Why The Specter Bill Won't Let Courts Decide the Legality of the NSA Program

Anonymous

Specter's bill is designed to ensure that the program as a whole will be reviewed by the FISA Court for compliance with the Fourth Amendment. It does so by providing that the program may be submitted, in toto and in secret, to the FISA court for review. Since the statute essentially gives statutory sanction to such a program, it would remove the separation of powers issues raised by the Administration's present disregard of FISA. But just because Congress says the President can do something, doesn't mean it's constitutional. So Specter claims to want to make sure that an Article III court -- here, the FISA Court -- concludes that such a program comports with the Fourth Amendment. But can an Article III court issue a judgment about whether a broad-based program is lawful in the manner that Specter wants?

Presumably, Specter thinks that the FISA court's review of the program as a whole is just like its review of a typical wiretapping application. Article III courts can grant warrants that identify a particular target probably because of the notion that such applications satisfy the Article III requirements of concreteness -- there's a specific case at issue -- and adversariness -- there is an identifiable target of either the search or the investigation. To be sure, there is no actual party contesting the application in such cases because the proceeding is ex parte. But there is no general Article III bar to ex parte proceedings. When we turn to Specter's scheme, however, things are very different. Specter's bill would authorize the Article III FISA Court to review the entire program of surveillance. By definition, then, there would be no identifiable targets at the time judicial approval is sought -- other than, presumably, any persons potentially covered by the terms of the Authorization of to Use Military Force. That means there would be neither concreteness nor adversariness. And so, what Specter's bill does is ask the FISA Court to do the classic thing that no Article III court can do: issue an advisory opinion.

So what's likely to happen if Specter's bill becomes law: the statute will have authorized the program on the expectation of FISA Court review of it for constitutional compliance. But the FISA Court, upon being handed over the program by the Administration, would likely rule that it has no Article III jurisdiction to pass on the legality of a general program of that kind. And thus the consequence of the Specter bill will be to have authorized a program that will never have been judicially sanctioned -- the very opposite of the outcome that Specter claims to be attempting achieve.

Any way out of this mess? Aside from junking the Specter bill altogether, which has its own appeal, Specter's bill should at least make its authorization provisions contingent on the FISA Court determining that it has the Article III jurisdiction to review the program's legality.