JURIST Special Guest Columnist Shayana Kadidal, one of the lead attorneys on the Center for Constitutional Rights' challenge to the NSA domestic surveillance program, says that Senator Arlen Specter's "compromise" bill to bring such challenges within the jurisdiction of the secret Foreign Intelligence Surveillance Court is really no compromise at all…

With much fanfare in the New York Times and Washington Post, Arlen Specter announced late last week that he had negotiated a "compromise" bill [PDF] with the White House. Like the White House’s negotiations with Saddam Hussein, this was a one-sided conversation. This bill is not a compromise. It is a sell out, of both Congress and the American people, and Specter’s motivations for proposing it are utterly mystifying.

The bill covers a number of areas. First, it provides that challenges to the NSA program and programs like it will may be transferred by the government to a secret intelligence court, the Foreign Intelligence Surveillance Court of Review established under the 1978 Foreign Intelligence Surveillance Act (FISA). Second, it opens the door for courts to decide that the president has surveillance powers not specified by statute. Third, it allows the FISA courts to approve of not just individualized wiretap warrants but of whole programs of warrantless surveillance, expressly approves of new forms of warrantless surveillance, and waters down the criminal prohibitions on wiretapping in violation of FISA.

ALSO ON JURIST  Topic: Surveillance

Transfer of existing cases challenging the NSA Program

My colleagues and I at the Center for Constitutional Rights filed our challenge to the NSA domestic spying program in January, and the case will be fully briefed for resolution in a few weeks. Yet Specter’s deal would move our case into the secret Foreign Intelligence Surveillance Court of Review without any clear explanation for why such a move is in the public interest.

These transfer provisions amount to a desperate last-minute maneuver to avoid review by the federal judges already hearing these cases. These judges have already held oral arguments and made some preliminary rulings in several of the cases challenging domestic spying. Perhaps the Justice Department sees that the judges in these cases are ready to weigh the arguments on their merits, not blindly issue blank checks to executive authority. Senator Specter’s proposal basically allows “judge shopping”—the government will trade the existing judges, who have all shown hints of their skepticism of the broadest claims of presidential power, for a new set of friendlier judges (all named to their posts by William Rehnquist) in a court that ordinarily only hears arguments from one side (the government), and oversees a system that has approved all but 5 of 19,000 wiretapping applications presented to it. (This part of the “compromise” bill parallels the administration’s recent, last-minute attempt to transfer and consolidate our case with other, distinct cases against private telephone companies—the latest in a series of delaying tactics designed to hold off a decision that the Program is illegal before Congress can rubberstamp it.)

Weakening FISA’s assertion of Congressional control over wiretapping

The text of this proposed deal eliminates the restrictions Congress put on Presidential surveillance power in FISA, and attempts to delete the language that makes Congress’ wiretapping statutes — FISA and the 1968 Wiretap Act — the “exclusive means” for conducting surveillance. Senator Specter’s proposal would also expand surveillance powers, enabling the President to target anyone believed “to have communication with or be associated with” any organization “believed” to be preparing for terrorism, or any persons associated with them. That description includes more or less every attorney I work with at the Center for Constitutional Rights, according to the government’s claims about our clients.

The legislation also asserts that “nothing in this act shall be construed to limit the constitutional authority of the president” to conduct surveillance on foreign powers and their agents. Similar language existed in the original 1968 wiretap act before FISA was passed; it was intended to leave unresolved the question of whether the president has power to carry out surveillance without warrants under that act in furtherance of national security interests (as opposed to criminal investigations). The Supreme Court ruled in 1972 that the President did not have the power to carry out warrantless surveillance against domestic groups, and left unresolved the question of whether such power existed to eavesdrop on foreign powers.

When Congress passed FISA, it removed this “constitutional authority” language from the statute books, since FISA was intended precisely to regulate the president’s ability to carry out surveillance on foreign powers. Why would Congress now want to imply that the President might have “inherent” constitutional authority to conduct foreign intelligence gathering in a statute designed to limit just that power? Congress doesn’t usually say that its statutes apply only to the extent they aren’t unconstitutional; that much should be obvious. And the Constitution says nothing at all about surveillance powers; why muddy the waters this way?

I suppose one explanation might be that this language is an invitation to extremist pro-executive judges to rule that Congress really has no power to regulate Presidential wiretapping for national security purposes. (The much commented-upon language in the bill saying the court could dismiss challenges to the program “for any reason” may also be there to open the door for extreme readings.) Luckily, only one obscure lower federal court had ever even implied (in nonbinding dicta) that Congress might lack the constitutional authority to regulate foreign intelligence surveillance. Of course, that Court was the Foreign Intelligence Surveillance Court of Review, to which the Specter compromise would transfer our case challenging the NSA Program.

In some ways such language begs the Courts to tell Congress it has no power over such surveillance. This shouldn’t surprise us given the last h
alf-century of steadily-expanding executive power over war and national security. The founders wanted Congress to have and responsibly exercise important powers over war, foreign relations and national security. But unfortunately, individual congressional reps generally believe they have little to gain individually from exercising these constitutional prerogatives: they believe the public will credit the executive with any successes in foreign wars, diplomacy, or prevention of terrorist attacks, and that they as individual legislators can only reap blame when something goes wrong in those areas. Thus Congress has abdicated its war powers to the President over the years; this bill may mark a similar withdrawal from the field of surveillance as well.

If Specter’s bill is a general retreat from responsibility over wiretapping, the timing is astonishing, given that the Supreme Court just ruled (in Hamdan v. Rumsfeld, the watershed military tribunals case) that where Congress has legitimately legislated in a field where power is shared by both political branches, the President must obey. (Although the DOJ argued that this ruling meant nothing for the NSA program’s legality — an opinion Yale Law's Jack Balkin accurately characterized as the administration announcing its response to Hamdan would be to wait for John Paul Stevens to die — a bipartisan group of prominent constitutional law scholars and former government officials have spelled out the obvious [PDF]: that Hamdan confirms that the NSA program is illegal.)

Allowing the FISA court to approve of surveillance programs

Section 702 of Specter’s bill allows the FISA court to approve not just individual wiretap orders allowing surveillance of specified individuals, but also allows the court to approve whole “programs,” whatever that means. Much commentary in the blogosphere has speculated as to what Specter might have in mind with this. I think the clearest explanation is simply that he expects this provision will allow the secret FISA court to do the dirty work of legislating for Congress. The president will ask the court for approval of all sorts of wide-ranging surveillance experiments like the NSA Program, and the FISA judges will decide if such programs sound like they might “protect against international terrorism,” with no guidance from the branch of government the founders thought should be most responsive to the people and most responsible for setting long-term policy: Congress.

Since the Fourth Amendment demands warrants specify with “particularity” the objects of the search, such review of broad surveillance “programs” would have no relationship to the conventional warrant process. And since FISA Court orders are never routinely made public, this would be not just unelected judges legislating, but making secret legislation. And Congress will continue its long trend of avoiding responsibility for making any of the policy decisions about whether such executive practices are good for our democracy and our security—a trend interrupted only briefly by Watergate.

One well-hidden section of the bill comes close to gutting FISA entirely. Section 10(c) of the bill stealthily adds provision for warrantless wiretaps lasting up to a year intended to intercept the contents of calls where one party is an agent of a foreign power, so long as that agent is not a U.S. person. I say “stealthily” because it does so by modifying a provision (FISA § 1802(a)) that allowed for 90-day warrantless surveillance of communications between agents of foreign governments.

For good measure, the bill would also eliminate the criminal liability of the President and all his minions who ordered or participated in warrantless surveillance if they could convince a court that the surveillance fell within the inherent Presidential Constitutional power that the administration claims justifies the NSA Program.

Finally, the bill’s Congressional oversight provisions are even weaker than anything proposed to date: reporting to the Congressional intelligence committees must be made only once every six months. Whereas earlier bills could be characterized as Congress giving the president permission to break the law so long as it could watch (and calling that oversight), this bill decides that even the oversight is not so important. Let the President ask the FISA Court to decide the policy issues; just make sure you keep us posted twice a year.

The ultimate question: Why?

What could Specter’s motivation be here? I have, frankly, no idea. The introduction to most bills usually explains the perceived need that motivated its passage. In this bill, the legislative findings are most notable for repeating the lie that the FBI could not search 20th hijacker Zacarias Moussaoui’s computer because FISA stood in the way — a claim Senator Specter knows to be untrue.

Unlike the last bill [DOC] proposed by Specter (with Dianne Feinstein, on May 24th), which was very clearly focused on addressing specific complaints Alberto Gonzales and others voiced about the existing FISA scheme, this new bill seems motivated only by the administration’s determination to expand executive power. In contrast, the earlier Specter-Feinstein bill provided for more personnel to process wiretap applications under FISA: More NSA and FBI staffers and Justice Department lawyers to write the applications up, and more FISA judges (as needed) to process the applications. Whether or not it is warranted by current workloads, the Specter-Feinstein proposal would give the lie to the administration’s argument that it needed to go around the FISA court because it was simply too burdensome to fill out the vast number of individual wiretap applications required after 9/11. (The bill also mandated an official study of the efficiency of the application process, and development of an electronic system for classified document handling related to FISA applications, and allowed the Attorney General to tweak the application process by regulation, all of which should streamline the system and preempt any future President from arguing that the FISA court is just too slow to respond to a 9/11-style crisis. The new Specter bill doesn’t do any of that (although it does relieve the Attorney General of the supposedly-onerous requirement to personally approve emergency warrantless surveillance, and extends the retroactive warrant period for such emergencies from 72 hours to 7 days).)

The difference between the approaches in these two Specter bills illustrates a larger point: In the main, legal (and technological) short cuts don't stop terrorists. Good traditional law enforcement does. What we need is not less legal supervision but more flesh-and-blood agents doing a better job under more effective management. Profiling and other broad-brush measures like warrantless wiretapping may have some intuitive popular appeal but they have a historical track record of producing lousy results (as, apparently, does the NSA program).

Blaming the law is always a convenient shield for incompetent management to hide behind. After 9/11, an honest assessment by the FBI would have focused on bureaucratic management failures: that they failed to share intelligence with other agencies or devolve sufficient power to field offices. Instead, the loudest voices in the public debate were complaining that federal judges and wiretap laws were a drag on law enforcement’s efficiency, and urging Congress to pass the PATRIOT Act to make everything better by lessening judicial oversight. Inside the White
House, OLC lawyers argued that eliminating judicial oversight entirely was the best way to defend the country. In fact, the opposite is true: judicial oversight of wiretapping results in more efficient law enforcement because the probable cause requirement focuses law enforcement's efforts on threats that are real. For 200-plus years having judges review the evidence creating cause for suspicion before issuing search warrants is a system that has worked to ensure not only that the innocent don't get searched, but also that law enforcement doesn't waste its time with irrational profiling. Senator Specter and Congress had best relearn this lesson before it is too late.

Shayana Kadidal is a staff attorney at the Center for Constitutional Rights and one of the lead attorneys on the Center’s challenge to the NSA Surveillance Program, Center for Constitutional Rights v. Bush.
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