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.

Sunday, February 26, 2006

Specter proposes a new law -- something called "FISA"

(updated below)

This article from today's Washington Post is nothing short of surreal:

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago. . . .

The draft version of Specter's bill, which is circulating in intelligence and legal circles, would require the attorney general to seek the FISA court's approval for each planned NSA intercept under the program. Bush has said the agency monitors phone calls and e-mails between people in the United States and people abroad when any of them is thought to have possible terrorist ties.

It is, of course, so disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them. Reading this article about Specter's proposed legislation is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks.

In fairness to Specter, one can conjure up a rationale for passing a law which requires (again) that the NSA program be conducted only with the FISA framework -- namely, that such a newly enacted law will negate the Administration's claim for future eavesdropping that the Congress gave the Administration an exemption to FISA via the AUMF (obviously, if Congress, subsequent to enactment of the AUMF, enacts a law specifically requiring any and all eavesdropping by the NSA to be conducted only under the purview of the FISA court, not even the Administration could argue that it remains exempted from FISA by virtue of the AUMF).

Regardless of the intentions, there are two glaring problems with Specter's proposed legislation. The first is that it renders the "rule of law" a meaningless illusion. Nothing in Specter's proposed legislation would release the Administration from liability or other consequences from their four-year history of intentional law-breaking, and, from what I know, he is still pursuing his legislation requiring that the question of the program's legaility be adjudicated by the FISA court.

Nonetheless, this new, proposed legislation would plainly endorse the excuse that there was something previously unclear about whether FISA warrants were required for the NSA eavesdropping - hence, the need for a new law. Not even the Administation claims that the eavesdropping in which they engaged on American citizens was outside the scope of FISA. There was nothing unclear about the law. It criminalized exactly the activities in which the Administration engaged, and no new law is needed.

The far bigger problem is that Specter's legislation ignores the actual crux of this scandal. As I've pointed out many times before, the problem we are confronting is not that the Administration specifically believes that it has the power to eavesdrop without warrants in violation of the law. It does believe that, but only as a manifestation -- a consequence -- of a much broader and more ambitious theory that vests in George Bush the power to break Congressional laws and act even in defiance of court orders on all matters relating to national security, broadly defined.

Therefore, even if Congress were to pass a law such as Specter's aimed specifically at this NSA program, the Administration has already made quite clear that it believes it has the power to violate that law. Alberto Gonzales told the Senators right to their faces that the Administration never bothered to seek approval from Congress to engage in wireless eavesdropping outside of FISA -- and that it is unnecessary for it to do so in the future -- precisely because Congress has no power to restrict what the President does.

Specter's new law would be treated by the Administration as being just as irrelevant and optional as it has treated FISA. Enacting a new law which the Administration is claiming it has the right to ignore is an exercise in futility and idiocy. The Administration has seized the power to break the law. Until that problem is resolved, Specter and his distinguished colleagues and friends in the Senate can pass all of the laws they want, but those laws will continue to be viewed by the Administration as optional suggestions which can be followed if the Administration wants to, rather than actual laws that compel adherence.

I actually think that the Administration's theories vesting George Bush with law-breaking powers are so radical and dangerous that people like Specter can't get themselves to actually accept that the Administration has really embraced these theories and is living them. Notwithstanding the fact that the Administration has expressly advocated these positions in numerous instances in many different contexts over several years now, it's as though people in Congress -- and the media -- think they're not really serious about believing them. I wonder what else needs to be revealed about the Administration's law-breaking for people to start realizing that this Administration really does not only believe that George Bush has these law-breaking powers, but also that they have been exercising those powers for quite some time now and have vowed to continue to do so.

UPDATE: My analysis here of Specter's legislation was based on the description of the proposed bill by the Washington Post article, rather than a reading of the proposed bill itself (which I wasn't able to find online yet). As a result, suggests the always insightful Marty Lederman, I actually under-stated how pernicious this legislation is and erred in some of what I said about it.

I intended not to do a lot of blogging today, so I will have a lot more to say about this tomorrow. Marty has obtained and posted Specter's draft legislation, which I have now read (though not carefully). It does indeed go far beyond simply bringing the NSA program within the purview of the FISA court. What it does is authorize the entire warrantless eavesdropping program itself by directing the FISA court to approve of it every 45 days provided some extremely permissive criteria are met, and in the process, allows eavesdropping without case-by-case warrants. In other words, as Marty points out, it renders legal the lawless NSA program and simply requires the FISA court to rubber-stamp its approval for the program every 45 days.

Nothing in the legislation grants immunity to the Administration for prior lawbreaking, nor would it preclude the legislation Specter said he intended to introduce of requring the FISA court to adjudicate the legality of the program. Clearly, though -- as several commenters in the thread after this post speculated -- Specter's intent seems to be to create an illusion of FISA court oversight over this program while handing the Administration legal cover for its previously illegal behavior. As I said, I'll post a lot more on this tomorrow.

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