Specter Bill (was: picking one's court)

Sean Wilson whoooo26505 at yahoo.com
Thu May 11 21:07:06 PDT 2006

Of course, another reaction would be that it might be entirely rational to detect and expose secret terror operations with a policy that can maximally identify the communication that such cells have with their foreign networks. I mean, I don't know how else the government could collect "chatter," something that I am sure we all agree is a very good thing to have. Indeed, the aggressive use of computer technology in the war on terror may indeed be one aspect of the Bush legacy that could be found to have significantly improved the safety of Americans.
  One of the things that is nice about this effort is that it recognizes the need to have innovation in bureaucratic behavior. One of the worst things any president could have done in a post 9/11 world is to rely upon a post-office culture or the standard-operating-procedures of local law enforcement when calling upon government bureaus to police a new and challenging national security problem. My God, if all you had were front line people checking bags at airports or customs people checking packages -- all while the FBI waited for "cause" before they could check anything out --  I imagine we would be in big trouble. Thank God someone saw the need to invent a detection practice that correlated with the novel behavior of threat that arrived. Bureaucracy has never looked better.
  It seems to me that instead of bemoaning the fact that a hegemony exists in Congress for deference to such executive prerogatives -- and, I would argue, instead of advocating that such a hegemony be disrupted in the upcoming elections -- those who love statutory liberalism and the warrant ritual ought to advocate their own brand of innovation to meet the new world. That is, bemoaning the legal maneuvering that side-stepped an antiquated 1970s statute and that innovatively began to police a novel problem is not the right way to go. Instead, Democrats, who have a great opportunity to lead once again, need to perform the innovation BETTER. Let's have more oversight. Let's make sure that behind closed doors they are not doing what Nixon did. Let's make sure no one is cheating. Let's police insider misbehavior, not the act of innovation itself. Let's give the voters BETTER innovation rather than an ideological desire to see a world view that dominated the 1970s reimposed upon
 a changed environment. Let's live in the time we live now and confront the threats that exist. I wonder: can Democrats successfully lead in a dangerous world? (More importantly, do they even think the world is dangerous?). What anti-terror innovation have Democrats given the country other than wanting federal workers to be the baggage people at airports. What is best for this chapter in history if Democrats win the Congress this November -- impeachment (an act of exorcism for the good of liberal pathology) or a BETTER computerized mining program?
  As I have said before, there are lots of rituals in the liberal state I would go to bat for -- juries and speech being my particular favorites. But trading warrant culture for a chatter-and-mining defense program in today's world is anything but a bad trade. Why  on earth people bemoan such a trade is something that I simply cannot understand.

Marty Lederman <marty.lederman at comcast.net> wrote:          If the current iteration of the Specter bill is anything like what it was at the outset, Sandy's concern is the least of its problems.  (And right about now, after today's story, I doubt the FISA court, no matter what its composition, is very fond of the Administration.)  As I discussed here -- http://balkin.blogspot.com/2006/02/mother-of-mercy-is-this-en_114098414956416326.html -- the Specter bill would not authorize any judicial review of the legality of the NSA programs as they now stand.  Instead, that bill would make lawful what the NSA has unlawfully been doing by basically dismantling FISA and allowing warrantless surveillance of virtually everyone at any time, with almost no showing of cause.
  The judicial "review" contemplated by the bill would consist merely of FISC review, on a "program"-wide basis, of whether a particular surveillance "program" satisfies the Fourth Amendment.  
  Besides eviscerating FISA -- which is the Specter bill's largest failing, by far -- the bill's judicial review provisions would themselves raise a host of questions, including:
  (i) whether there is any way for a court to evaluate whether a program as a whole violates the Fourth Amendment, in a sort of pre-enforcement, "facial" challenge; and
  (ii) whether such a ruling, untied to the legality of any particular surveillance, would be permissible under Article III.
  For more on these questions, see pages 12-14 of David Kris's very helpful testimony here:  http://balkin.blogspot.com/kris.testimony.pdf
  * * * *
  The more hopeful Specter development today is that he plans to call telcomm industry execs to testify about what the Executive branch won't tell Congress, namely, the nature and extent of the NSA programs.  The telcomm companies have always been the most vulnerable link in the Administration's plan to keep all of its operations secret and impervious to oversight or any checks and balances.  And after today's embarrassing news of their capitulation, those companies now have a major incentive to come clean if called before Congress.
  Speaking of which:  Can anyone think of any justification for the secrecy of this newly revealed NSA program?  If the Administration thinks it's a good and valuable thing to have companies provide phone records to the NSA, notwithstanding several statutes that appear to prohibit it (see http://balkin.blogspot.com/2006/05/illegality-of-nsa-phone-records.html) --and perhaps that would be a good thing, at least with certain procedural protections -- why can't they simply seek statutory authorization, or publicly make the case for why the program is currently legal?  It's at least a bit outrageous, isn't it, that many telcomm executives and employees know what our government is doing, but the Administration keeps such information from Congress and from DOJ's own ethics attorneys -- not to mention the public?  (See Jack Balkin's post here:  http://balkin.blogspot.com/2006/05/tales-from-unitary-executive-nsa-and.html.)
    ----- Original Message ----- 
  From: Sanford Levinson 
  To: CONLAWPROF at lists.ucla.edu 
  Sent: Thursday, May 11, 2006 2:58 PM
  Subject: RE: picking one's court

   From a story just filed at the NYTimes web site:   
  Mr. Specter said that he believed he had the agreement of all 10 Republicans on the committee for a bill he has proposed that would ask the special court that handles requests for warrants on foreign intelligence to rule on the Constitutionality of the domestic surveillance program.  
  One might note that the FISA Court is a court like no other, in that every single member is handpicked, without the slightest degree of oversight or accountability, by the Chief Justice of the United States.  (Ted Ruger has written a very informative article about the CJ's powers in this regard.)   Although Ruger didn't find evidence that Rehnquist picked only statist-conservatives (as distinguished from libertarian-conservatives), might one not have more confidence in a decision rendered by a random sample of senior judges rather than the FISA judges, none of whom appears to be a noted civil libertarian?  I suppose that one response is that any FISA decision is appealable to the US Supreme Court, so that we shouldn't worry if the initial court hearing the case is a bit unusual in its creation.
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Dr. Sean Wilson, Esq.
Penn State University
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