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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.

Thursday, May 25, 2006

Specter and Feinstein propose a ban on funding for all eavesdropping outside of FISA

(updated below - and again)

A generally reasonable -- and potentially quite significant -- bill was jointly introduced last night by Senators Arlen Specter and Dianne Feinstein. The essence of the bill is to mandate that any and all eavesdropping on U.S. persons on U.S. soil fully comply with FISA (which is really another way of saying that the Bush administration is required to comply with the existing law called FISA), and it also bars the use of any federal funds for any eavesdropping programs which do not fully comply with FISA.

A detailed summary of the bill from Sen. Feinstein's office is here. These are three of the principal provisions:

• Re-state that FISA is the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil for foreign intelligence purposes;

• Prohibit the use of federal funds for any future domestic electronic surveillance that does not fully comply with the law; and

• Expressly state that there is no such thing as an “implied” repeal of FISA laws. In other words, no future bill can be interpreted as authorizing an exemption from FISA unless it expressly makes an exception.

Although there is a link to a .pdf of the actual bill on Feinstein's site, it doesn't work, so I have not yet been able to review the bill itself. But I should have a copy shortly (see UPDATE below).

The principal benefit of the bill is that it (a) eliminates the ludicrous claim that the AUMF implicitly authorized the administration to eavesdrop in violation of FISA and (b) expressly bars any future claim that Congress "implicitly" provided an exemption from FISA. The bill also liberalizes FISA's procedures to rectify the allegedly cumbersome warrant procedures -- including by expanding the warrantless window period from 72 hours to 7 days, streamlining the paperwork procedures, and easing the emergency eavesdropping requirements. These changes are designed to remove the excuses made by the administration as to why FISA is inadequate or excessively burdensome. The bill also requires that the full Senate Intelligence Committee be briefed on all eavesdropping programs.

A few observations about this bill:

(1) For better or worse, Feinstein and Specter carry significant influence with regard to these issues. Feinstein is viewed as a moderate, at least, on intelligence and defense issues, and Specter is a Republican. The fact that they have jointly sponsored a bill prohibiting eavesdropping outside of FISA and blocking the AUMF claim is going to be a serious obstacle in the effort to resolve the NSA lawbreaking scandal.

(2) The fact that Specter has now actually sponsored legislation to cut off funding for the warrantless eavesdropping program -- as he vowed a couple of weeks ago he would do -- is plainly significant.

(3) It goes without saying that the administration believes it has the right to violate this law. In terms of the president's theories of lawbreaking, this bill is no different than FISA -- given the premise that he has the power to eavesdrop on Americans however he wants, he will claim the power to break this law every bit as much as he claims he has the power to violate FISA. But if this bill were to pass, it would remove one of the two legal justifications the administration has -- namely, that the AUMF implicitly authorizes warrantless eavesdropping -- and force them to rely solely on their lawbreaking theories. It would also force them to find a way to fund any non-FISA eavesdropping activities notwithstanding a Congressional ban on such funding.

(4) The largest unresolved question is how this legislation would interact with the other proposed, still-pending FISA amendments sponsored by Sen. Specter, Sen. DeWine and others. This latest Feinstein/Specter bill merely requires that eavesdropping comply with FISA, whatever FISA might allow. It does not ban warrantless eavesdropping. Thus, if Sen. DeWine's legislation were enacted, and warrantless eavesdropping were expressly allowed by FISA, this Feinstein/Specter legislation would not actually block the warrantless eavesdropping program in any way.

It is impossible to get a real read on where Specter is at the moment with all of these issues. I don't think he knows. But this morning's Congressional Quarterly (subscription req'd) details just how far away the Congress is from agreeing to a legislative solution:

The new approach is at odds with Specter's earlier legislation that would require the administration to seek approval from the special court for the entire surveillance program, rather than case-by-case surveillance.

Specter, R-Pa., has been haggling with the other Republicans on the Judiciary Committee over changes to his earlier bill, which the committee plans to mark up Thursday.

The other Republicans, particularly Jon Kyl of Arizona, want Specter to strip out language requiring the administration to seek the FISA court's approval for the program. They also want to delete several provisions of the 1978 law, including language that mandated it to be the "exclusive means" to conduct surveillance for foreign intelligence purposes. They also want to make the deletions retroactive to when the 1978 law was enacted.

Specter has circulated several draft substitutes to his earlier bill along those lines, but it's unclear at best whether he will agree to the changes demanded by other Republicans to move his legislation out of committee.

The panel has two other NSA-related bills on its schedule. One measure (S 2455), by Mike DeWine, R-Ohio, would subject the NSA program to more congressional oversight and give the administration the option of seeking approval from the secret court for surveillance of particular targets. The other bill (S 2468), by Charles E. Schumer, D-N.Y., would allow people who believe they could be targets of NSA surveillance to go to federal court to stop it.

Meanwhile, Senate Intelligence Chairman Pat Roberts, R-Kan., is busy working on his own measure regarding the surveillance program. Roberts intends to claim his
committee's jurisdiction over any measure that Specter's committee produces. Roberts has said Majority Leader Bill Frist, R-Tenn., wants Roberts and Specter
to work out any differences over their bills themselves.

Ultimately, Specter and Feinstein agreed to this bill not knowing what the new FISA -- if there is one -- would ultimately permit. So, its real purpose seems to be to force a showdown with the administration over the president's obligations to obey the law, whatever the law might mandate. It does that by removing the administration's excuse that Congress allowed it to violate the law (with the AUMF), and by exercising the Congress' undisputed constitutional authority to cut off funding for any program that exists outside of FISA. It therefore forces the administration's hand by making it much, much more difficult for the administration to eavesdrop in violation of the law. The bill, at its core, is really an assertion of Congressional power to regulate eavesdropping on American citizens on U.S. soil, combined with a strategic effort to block the administration from ignoring the law in the future by removing most of its defenses for doing so, and by banning any funding of non-FISA eavesdropping.

To the extent that this bill brings us closer to the necessary (and, in my view, inevitable) showdown over the Bush administration's refusal to obey the law, I think it is a step -- perhaps a significant step -- in the right direction. And the bill clearly signals that we are still very far away from any sort of resolution of the NSA scandal, which, by itself, is cause for optimism. Despite the disappointing and baffling events of yesterday with regard to Gen. Hayden, I do think that the beaten down, humiliated Congress smells a little blood over at the White House, and this step, tentative and modest though it is, could signal an increased willingness on the part of the Congress finally to demand that it once again play some actual role in how our government functions.

UPDATE: Thanks to Rachel Perrone of the ACLU, who has e-mailed me a .pdf version of the actual bill. The summary on Sen. Feinstein's site is quite accurate and comprehensive, but the bill itself seems even stronger than the summary suggests. The very first provision emphasizes that FISA shall be the exclusive means for eavesdropping -- one of the provisions which Bush's most loyal Senate allies are most devoted to eliminating. It also requires fairly thorough briefing on all eavesdropping activities to the full Intelligence Committees of both the Senate and the House.

Additionally, the bill specifically contemplates a warrant procedure, i.e., that eavesdropping require the approval of the FISA court, so it would be very hard to reconcile this bill with, for instance, Sen. DeWine's bill allowing warrantless eavesdropping. This bill seems to signal that Sen. Specter is committed to prohibiting any eavesdropping without the approval of a FISA judge.

UPDATE II: Sen. Specter's statement regarding the bill is here. Characteristically, he includes a provision speculating that his own bill might be unconstitutional for daring to regulate the eavesdropping activities of the President. Sen. Specter is never going to change his behavior; it is too deeply engrained in his character. But the fact that this is a very positive development does not rely upon the strength of Sen. Specter's convictions, but upon the fact that there is serious resistance in the Congress to allowing the White House to force an easy resolution of this scandal which shields them from accountability for their past lawbreaking.

UPDATE III: An online .pdf of the Feinstein/Specter bill is here (h/t EJ).

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