Specter Bill Released
The text of the Specter bill on the NSA eavesdropping program is now available here, and a summary here, both via Marty Lederman. In a post yesterday I analyzed the outlines of the proposal based on news accounts; now that actual legislative language is available I see that it is much, much worse than I had thought. While not a model of draftsmanship, the bill is clearly enough more of a capitulation than a compromise.
Most troubling is a provision that the news accounts did not really emphasize. Section 9 of the bill (which creates a new Section 801 of FISA) purports to be a “clarification” of the President’s authority in this area. It reads to me more like a ratification of the Administration’s sweeping theory of inherent Article II powers. Orin Kerr has a thoughtful analysis of this point on his blog, and reaches much the same conclusion (though his opinion about the theory itself is more ambivalent):
Interestingly, the Section is a “clarification” only if you assume the correctness of the President’s more controversial claims to Article II authority. If you accept the more traditional understanding of the separation-of-powers seen recently in the Supreme Court’s decision in Hamdan v. Rumsfeld and Justice Kennedy’s concurrence in that case, then this “clarification” is actually a major reorientation of the role of Congress in foreign intelligence monitoring away from the 1978 framework of FISA.
Jack Balkin posts his reaction and also agrees, in much stronger words:
[Section 801] 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 This restores the very language that was repealed when FISA was created to constrain and channel the President’s powers.
[snip]
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!
As to the other points I made yesterday, the bill text is not reassuring. As I suspected, the FISA court would consider the program ex parte and in secret. Further undermining an adversarial procedure, if the FISA court rules against the Attorney General, the government can re-file the rejected application repeatedly, but approval of the program is effectively permanent.
The provision transferring other litigation about electronic surveillance to the FISA court is extremely broad. Section 4 of the bill adds language to FISA (in section 702(b) of the statute) authorizing transfer of:
any case before any court challenging the legality of classified communications intelligence activity relating to a foreign threat … or in which the legality of any such activity or program is in issue.
The Attorney General simply decrees in an affidavit that litigating the case would “harm the national security of the United States” and the transfer is mandatory. If that provision becomes law, then it’s bye-bye, EFF lawsuit (and any other meaningful adjudication of the legality of the NSA’s activities). Steve Vladeck on Prawsblawg thinks this sweeping language extends even to criminal cases.
On the issue of appealability, at least, the Specter bill is slightly better than I’d feared. It specifically authorizes certiorari review by the Supreme Court. But that’s cold comfort if the initial review is as truncated as I would expect from the FISA court.
All in all, as I said yesterday, the bill is worse than the status quo, which is hardly my idea of a reasonable compromise. Yet, as Dan Solove points out, that is just the idea you get from news accounts of the legislation. We will have to see whether the “day two” stories highlight any of these concerns.
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