Handing over the keys

Updated below:

Marty Lederman has some preliminary observations after completing his first reading of the proposed Specter bill to redo FISA.

[The draft bill] is not simply a reenactment of the "FISA framework" -- instead, it's a wholescale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.

…the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular targeted surveillance -- will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power, as long as the government is seeking to monitor or detect that foreign power (or agent)! (See the new section 704: The standard for the FISA Court's review of the application is whether "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.")

This is breathtakingly broad because the pre-existing definitions of "foreign power" and "agent of foreign power," which would not be changed, include not only terrorist organizations, but all components of a foreign government, all foreign-based political organizations, and all persons acting in the U.S. as agents of such govenrments and organizations.

… In other words, there would no longer be any meaningful substantive statutory restriction on the federal government's electronic domestic surveillance of U.S. persons -- the end of FISA as we know it. The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is "consistent with" the Fourth Amendment. This would, if I'm not mistaken, bring us right back to the pre-FISA days, when the Fourth Amendment was the only legal constraint on domestic electronic surveillance by the federal government. To be sure, under the Specter bill the Fourth Amemdent bona fides would have to be approved in advance, by the FISA court. But the proceedings would be secret, and ex parte. Moreover, the FISA Court could not possibly review the surveillance for, e.g., the "particularity" that the Fourth Amendment requires, because the FISA Court would be tasked not with determining whether any particular interception is constutitional, but somehow with making "wholesale" determinations that the program writ large is "consistent with" the Constitution.

A day or so ago I quoted someone as saying that the difference between Bush and the Roman emperors is that the Roman senate authorized the Roman emperors to take power, whereas Congress has not authorized Bush to do so. Enter Arlen Specter handing the keys to Bush.

Update: Glenn Greenwood has a somewhat different take on the Specter legislation. He believes that even the relaxed version of FISA in Specter's proposal will not be acceptable to the administration.

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...

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.

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.