DeWine Amendment and NSA -- What Should be Done?

[Marty Lederman]

My take on the DeWine imbroglio is that it shows that the Administration (i) knew that it could not get statutory authorization for the entirety of the new NSA program; (ii) did not want to ask Congress for half-a-loaf (the DeWine Amendment), both because such a request would undermine the absurd "AUMF has already authorized it" argument it was holding in abeyance, and because then there would be no justification for the other components of the NSA program, which DeWine would not authorize; and (iii) above all else, did not want the statutory amendment to FISA -- you know, the one Congress had already enacted in the AUMF -- to become publicly known and thus subject to debate and, most importantly, court review, because in that case they might actually be confronted with a court decision invalidating what NSA has been doing (or Congress denying that it had authorized the program).  That is to say, it was essential that Congress authorize this program, but just as essential that no one -- not even the legislators voting for the amendment -- realize that Congress has provided such authorization and that a huge hole had been driven through the heart of FISA. 

In this respect, please allow me to raise what I think is the most important question going forward.  Assuming, as I do, that the Administration's statutory argument will fall on deaf ears -- or receive an even more hostile reaction -- in Congress, WHAT SHOULD CONGRESS DO ABOUT IT?  They could stamp their feet and make lots of sour faces at a hearing.  I suppose they could try to enact another statute saying:  "FISA -- We really, really, mean it."  But even if the political will to that were present (and it probably isn't), the President would likely veto it on Article II grounds.  There's a lot of talk about a special counsel.  That's not going to happen -- nor should it, because, as I've tried to explain here -- http://balkin.blogspot.com/2005/12/prosecutorial-discretion-continued.html and here -- http://balkin.blogspot.com/2006/01/what-can-be-done-about-nsa-dispute.html -- such a Special Counsel would be either illogical or useless, since the primary dispute here is a purely legal one about the meaning of FISA, the AUMF and Article II.  (Even in the inconceivable case that a Special Counsel were appointed and given the authority to reject the Attorney General's legal conclusions -- which will never happen -- just imagine the results:  Patrick Fitzgerald, or his equivalent, announcing (after 38 months of investigation) -- "I'll be darned; the AUMF didn't amend FISA!"  (Or the opposite.)  As though the opinion of one D.C. lawyer would materially affect this debate, or the Administration's conduct, one way or the other.) 

Instead, shouldn't the entire focus here be on Congress doing whatever it can to make sure the issue is justiciable so that the courts can resolve it?  In this respect, I recommend this post of David Barron's, in which he suggests that Congress should enact a statute creating a staturory cause of action to specified persons who have a reasonable likelihood of being tapped and who therefore have a serious claim that their speech has been chilled and their privacy unlawfully compromised:

http://lawculture.blogs.com/lawculture/2006/01/solving_the_con.html

----- Original Message ----- 
From: "Howard Gillman" <gillman at usc.edu>
To: <Conlawprof at lists.ucla.edu>
Sent: Wednesday, January 25, 2006 11:13 AM
Subject: DeWine Amendment and NSA


> If this [http://glenngreenwald.blogspot.com/2006/01/administrations-new-fisa-defense-is.html] account is correct, in 2002 Senator DeWine introduced legislation that would "amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion" (see http://www.fas.org/irp/congress/2002_cr/s2659.html).  It was defeated, in part because the Justice Department lawyer who oversees DOJ's Office of Intelligence Policy and Review testified against the proposal (see his statement at http://www.fas.org/irp/congress/2002_hr/073102baker.html).  Among other things he testified that the administration was making "full and effective use" of FISA and thus didn't need the proposed DeWine amendment, saying "It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require."  He also testified that it was "n
> ot clear cut" whether Supreme Court precedent would allow for a "reasonable suspicion" standard rather than a "probably cause" standard.
> 
> Gen. Hayden said recently that one of the reasons why it was necessary to bypass FISA was that the "probable cause" standard was too restrictive.  If that's so, then why did the administration oppose the DeWine amendment?  Does the Congress' rejection of the DeWine amendment have any bearings on the current legal debate over the secret NSA program?
> 
> Howard Gillman
> Professor of Political Science, History, and Law
> Associate Vice Provost for Research Advancement (Social Sciences)
> University of Southern California
> Bovard Administration Building, Room 300
> Los Angeles, CA 90089-4019
> (213) 740-6709, gillman at usc.edu 
> http://www.usc.edu/politicalscience/gillman
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