February 28, 2006

Lederman on Specter's Plan to Destroy FISA

If you haven't read this post by Marty Lederman yet, you need to if you have any interest in the FISA/domestic spying/4th Amendment debates. Senator Specter's proposal to "reform" FISA essentially guts it and gives the executive branch the kind of spying power that paranoid autocrats would lust for. Here are some passages from (the usually much more reserved) Lederman's analysis. He notes he hasn't had time to read it as closely as he'd like - but he hasn't substantially updated this post since Sunday.

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 ...

...if you've ever had any communication with a foreign government or organization, or its U.S. agents or employees -- that is to say, if there's "probable cause" that you live and breathe here in the U.S. -- this bill would permit the President to wiretap you indefinitely, without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda. [UPDATE: Not quite indefinitely. "Continuous" surveillance could only last 90 days, after which the NSA would have to obtain a traditional FISA order, or perhaps merely skip a day and start the surveillance anew, so that it's not "continuous" for more than 90 days.]

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. That seems untenable, at least on first glance.

Posted by armand at February 28, 2006 01:26 PM | TrackBack | Posted to The Ever Shrinking Constitution


Such a great word, lust. Has a nice ring to it, like mendacious, and specious.

Posted by: binky at February 28, 2006 01:46 PM | PERMALINK

Indeed - and I suppose that should have read "lust after" not "lust for" (though by now surely readers know I'm not the world's king of grammar - or even merely the king of typing correct spellings). Lust and mendacity - they are behind so much of the fun and passion of the world. And as words they look and sound great.

Posted by: Armand at February 28, 2006 02:13 PM | PERMALINK

such sweeping condemnation after my illuminating email suggesting that Lederman might be a bit ahead of himself in characterizing this as a radical departure from the current FISA statute. i still need to read more carefully, but i'm not convinced.

Posted by: moon at March 1, 2006 12:13 AM | PERMALINK

He wrote this, and I posted about it before I read your illuminating e-mail Moon. :) The points you raised there notewothy, but it still strikes me that this is a considerable shift - and not in a direction I'm comfortable with (or trust the current team to be in charge of anyway).

Posted by: Armand at March 1, 2006 09:52 AM | PERMALINK
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