Last week, headlines suggested that Sen. Arlen Specter had reached a compromise with the White House to ensure that the warrantless surveillance program conducted by the National Security Agency—which Congress has refused to investigate —might at least be evaluated by the courts. The New York Times' Eric Lichtblau, who first broke the wiretapping story back in December, called the proposal a "middle ground approach"; Time ran a piece about a swashbuckling Specter bullying Bush into submission. It seemed that this months-long clash between power-hungry executive and anemic Congress might be definitively resolved in the one forum White House lawyers had sought desperately to avoid: the judiciary.
It seemed that way only until you read the bill. As a chorus of bloggers were the first to point out, the Pennsylvania Republican's bill is not, as Time had it, a "sign [that] the White House is losing ground in the fight over wartime powers." Indeed, it's the opposite: an act of abject congressional capitulation masquerading as a hard-won compromise. If the bill passes, it won't just rewrite the rules that govern whether and when our government can spy on us. It will alter the checks and balances that you learn about in high-school civics class because they're the bedrock of the American system of government.
Even by the desultory standards of legal writing, the 18-page draft of the bill is daunting. (Former Department of Justice lawyer and Georgetown law professor Marty Lederman, no stranger to convoluted legislation, declared it "almost unreadable.") So, perhaps the initial headline writers can't be blamed for spotting language about judicial review by the FISA court and concluding that it represented a compromise. The problem is the gulf between the real oversight established by the 1978 Foreign Intelligence Surveillance Act, passed in the wake of the rampant domestic snooping of the Watergate era, and the fake oversight envisioned in this bill. FISA mandated judicial review each time the NSA applies for a warrant to eavesdrop. Specter proposes a blanket review of whole surveillance programs. Leave aside for the moment the Fourth Amendment's requirement that search warrants must be issued on an individual basis and the fact that some of the NSA's programs reportedly monitor thousands of people. There's an even bigger problem: Review by the FISA court is optional. Whereas under the 1978 law, the president could authorize surveillance without seeking a warrant for up to 15 days after a declaration of war, Specter's bill eliminates the declaration-of-war provision and expands that 15-day grace period—to a year.
And Specter is just getting warmed up. Toward the end of the bill, a few sly additions demonstrate that everything else, accommodating though it seemed, was mere preamble. Section 801 proposes to amend FISA by inserting the phrase, "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." In other words, none of the constraints just outlined should be interpreted as absolute, because nothing in the preceding pages counts!
This provision, along with the accompanying suggestion that the president can find authorization to wiretap either through FISA or "under the Constitution," effectively codify the Bush administration's controversial argument that the president's authority as commander in chief under Article II of the Constitution gives him virtually unconstrained license to do whatever he sees fit, national-security-wise. According to this view, it's not the NSA surveillance program that's unconstitutional, but FISA itself. Critics have dubbed this the Article II on Steroids theory; and however much he puffs out his chest at the administration, it appears that Arlen Specter has become a subscriber.
So, to sum up this civic morass: In 1978 Congress passed a sweeping law limiting the power of the president to spy on the American people. A quarter-century later, Bush administration lawyers concluded that this law was unconstitutional. Rather than challenge its constitutionality in the courts, they elected to violate it in secret. And now, in the name of oversight, the chair of the Senate Judiciary committee is proposing to bypass any rigorous judicial assessment of the president's constitutional prerogatives and instead to endorse the administration's position—a position, incidentally, that the Supreme Court rejected just weeks ago in another context. The bill amounts to the repeal-by-amendment of FISA.
Specter's biggest gift to the administration is that, if passed, his bill would manage to do what Justice Department lawyers have been scrambling to do for months: keep this controversy out of the courts, or at any rate, out of courts with any semblance of due process or transparency. Since December, civil libertarians have launched a wave of challenges to the surveillance program, figuring that while Congress might be too timid to bring the administration into line, the judiciary might not be. Throughout the spring and summer, Justice Department lawyers sought to torpedo these cases by employing an obscure and pernicious legal tactic, the state secrets doctrine. Traditionally used to prevent the introduction into court of evidence that might compromise national security, the state secrets doctrine is now being employed by the administration to dismiss cases at their inception.
The strongest of these challenges is a case brought by the Electronic Frontier Foundation, a digital-rights nonprofit, against AT&T. It alleges that the telecom giant broke the law by secretly cooperating with the NSA. EFF has what other plaintiffs lack: an AT&T whistleblower named Mark Klein, who can testify about a secret room that NSA operates at an AT&T hub in San Francisco. But even if it overcomes the government's state secrets hurdle, EFF's case could now be pre-empted by a provision in Specter's bill that allows the attorney general to move any legal challenges to NSA surveillance to the secret FISA court.
The bad news for plaintiffs like EFF is that this court has never been a forum for litigation. It's a mechanism for granting (and on a few occasions, modifying) warrants. It's not clear that plaintiffs would be able to present arguments to the FISA court about the merits of their case; hear the arguments of government lawyers on the other side; or obtain a written opinion from the court in the event that the case is dismissed. It all sounds a bit kangaroolike. And there's one more goodie: Specter proposes that the FISA court should be able to dismiss these challenges not just on grounds of secrecy or national security, but—wait for it—"for any reason."
According to polls, roughly half the country is unconcerned by reports that the government might be reading our e-mail. But whatever your feelings about personal privacy, Specter's bill should give you pause. It is one of the founding principles of American government that no one branch should be beyond scrutiny or reproach. Yet having abdicated its own role as a check on executive excess, Congress is now entertaining the possibility of helping the president eliminate the judicial check as well. To be sure, sounder proposals are also in contention (see New York Democratic Sen. Chuck Schumer's, for instance). But if Specter's bill prevails, it will amount to a White House masterstroke, precisely what James Madison had in mind when he described the dangers of unchecked rule by one branch of government: "the very definition of tyranny."