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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Washington Post editorial page (which, as I understand it, is entirely distinct from its news desks), today publishes a powerful and well-written editorial that should resonate with readers of this and other blogs, but that will make Post readers wonder if they have in their hands the same paper that they were reading on Friday. It's entitled "Wiretap Surrender," and the Post means legislative, not executive, surrender: "This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power."
As an example of how, "after six years of White House dominance on the policies governing the war on terrorism, senators are suddenly feeling confident that they are gaining at least a say in such matters," the Post points to the Specter "deal":
"On Thursday, Specter won a promise from the White House that Bush would back his legislation placing the administration's warrantless domestic telephone and e-mail surveillance program under a secret court review process. Specter could move that legislation through his committee as early as Thursday.
'I don't want to talk about it in terms of [White House] concessions, because that suggests winners and losers,' Specter said yesterday. 'It's a big gain for constitutional government and a big gain for the country.'"
Senator Specter: You might want to avoid talking about it in terms of White House concessions because there weren't any. The legislation does not place the NSA program "under a secret court review process." It removes the program from the "process" it's currently in -- you know, litigation in federal court, where the courts will almost certainly declare the program lawless if they reach the merits -- and gives the President the option of seeking FISA court rubberstamping under a system in which all substantive restrictions are eliminated and the FISA court decision has no legal effect.
Thank you for your yeoman work on this issue. I have briefly skimmed the Specter bill and agree with your assessement that it eviscerates FISA and places the executive in a more powerful position than it was pre-FISA. A pithy summary: Before the Hamdan decision the Bush Adminsitration pretended that it had a blank check; if the Specter bill passes, the Administration will actuallly have a blank check, and it will be a blank check signed by Congress.
As for the text of the legislation, I barely got past the third whereas clause, the one in which it is suggested that the 9/11 attacks might have been prevented but for FISA. In support, the Specter bill cite the 9/11 Commission Report. Well, as one who has slogged through the entire 9/11 Commission Report this caught my eye. The implication in the Specter bill is flat wrong: What happened pre-9/11 was that, due to Executive branch incompetence and bungling, no application was ever made to the FISA Court. It hardly seems fair to blame the FISA Court for not issuing a warrant when the Executive never made an application for such a warrant. Let's just say that the Specter bill does not get off to a good start . . . and it's all downhill from there.
The bottom line is that it seems clear that Congress will capitulate and matters will be left to the Judiciary which, assuming it ever gets the chance to weigh in, will be judging matters on the basis of the Fourth Amendment. The famous Youngstown concurrence (and the recent Hamdan footnote 23) will be rendered irrelevant once Congress signs its name to the Executive's blank check.
This doesn't save the Specter legislation, and it's not meant to, but it should probably be pointed out that while it does "remove the program from the 'process' it's currently in -- you know, litigation in federal court, where the courts will almost certainly declare the program lawless if they reach the merits," the chances of the courts reaching the merits (and not being reversed for doing so) are near zero in the face of the "state secrets" claims the government is making.
Specter, doubtless, thinks his bill is the only chance the merits have of being reviewed.
Which is not to excuse the fact that the rest of his bill renders the review meaningless.
Per this Specter told Mr. Lichtblau of the NYT just yesterday that "he was surprised by the strong attacks on his proposal" , and complained that:
“I can understand if they’d like more, but this is an important step ... “I want to know whether the program is unconstitutional. The question is whether you’re going to have some sort of court review or nothing.”
Dear Sen. Specter,
We know (or rather hope) you mean well but to get one lousy court review of what you (and many others, including us) think is an illegal "program" you don't have to give away everything, lock, stock and constitutional congressional barrel.
Doing away with the entire carefully constructed FISA store as you do in your bill so that the three judges of the FISA Court of Review can provide you with what you know they will provide you with is simply an exceedingly lousy deal.
With serious repercussions for civil rights of many generations of Americans even after you are gone.
Just please use your considerable powers to get Mr. Schumer bill passed. This will get you your court review in a jiffy and in a far better court than what you propose in your own bill.
That's probably true, although I wonder whether the tolerances for state secrets might not be a bit higher (and the tolerance for the claim of privilege correspondingly lower) in a secret court, created precisely for the purpose of dealing with state secrets.
The point really is that it wouldn't surprise me if Specter were able to make a convincing argument that there simply will never be a review of the program on its merits, save by agreement of the "administration," and that he's the only one who has even arguably extracted that agreement.
Now, the most charitable possible reading of the situation is that he's being lied to. I'm just considering the possibility that he's foolish enough to believe it.