Balkinization  

Thursday, July 13, 2006

The Specter Monstrosity

Marty Lederman

After the Hamdan decision, the Administration's legal defense of the NSA non-FISA-compliant domestic surveillance program is much weaker than ever -- and that's saying something.

And Senator Specter has been a vocal critic of the Administration on this issue, reaching his apex of pique when the Vice President snubbed him by trying to influence the Judiciary Committee without telling Specter -- even though at a Republican caucus Specter had "walked directly in front of [Cheney] on at least two occasions enroute from the buffet to my table."

So what does Specter do in the wake of the momentous Hamdan decision, which put all the cards in Congress's hands? He introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more. Indeed, come to think of it, the Specter bill is basically the sort of legislation one would expect if the Supreme Court had just held that Congress is powerless to enact legislation constraining the President's "inherent" war powers -- something that not a single Justice in Hamdan so much as suggested.

[NOTE to Washington Post: When the President takes a legislator to the cleaners, the proper headline is NOT "Bush Compromises On Spying Program." That's as if a newspaper were to use the headline "U.S. Shifts Policy on Geneva Conventions" to describe the case where the Administration (i) has, at best, merely announced its intent to abide by a Supreme Court holding (imagine that!); (ii) in fact has decided on business as usual; and (iii) has even plotted legislation to allow breaches of Geneva. Oh, wait. Never mind.]

The bill is difficult to follow, almost unreadable. I must confess that I've only given it a ten-minute once-over, which is probably more than it deserves. [Orin Kerr promises to take "a while to work through it." Keep your eyes on Orin's space for trustworthy, sober analysis.]

As best I can tell -- and I'd greatly appreciate corrections if, as is likely, I've missed or misunderstood something -- this is the "Specter National Security Surveillance Act" in a nutshell:

1. At least with respect to terrorism-based electronic surveillance, all of the limits Congress imposed on electronic surveillance in FISA are in effect repealed. The statute does not require the Executive branch to meet any statutory standard for terrorism-based surveillance, and eliminates the FISA provision that prescribes FISA and Title 18 as being the "exclusive means" of electronic surveillance, i.e., the provision that principally limits what the President can do. [UPDATE: Eric Umansky writes: "One other thing flagged by the [Washington Post] in the 28th paragraph [of its story]: 'Specter agreed to repeal a section of the original FISA law that made it the exclusive statute governing such intelligence programs.' . . . . [T]hat might have been worth mentioning, oh, say, 27 paragraphs higher."]

2. The FISA court would have jurisdiction to "authorize" a broad "electronic surveillance program," whatever that is. (A "program" apparently is a whole bunch of actual instances of surveillance, conveniently grouped together in a manner of the Atorney General's choosing, for faster "approval.") But nothing requires the AG to obtain any court approval before engaging in the electronic surveillance.

3. If for some reason the AG does, voluntarily, go to the FISA court for approval -- again, not that there would be any obstacle to surveillance if he did not obtain such approval -- the standard imposed by FISA for approval would be completely gutted.

Under FISA, a particular case of surveillance may be approved only upon a showing of probable cause to believe (i) that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).

There's nothing even remotely like that in the Specter bill. Under the Specter bill, the FISA court could approve an entire program of electronic surveilance -- presumably tens of thousands of cases -- merely upon a showing that the "program" is constitutional (as if the Fourth Amendment question can be evaluated on a "program"-wide basis by a court sitting ex parte) and that the program as a whole is "reasonably designed" to ensure that the intercepted communications are of or with (i) a foreign power engaged in or preparing for "terrorism activities"; (ii) an agent of such a foreign power; or (iii) "a person reasonably believed to have communication with or be associated with" such a foreign power or agent thereof."

In other words, the FISA court would have to "approve" the "program" -- all of it -- if the AG could show, e.g., that the program writ large is "reasonably designed" to ensure that one end of the the intercepted communications consists of persons who are "reasonably believed" to communicate with agents of a foreign terrorist power. (In other words, persons can be surveilled if they are three degrees of separation from the guys actually planning the terrorist activities -- or even further removed, as long as the "program" as a whole is "reasonably designed" to pick up folks you can connect to Al Qaeda in three notes.)

And the court would never have to make any part of its review -- including the outcome -- public.

4. But wait -- there's more! The Specter bill would delete the "exclusive means" provision of FISA and would replace it with the guarantee that "nothing in this Act [i.e. FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers."

In other words, to the extent any FISA limitations are left in place after this bill, never mind them -- because the President would be authorized to do whatever he could do under the Constitution if FISA did not exist!

5. Just in case any individuals were actually to challenge the legality of particular surveillance, the Specter bill would permit the AG to transfer all such cases to the FISA court if the AG swears under oath that our national security would be harmed by keeping the case in ordinary courts. In the FISA court proceedings, the court would not be able to require disclosure of any "national security information" to anyone. And get this: The FISA court and FISA Court of Review "may dismiss a challenge to the legality of an elctronic surveillance program for any reason." (Because it's Thursday? Or the judge doesn't like the looks of you? Can you imagine the conversation in the Vice President's Office on this one? "OK guys. We've eliminated FISA. Resurrected unlimited Executive power even after Hamdan. Made Specter's beloved 'FISA Court review' voluntary and pursuant to a standard that amounts to nothing. Shifted all litigation challenging our conduct to the FISA court, where all the evidence is off limits to the plaintiffs. Anyone else got anything they've been wanting? Come on, use your imagination . . . ." "Hey, I've got an idea!: Let's give the FISA courts the power to dismiss challenges to the Executive branch for any reason." "Yeah, that's the ticket!")

It is a mistake to characterize this "accord" as involving "a reversal of Bush's position that he would not submit his program to court review." The program already has been "submitted" by plaintiffs for review to several federal courts -- and the Bush Administration has little choice but to defend those lawsuits. If Senator Specter really wanted to improve the odds that a federal court will actually reach the merits of one of those cases, he'd line up his support behind the Schumer bill. What Specter's bill does, in contrast, is to drastically diminish, if not eliminate altogether, any court review of the program. It does not require Bush to "submit" anything anywhere, and it would basically be the death-knell for the challenges to the program that are currently ongoing.

I'm sure there's more (such as in the new and improved and diminished definition of "electronic surveillance" that triggers FISA in the first place). But that ought to give you a flavor. As far as I can tell, this bill would appear to give the President far more authority to wiretap U.S. persons than he has ever perviously had. Best I can tell, this is the gist of what the Washington Post calls the "compromise": On the one hand, Congress enacts a statute making it legal for the President to do everything that's been illegal for the past three decades. But on the other hand, Congress also empowers the FISA court, upon a request of the Attorney General, to confirm that what the President is doing is now, in this post-FISA world, legal. [Just noticed when I posted: Jack was ahead of me. He has even more details.]

I hope that a bill such as this, which would thoroughly unravel three decades of carefully crafted statutory regulation of electronic surveillance, is a non-starter in Congress. If so, please allow me this opportunity to make another plea: Everyone behind the Schumer bill, please! Let's get the question of NSA legality before the Supreme Court right now, and after that we can worry about how to amend FISA in a responsible manner sensitive to changing needs, such as perhaps along the lines of the models suggested by David Kris or in Jane Harman's bill.

With this giveaway bill, and the DOJ letter defending the NSA program in the teeth of Hamdan, and the Administration's proposal to have Congress codify the President's military commissions, and the Administration's proposal to authorize Cold Cell and Long Time Standing and other conduct that will result in a breach of the Geneva Conventions, and Jim Haynes getting one step closer to a lifetime judgeship, and with a compliant Congress not really understanding what gift they've been given in Hamdan (predicted headline in the near future: "Flush with Success in Court, Congress Capitulates.") . . .

Well, we've rarely if ever seen a week with more, and more audacious, moves in the direction of Executive prerogative. Which naturally brings to mind this question:

Can you imagine what the Administration would have done this week if they had won Hamdan? (shudder to think)

Comments:

I want to cry. I'm not exaggerating.
 

The administration would have won Hamdan if they could have got one more judge on the bench. As it was, it was a 5-4 decision. Not exactly overwhelming.

I'm glad to see the WH is showing some stones on this NSA thing.

I have a feeling the Gitmo killers will just be hung out to dry and kept locked up like they have been until the composition of the SCOTUS changes at which point, Hamdan will be reversed.

I want to pop the champagne corks. I'm not exaggerating, either.
 

"Take my civil liberties, I wasn't using them anyway," right, Ms. Weddington? The one satisfying thing about this would be seeing you bitterly wishing someday you had them back. One other thing: which ones at Gitmo are killers, and how exactly do you know that?
 

The issues that have been talked about on this blog the last couple of weeks seem to go beyond Civil Liberties to what underlies the possibility of Civil Liberties in the first place: the power to act in defense of them. If we do not have a diverse set of institutions with diverse interests that provide different factions of people, individuals, coroporations, and governmental instituions challegning one another sufficiently, we do not have the political impasse this creates which makes it necessary for people to make truth claims and engage in serious reason giving in order to win support from others who could tip the balance. Instead, it all becomes a game about matching tyrrany majority with various incarnations of oligarchic authority. If there is no space for truth claims, we are reduced to making things true politically simply because one side has more power than another does. Ms. Weddington seems to infer that might makes truth is the natural state of affairs as it is, but I happen to believe when we cannot exchange truth claims and reasons with one another to at least make a real political difference, then we are lost. And in this case, the Specter Bill is saying that the President does not have to give reasons to the American public for doing pretty powerful things they are allegedly doing on our behalf.
 

So Sarah, Supreme Court decisions that go off 5-4 are underwhelming, eh? What's the import of underwhelming you -- that presidents of your party don't have to respect decisions that fail to whelm you? Or is it the corollary -- that presidents not of your party have to respect 5-4 decisions ... like Bush v. Gore ... that tickle your cynical bone?

Seriously, though, Sarah may be onto something ... akin to what Bush must have had in mind when he said in his signing statement that he would construe the McCain Amendment, not only in a manner consistent with his allegedly unbounded authority, but also in a manner consistent with the “constitutional limitations on the judicial power?” Except with George, the scores – 5 to 4, 9 to 0 – don’t matter at all. Hamdan, Shamdan, he’s going to do what he damn well pleases, and the games he plays in public – jerking Specter around, etc. – are window dressing.
 

Wow: 5-4?

The news reports I read said that the decision was 5-3. In this case, sarah, attempting to pack the court backfired, as the administration's latest sure vote was so sure, he had to recuse himself. I wonder if they thought of that when they installed him? It's possible that one more justice might have only got you a 4-3 loss.
 

I want to pop the champagne corks. I'm not exaggerating, either.

# posted by SarahWeddington : 1:14 AM


It looks like you'll be drinking alone, again. But my guess is you're used to that.

I'm not exaggerating, either.
 

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