Pages

Labels

Thursday, July 13, 2006

What is this seeming compromise on the NSA surveillance program?

The NYT reports:
The White House has agreed to allow limited judicial review of the eavesdropping program run by the National Security Agency, Senator Arlen Specter, the chairman of the Senate Judiciary Committee, and a White House spokeswoman said today.

Mr. Specter, a Pennsylvania Republican who has sharply questioned the propriety of the program since it was disclosed several months ago, said the White House had agreed to a bill that provides for the highly secret Foreign Intelligence Surveillance Court to “consider the program as a whole and to make a decision on it.”...

A White House spokeswoman, Dana Perino, said today that a crucial factor in the agreement was that the bill “recognizes the president’s constitutional authority."...

Mr. Specter held a Capitol Hill news briefing after informing members of his committee about the agreement. He told panel members that the proposed bill would, among other things, demand that government investigators explain why they believe intercepted communications involve terrorism and create new penalties if officials misuse information....

Asked whether the review by the court would be continuing or a one-time affair, the senator said it would be the latter, unless the eavesdropping program is changed. “What we’re looking for is the existing program to be submitted to the F.I.S.A. Court on a one-time review; they make a decision, that’s it,” Mr. Specter said. He declined to speculate on whether the court would announce its decision.
I'd like to see more information on this, but based on this report, I can't tell what the court is being asked to do or who is supposed to have standing to bring the lawsuit the bill purports to authorize. A one-time review of the legality of the program? Who is suing whom in this lawsuit, and how does it avoid the problem encountered in Raines v. Byrd, where Congress tried to set up judicial review of the Line-Item Veto Act? Even if there is a concretely injured plaintiff to bring the lawsuit, what is the question the court is to answer? I thought the primary legal argument against the NSA program was that it didn't follow the letter of the statutory law. If the statutory law is changed to explicitly permit it, what is left? A Fourth Amendment argument? Does anyone think there is much to that?

"[T]he proposed bill would... demand that government investigators explain why they believe intercepted communications involve terrorism." In a one-time review? So the bill authorizes the program, but on condition the government proffer a good-enough explanation that it is indeed a method for tracking terrorists. Isn't that just a policy decision that Congress should be making right now as it passes a bill that authorizes the program? Please argue with me. I'm sure I'm missing something. But I'm just seeing a complete fizzle when this gets into the court.

0 comments:

Post a Comment