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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, February 27, 2006

The potential benefits of the Specter legislation

(updated below)

Having now carefully reviewed Sen. Specter’s proposed legislation to amend FISA (rather than just the amazingly incomplete and even misleading description of the legislation from yesterday's Washington Post article), I can say with confidence that neither this bill nor any modified version of it is going to be even remotely acceptable to the Bush Administration. And, in ways that may (or may not) be intended by Specter, this proposed legislation -- which the Administration is sure to reject -- can achieve the critical goal of highlighting the Administration's true motives in violating FISA.

As I have argued many times, this scandal arose not because the Administration has adopted some radical views specifically about its eavesdropping powers, but instead, this scandal, at its core, is based on the fact that the Administration has embraced the general theory that the President has the right to make decisions about all matters concerning national security without any limitation or "interference" from the Congress or the courts. The Administration did not eavesdrop in violation of FISA because it believed that the FISA standards were too restrictive or that the FISA process was too cumbersome. It eavesdropped outside of FISA because it believes it has the power to eavesdrop (or do anything else relating to national security) in total secrecy, without any judicial or Congressional oversight and without having to justify its actions to anyone.

For that reason, any legislation (such as Specter's) which simply liberalizes FISA standards but still requires judicial approval as well as judicial and Congressional oversight will be unacceptable to the Administration. The Administration has been and still is defending a general theory of unchecked Executive power, not a theory of eavesdropping. They don't care about tinkering with FISA standards. They care about the power to make national security decisions (including, but not limited to, eavesdropping) without any oversight or limitation. As a result, the Specter legislation will not be any more acceptable to them than the current FISA legislation is, and their rejection of it will only serve to highlight just how radical the Administration's position is -- something which, in my view, is a development that ought to be welcomed and encouraged.

While it is true that, as Marty Lederman noted yesterday, the burden which the Administration would have to meet in order to eavesdrop under the Specter legislation would be substantially lowered as compared to what FISA currently requires, it is also true that the legislation provides meaningful – one could even say stringent – mechanisms for both judicial and Congressional oversight, and vests the FISA court with rather broad discretion to approve or reject the eavesdropping programs submitted by the Administration. For that reason, this bill is far from some magic bullet that will quietly resolve this scandal to the satisfaction of the Administration, because I do not believe the Administration can or will accept this legislation.

I want to first summarize the important highlights of this proposed legislation and then describe why I believe quite strongly that this legislation will not resolve anything and may even be quite beneficial in pushing this scandal forward. In sum, because the legislation does provide some meaningful oversight and some substantive restrictions on the President’s ability to eavesdrop on Americans, I don’t think the legislation itself is as pernicious as Marty Lederman suggests and I do not think the Administration will ever accept it.

Highlights of Specter's proposed legislation

In essence, Specter’s proposed legislation abolishes FISA’s requirement that FISA warrants be obtained for each eavesdropping target. Instead, the Administration would be free to eavesdrop without warrants as part of any warrantless eavesdropping program provided that it obtains permission for each such program from the FISA court -- permission which it must obtain every 45 days (Sec. 702(a)).

For any warrantless eavesdropping program the Administration wishes to implement, the Attorney General is required to submit an affidavit to the FISA court every 45 days detailing a wide range of information about the program (sec. 703(a)(1-14)), including:

(4) a statement that the surveillance sought "cannot be obtained by conventional investigative techniques" or by obtaining a FISA warrant;

(6) "the means and operational procedures by which the surveillance will be executed";

(7) a "statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted" is an agent of a foreign power" or a "person who has had communication with the foreign power" and,

(14(D)) "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program."

Even under such warrantless eavesdropping programs, surveillance of a person without a warrant is authorized only for 90 days, after which a warrant is required (Sec. 703(a)(12)).

Specter’s bill requires submission to the FISA court for approval of all warrantless eavesdropping programs -- i.e., not only the specific warrantless eavesdropping program which the New York Times disclosed, but any and all currently illegal eavesdropping programs. It thus requires FISA court approval of the program "sometimes referred to as the ‘Terrorist Surveillance Program’ and discussed by the Attorney General before the Committee on the Judiciary . . . on January 6, 2006," and further requires "approval of any other electronic surveillance programs in existence on the date of enactment of this title that have not been submitted to the Foreign Intelligence Surveillance Court." Sec. 702(e)(2).

For each program for which the Administration seeks approval, the FISA court is required to authorize the program if, in essence, it finds (Sec. 704(a)(2-3)) that the eavesdropping program is consistent with constitutional guarantees (i.e., the Fourth Amendment) and that:

there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.

But critically, beyond this provision, the legislation vests substantial discretion in the FISA court to determine "whether the implementation of the electronic surveillance program supports approval of the application . . . " (Sec. 704(b)).

In other words, the FISA court is required to compare the information obtained by the program to be approved for three prior 45-day periods to determine that it has been implemented in accordance with the proposal submitted to the FISA court by the Administration. The FISA court may approve of the program only if it finds that the "benefits of the electronic surveillance program" justifies its authorization, and that it is being implemented consistently with the proposal previously submitted to the FISA court by the Administration. If it does not so conclude, it can (and must) reject the application. That is rather substantial and broad discretion to vest in the FISA court.

There is also a provision in the legislation for Congressional oversight. Section 705 requires submission of a detailed report to the Chairs and ranking members of the Senate and House Intelligence Committees every 45 days. The report must include a description of the information obtained by the program and the means and procedures by which the information was obtained.

A few other notes about the legislation:

(a) it allows warrantless eavesdropping programs not only for international calls from or to the U.S., but purely domestic communications as well;

(b) it expressly excludes from the approval requirement pure data mining activities or the obtaining of information reflecting the details of one’s communications short of the content of the communications -- i.e., the requirements "do not apply to information identifying the sender, origin or recipient of the electronic communications . . . that is obtained without review of the substance of the electronic communication." Sec. 702(d)(2); and,

(c) this legislation is clearly intended to supplant, not supplement, Specter’s prior announced intention to require submission to the FISA court of the question of the program’s legality.

The Specter proposal will resolve nothing and may even be beneficial.

An analysis of Specter’s legislation must begin with the still-staggering observation that this legislation would become effective not merely by Congress enacting it (even over a veto), but instead, only by the President agreeing to be bound by the law.

In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey).

The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law.

In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide – in secret – to violate the law. That’s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.

Beyond this always-paramount crisis is the fact that the Administration, in light of the positions it has emphatically staked out, cannot possibly accept the meaningful limitations and oversight contained in the Specter proposal. The Administration has repeatedly claimed that national security requires that it be able to eavesdrop with total secrecy and without any limitations from the courts or Congress. It therefore cannot and will not accept a framework which imposes such limitations. The Administration's position will surely be similar to the comment made here last night by the bellwether Bush loyalist Bart:

No, its more unconstitutional overreach by the Congress. If I were the AG, I would recommend the President veto the law, ignore it if the veto was overridden and let the courts settle the constitutionality of FISA.

The Administration has another, independent problem in accepting anything like the Specter legislation. If the Administration accepts these FISA revisions, the glaring question will remain as to why the Administration did not simply seek these revisions previously from the GOP-controlled Congress instead of violating the law in secret. Accepting FISA revisions now will make clear that there was never a need to violate the law; the Administration simply could have requested changes to FISA and still eavesdropped in accordance with the law.

For these reasons, I believe that this legislation could actually achieve a good result for this scandal – in a sense, it calls the Administration’s bluff. From the beginning of this scandal, the Administration has claimed that it eavesdropped outside of FISA because the FISA standards are too restrictive and the FISA process too cumbersome to enable the eavesdropping it wants.

But the falsity of that excuse has been apparent from the beginning – because FISA is incredibly permissive, because the FISA court has rubber-stamped virtually every application it received, and because the Administration could have easily had Congress make any liberalizing revisions it wanted to FISA, but it never did so, opting instead to ignore the entire FISA framework when eavesdropping.

The reality that has long been apparent is that the Administration did not want – and still does not want – to have any oversight at all, or any approval requirements for its eavesdropping activities. Instead, it insists on the power to eavesdrop in secret, without anyone knowing whose communications it is intercepting and without having to justify the eavesdropping to anyone, let alone to some unelected judges.

The Administration does not care about loosening FISA standards and it never did. That’s why this Specter legislation does nothing for it. It cares only about one thing: the principle that the President is free to act without interference from Congress or courts when it comes to making decisions broadly relating to national security. Anything that undermines or negates that unchecked, unilateral power will be equally unacceptable to the White House.

As I’ve argued many times, this scandal really has nothing to do with the President’s eavesdropping powers. It has to do with the fact that the Bush Administration has embraced and insists upon implementing a system of Government where the President can act without limitation from the courts or the Congress. Its conduct in violating FISA is not due to any specific eavesdropping theories, but instead is a manifestation of those overarching theories of unchecked executive power.

Whether the Administration also violated FISA because it wants to eavesdrop in a way that is improper and abusive, or simply because they will not compromise the principal that they have the power to act without interference from the courts or Congress, the Specter legislation – or any framework which provides for any substantive oversight and limitation on its eavesdropping power – will never be, and can never be, acceptable to the Administration.

The Administration’s rejection of this liberalized FISA framework will reveal its true motives in violating FISA. The Administration did not eavesdrop outside of FISA because FISA is too cumbersome or restrictive. It eavesdropped outside of FISA because it does not recognize the concept of checks and balances on which our country is based, and it insists upon the unilateral and unchecked power to eavesdrop (and to do anything else broadly relating to national security) without any oversight or checks at all.

That startling fact needs more attention. What will surely be the Administration’s emphatic rejection of the Specter legislation will illustrate the Administration’s true motives in violating FISA and the radical nature of its beliefs about its own power. We need to have the debate over the Administration's seizure of unchecked power out in the open. To the extent the Specter legislation can accomplish that, it ought to be welcomed.

UPDATE: It is worth remembering that Congress, as part of the Patriot Act, gave the Administration all of the FISA amendments it asked for to liberalize FISA, and the Administration -- at roughly the same time -- still went ahead and violated FISA by eavesdropping outside of its framework. That fact alone ought to demonstrate that the Administration is not and has never been interested in liberalizing FISA. The Administration is interested in solidifying its law-breaking powers and insisting on the right to act without having to adhere to the law.

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