Are We Heading Back to the Bad Old Days?
What's the Big Secret?
Are We Heading Back to the Bad Old Days?
An email conversation about the news of the day.
Aug. 30 2007 1:26 PM

What's the Big Secret?


I've really enjoyed this, guys. But I have a sneaking suspicion we haven't really answered the question in the title. Isn't there some quick and easy way to simply identify for our readers what this new law allows the NSA to do?

Apparently not. We've gone round and round, making all sorts of suppositions and counter-suppositions about what practices NSA has in mind, and also doing our level best to predict how DoJ and NSA lawyers might construe the words of this law. And the truth is, we really can't say for sure; and every time we look at it, we see new wrinkles, new ambiguities, greater mysteries … to the point where we're resorting to reading the tea leaves of an almost incomprehensible interview with the El Paso Times.


Isn't that the biggest, most fundamental problem with the Protect America Act? Here we are, a bunch of lawyers who have some grounding in this area—including one who just literally wrote the book (and I heartily recommend David's new volume)—and we've been parsing those 14 words in the new law ("surveillance directed at a person reasonably believed to be located outside of the United States") as closely as we can, poking and prodding for several weeks now, and all we can do is make wild guesses as to what it will mean in practice. Indeed, I'm fairly sure we have now examined the Protect America Act more closely than at least 525 or so legislators in town. And we're in the dark. So, what are the odds that anyonewho voted for this bill has any idea whatsoever what they have just authorized?

Whatever one thinks of FISA's ultimate compromises, that statute was a model of legislation compared to this one. It was enacted after four years of (mostly) open and detailed deliberation and debate. Every single phrase in it was publicly and microscopically examined by the administration and the Congress—with numerous examples in the written and oral testimony explaining what sorts of cases would be covered and excluded, and how. Countless witnesses testified as to FISA's possible interpretations and ways to clarify the statutory language; the legislative history, including committee reports, was extensive and very revealing; the statute contained detailed definitions of its terms of art; and Congress built in oversight roles for the courts and the legislature itself.

The new act? Passed in the dead of night, after some backroom meetings occurring over the space of a few nights, with no public deliberation, no legislative history (Justice Scalia will be thrilled!), and no definition of the key 14 words I noted above. It's enough to give sausage-making a good name.

There are only a few dozen people in this town who "know" how the Protect America Act will be construed … and they all work in the executive branch, which, not coincidentally, will be doing all the construing. In secret. Without substantial oversight or review. And without the vast majority of members of Congress having the foggiest notion of what it is they have authorized our government to do. How long before it's 1975 all over again?

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice's Office of Legal Counsel 2009-10 and an attorney advisor in OLC 1994-2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.

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