July 13, 2006

What is this seeming compromise on the NSA surveillance program?

The NYT reports:
The White House has agreed to allow limited judicial review of the eavesdropping program run by the National Security Agency, Senator Arlen Specter, the chairman of the Senate Judiciary Committee, and a White House spokeswoman said today.

Mr. Specter, a Pennsylvania Republican who has sharply questioned the propriety of the program since it was disclosed several months ago, said the White House had agreed to a bill that provides for the highly secret Foreign Intelligence Surveillance Court to “consider the program as a whole and to make a decision on it.”...

A White House spokeswoman, Dana Perino, said today that a crucial factor in the agreement was that the bill “recognizes the president’s constitutional authority."...

Mr. Specter held a Capitol Hill news briefing after informing members of his committee about the agreement. He told panel members that the proposed bill would, among other things, demand that government investigators explain why they believe intercepted communications involve terrorism and create new penalties if officials misuse information....

Asked whether the review by the court would be continuing or a one-time affair, the senator said it would be the latter, unless the eavesdropping program is changed. “What we’re looking for is the existing program to be submitted to the F.I.S.A. Court on a one-time review; they make a decision, that’s it,” Mr. Specter said. He declined to speculate on whether the court would announce its decision.
I'd like to see more information on this, but based on this report, I can't tell what the court is being asked to do or who is supposed to have standing to bring the lawsuit the bill purports to authorize. A one-time review of the legality of the program? Who is suing whom in this lawsuit, and how does it avoid the problem encountered in Raines v. Byrd, where Congress tried to set up judicial review of the Line-Item Veto Act? Even if there is a concretely injured plaintiff to bring the lawsuit, what is the question the court is to answer? I thought the primary legal argument against the NSA program was that it didn't follow the letter of the statutory law. If the statutory law is changed to explicitly permit it, what is left? A Fourth Amendment argument? Does anyone think there is much to that?

"[T]he proposed bill would... demand that government investigators explain why they believe intercepted communications involve terrorism." In a one-time review? So the bill authorizes the program, but on condition the government proffer a good-enough explanation that it is indeed a method for tracking terrorists. Isn't that just a policy decision that Congress should be making right now as it passes a bill that authorizes the program? Please argue with me. I'm sure I'm missing something. But I'm just seeing a complete fizzle when this gets into the court.

10 comments:

MadisonMan said...

On the plus side, at least the Legislative Branch is trying to assert a little authority to curb the blatant power grabs of the Executive of the past several years. But just because Bush signs the bill -- if he ever gets it -- doesn't mean he won't add a signing statement saying he'll ignore it.

The one thing that troubles me in the story: the N.S.A. has monitored the phone calls and e-mail messages to and from Americans and others in the United States who the agency believes may be linked to terrorists. Where are the checks in that belief? They don't seem to rest solely in the Legistlative branch, 'cause there isn't consistent oversight.

Bruce Hayden said...

I do think that the best solution would be for Congress to just amend FISA to allow the present program to proceed. And, I don't think that Congressional oversight out would be inappropriate here - though because of security issues, I question the advisability of informing all of the two Intelligence Committees, but maybe the specifics to the chairs and co-chairs, and a summary to the members that didn't get into all the details (that may get leaked). I think that the PATRIOT Act might be a good template to start the Congressional oversight.

A one time judicial review might work to bring everyone up to speed, but courts just aren't appropriate here as an ongoing mechanism for review.

And I agree with your questions about standing, etc. That is one big problem right now with litigation - no one can really prove injury. A lot of hypotheticals, but the courts try to stay away from those. I just don't see a "case or controversy".

Bruce Hayden said...

I think that it is likely that the Administration has been straight up about whether it has limited its surveilance to those reasonably believed to be involved in or closely related to terrorism. Nevertheless, there are a lot of reasons to make sure of that, and that is where review would come in. Partly, this is because a lot of Americans are not as trusting of this Administration as I am, and partly, because even if this Administration is honest about who is being surveiled, there is no guarantees that the next one, or one after that, will be. After all, who would have thought that the Clinton White House would have pulled all those Republican FBI files for almost assuredly purely political reasons? There is room for abuse, and even if this Administration isn't abusing the system, that doesn't mean that it can't be, and that is why oversight is necessary.

Bruce Hayden said...

Hamden may be causing some second thoughts in the Administration. Marty Lederman sure thinks that the NSA surveilance programs are now obviously illegal in view of that case. But then, he thought they were illegal before that. Interesting discussion between him and Sunstein over at Balkanization, and discussion of that discussion at the VC.

I remain unconvinced, despite J. Thomas actually seeming to buy into the Youngstown Jackson concurrance's three levels of review. Hamden didn't overrule Hamdi, and neither one is really that close.

The big difference is that in Hamden, the Court could tell the Administration and Congress to come back with a better way of trying these guys. While they are at it, the potential defendants will just continue languishing at Gitmo, or be sent back home, to countries that are not as worried about Human Rights. Indeed, I expect that in the long run, a lot of them who can't be sent back to their native countries will be sent back to Afganistan for trial, which, now, after the country is relatively stabilized, would be fine with the Administration.

But the NSA surveilance program at issue has been, and presumably will continue to be, according to the Administration, an important weapon in the WoT and helping to prevent further 9/11 type attacks. You may not believe them, as a lot of people don't, but, still, nevertheless, George Bush was elected president to make this sort of decision. This just falls too clearly under his Article II powers for them to take it away from him during a time of war.

No, SCOTUS is not about to tell the Administration to shut the program down. Think of it this way, this is an operational decision, whereas Hamden was about procedural issues. Besides, SCOTUS is not about to take the chance of shutting down a program during a time of war where there are no known real injuries, but known benefits, when, by shutting it down, they might make the next 9/11 attack possible.

J said...

"I can't tell what the court is being asked to do or who is supposed to have standing to bring the lawsuit the bill purports to authorize"


The court is being asked to keep criticism of NSA program in the news as elections approach. The Republican party can't wait to have Democrats (and Spectre, of course) in the news screeching at the president for not getting a court order to intercept enemy communications.

JohnF said...

Does anyone have a copy of the bill? This is all sort of meaningless without knowing what the bill says.

And I agree with Ann that without knowing who the plaintiff is, assuming some administration entity is the defendant, the jurisdictional issue is, to say the least fuzzy. Case or controversy anyone?

Mark said...

Here's an explanation of the proposed law along with the links to the actual text.

http://glenngreenwald.blogspot.com/2006/07/specter-white-house-fisa-agreement.html

There are apparently different versions of the Specter bill; one of them applies retroactively to make the spying legal; the second one would only authorize the spying (with some oversight) from now on.

I am not sure that it answers Ann's question about the legal aspects of the court's one-time reviewing the legality of the program. Perhaps the explanation is that the bill is supposed to allow the modified program from today on, while leaving it up to the court to decide the legality of Bush's actions so far. At least that's my understanding assuming that the correct version of the bill does not retroactively make the program legal.

HaloJonesFan said...

What amazes me about this whole situation is that it really comes down to a simple question: Were the Congressional Intelligence Committees fully informed of the program?

If so...well, then hurrah, the system works, why all the argle-bargle?

If not...then get them informed post-haste, and let them approve (or deny) the program as they see fit.

The Drill SGT said...

Halo, I agree;

Madisonman, I think the issue in my mind is that your quote below, doesn't use the word BETWEEN.

The one thing that troubles me in the story: the N.S.A. has monitored the phone calls and e-mail messages to and from Americans and others in the United States who the agency believes may be linked to terrorists. Where are the checks in that belief? They don't seem to rest solely in the Legistlative branch, 'cause there isn't consistent oversight.

1. So it is really that we are monitoring foreign callers that are linked to terror, that call US numbers.

Good, monitor them.

2. I think good, but some may dispute it if we then monitor the outbound calls of those first US receivers when they next call overseas.

3. I think that many have an issue if we monitor internal US calls of people that have received a call from overseas who is connected in some way to the bad guys.

was that obtuse?

Sloanasaurus said...

Perhaps Spectre feels good about the program after his review and is willing to give a legislative rubber stamp to the White House. In this way, Bush can point to Congressional oversight without really changing the program.