and by extension, perhaps, the entire FISA regime--a legal nullity.

So yes, courts retain the authority to declare an executive action taken under color of this law invalid as an exercise of Article II powers. But all statutory restrictions in this area will have been removed.

Specter claims to be exercising the Senate's constitutional prerogatives in this bill, he is in fact proposing to remove the Senate from the business of regulating the activities at issue.
 

For those who obsess about freedom while at war, perhaps you should move to the Nederlands where this is how freedon is treated;


The Dutch & Academic Freedom...Or Not
This is scary. The Brussels Journal is reporting that "university professors in the Netherlands are not allowed to voice 'unscientific' opinions that are too critical of Islam." A "large majority" of chancellors of Dutch universities agreed that academic freedom should be limited at the county's universities. Only two opposed the statement.

The crises was brought about when the Chancellor of Utrecth University censored Professor Pieter W. van der Horstofessor's valedictory lecture in which he wanted to argue that "the islamisation of European antisemitism is one of the most frightening developments of the past decades." The reason given for censoring the lecture:


the lecture was "unscientific" and "incited different population groups against each other."...and that "Islamic students might disrupt the lecture," in which case the university "would not be able to guarantee van der Horst's safety."


What is even more scary, is that at least some, if not much of Dutch society supports censoring academic freedom in order not to offend "certain" groups:


Though Chancellor Gispen was criticised for his interference by some conservative Dutch media, others backed him, declaring that in a multicultural society one should avoid antagonising certain groups. This is also the opinion of the majority of the Dutch university chancellors.


Though freedom of speech is not as broad in Europe as it is in the U.S., this is still a shocking position for any person to take, let alone academics in a liberal democracy. Further, the implication that only "certain" groups are protected from criticism is more then troubling. Make's one wonder which criteria is used for determining what constitutes a "certain" group. Perhaps the degree of protection from criticism increases in direct proportion to a group's disposition to engage in violent acts?

I invite everyone to read the Foundation for Individual Rights in Education's web site before shaking their head in a knowing manner while thinking "only in Europe." If you do, I think you will find that unfortunately many in the U.S. agree with the Dutch.
 

Howard:

The language in this bill is much more than just a "Nothing in this bill modifies the constitution" savings clause.

You have to keep in mind Justice Jackson's famous comment in his Youngstown concurrence. Its clear that the drafters of the bill had that comment in mind because it is quoted in the bill's Congressional findings. (Section 2(8).)

Justice Jackson's comment was this: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.... When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility....When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject."

So there are three categories: (1) Maximum authority - President acting on his inherent Constitutional authority and acting pursuant to Congressional authority; (2) Twilight Zone - President acting on his inherent Constitutional authority where Congress has not acted; and (3) Lowest Ebb - President acting on his inherent Constitutional authority in conflict with Congressional action. How the Courts review the legality of the President decision to act on his inherent Constitutional authority will depend on which of the three categories is involved.

What this bill does is bump things up one category for the President if he decides to act unilaterally. Absent the bill, if the President authorizes a spying program without complying with FISA then the President is in the "Lowest Ebb" category. If the bill passes, however, then the President will be in the "Twilight Zone" category if he decides to authorize spying without complying with FISA. That's the effect of the references to constitutional authority.

If this bill passes, the FISA will no longer be a limit on the President's authority to engage in spying. It will only provide an opportunity for him, if he choses to use it, to get Congressional sanction and move a spy program from the "Twilight Zone" to the "Maximum authority."
 

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