Mass Media Mischaracterizes Warrantless Surveillance Legislation

The subset of law bloggers within the liberal blogging community have been calling out the media biggies who are casting Arlen Specter's warrantless surveillance legislation as a defeat for Pres. Bush's vision of limitless presidential power.

The bill would give FISA the authority to determine the constitutionality of the NSA spy program and all other surveillance programs. If FISA decided that a program was legal, the president would be free to surveil anyone -- any individual, group, or organization, in the U.S. or abroad -- without getting a court order for any particular case.

Orin Kerr notes the Orwellian title of the bill's Section 9, which sets up FISA's new role:

I have read the Specter bill, and am most intrigued by Section 9 of the bill, which is titled "CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978." Interestingly, the Section is a "clarification" only if you assume the correctness of the President's more controversial claims to Article II authority. If you accept the more traditional understanding of the separation-of-powers seen recently in the Supreme Court's decision in Hamdan v. Rumsfeld and Justice Kennedy's concurrence in that case, then this "clarification" is actually a major reorientation of the role of Congress in foreign intelligence monitoring away from the 1978 framework of FISA. [See the Update at the bottom for further discussion.]

The key language is the new Section 801 of FISA:

Nothing in this Act [FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.

That strikes me as a pretty major change, given that the purpose of FISA in 1978 was to attempt to regulate that authority. The Specter bill then would rewrite the prohibitions of FISA to explicitly allow for this authority. For example, 50 U.S.C. 1809 presently states that "[a] person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute." In other words, it's illegal to conduct warrantless monitoring. The new version would be rewritten as follows:

A person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute or under the Constitution.

(emphasis added) Thus, the President would have a right to exercise his inherent constitutional authority to order monitoring absent Congressional regulation, and the prohibitions of FISA would apply only to monitoring that does not fit within that authority.

Rep. Jane Harman, guest-posting at Balkinization, asserts that this change defies the Fourth Amendment:

The Fourth Amendment states: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The key words here are "particularly describing." The hallmark of the Fourth Amendment is particularized suspicion -- the notion that the government can't just go on a fishing expedition. There must be some clear reason to believe that the target of the search is doing something to warrant the surveillance. A general search warrant is unconstitutional. See Stanford v. Texas, 379 U.S. 476 (1965).

Rep. Harman is co-sponsoring, along with Rep. John Conyers, a rival bill that would allow the president to conduct legitimate surveillance without eliminating the Constitution and the two other branches of U.S. government.

After Hamdan's stinging rebuke to limitless executive powers, Specter would not have been putting himself out on a limb to draft a bill strongly asserting Congress's legislative and oversight rights. But, as Marty Lederman tells us, Specter could not muster even the minimal guts needed to do this:

After the Hamdan decision, the Administration's legal defense of the NSA non-FISA-compliant domestic surveillance program is much weaker than ever -- and that's saying something.

And Senator Specter has been a vocal critic of the Administration on this issue, reaching his apex of pique when the Vice President snubbed him by trying to influence the Judiciary Committee without telling Specter -- even though at a Republican caucus Specter had "walked directly in front of [Cheney] on at least two occasions enroute from the buffet to my table."

So what does Specter do in the wake of the momentous Hamdan decision, which put all the cards in Congress's hands? He introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more. Indeed, come to think of it, the Specter bill is basically the sort of legislation one would expect if the Supreme Court had just held that Congress is powerless to enact legislation constraining the President's "inherent" war powers -- something that not a single Justice in Hamdan so much as suggested.

Marty also slaps the Washington Post for its blatantly misleading headline:

[NOTE to Washington Post: When the President takes a legislator to the cleaners, the proper headline is NOT "Bush Compromises On Spying Program." That's as if a newspaper were to use the headline "U.S. Shifts Policy on Geneva Conventions" to describe the case where the Administration (i) has, at best, merely announced its intent to abide by a Supreme Court holding (imagine that!); (ii) in fact has decided on business as usual; and (iii) has even plotted legislation to allow breaches of Geneva. Oh, wait. Never mind.]

Glenn Greenwald notes the response a reader got to an e-mail he sent Charles Babington:

A reader of this blog sent an e-mail yesterday to the Post's Charles Babington pointing out the grossly misleading nature of his article, and Babington petulantly replied as follows:

From: Chuck Babington

To: XXXXXX

Date: Fri Jul 14, 2006 10:48:26 AM CDT

Subject: Re: Message via washingtonpost.com: Specter Bill

I read the bill. Can you cite a single inaccuracy? Here's my guess: You read neither the bill nor the entire story.

That's how Babington -- after writing a story which conveyed the opposite of reality -- responded to a reader who complained. He condescendingly accused the reader of not having read the bill and/or the article. I was going to e-mail Babington today to highlight for him the patent inaccuracies in his article, but his own newspaper's Editorial Page today already did so.

After reading today's WaPo editorial on the "compromise" legislation, Jack Balkin wonders if there are two newspapers with the same name:

The Washington Post editorial page (which, as I understand it, is entirely distinct from its news desks), today publishes a powerful and well-written editorial that should resonate with readers of this and other blogs, but that will make Post readers wonder if they have in their hands the same paper that they were reading on Friday. It's entitled "Wiretap Surrender," and the Post means legislative, not executive, surrender: "This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power."

But then . . . talk about schizophrenia.

Like clockwork, the national desk somehow manages to get the story 180 degrees backward for the second day running:

As an example of how, "after six years of White House dominance on the policies governing the war on terrorism, senators are suddenly feeling confident that they are gaining at least a say in such matters," the Post points to the Specter "deal":

"On Thursday, Specter won a promise from the White House that Bush would back his legislation placing the administration's warrantless domestic telephone and e-mail surveillance program under a secret court review process. Specter could move that legislation through his committee as early as Thursday.

'I don't want to talk about it in terms of [White House] concessions, because that suggests winners and losers,' Specter said yesterday. 'It's a big gain for constitutional government and a big gain for the country.'"

Senator Specter: You might want to avoid talking about it in terms of White House concessions because there weren't any. The legislation does not place the NSA program "under a secret court review process." It removes the program from the "process" it's currently in -- you know, litigation in federal court, where the courts will almost certainly declare the program lawless if they reach the merits -- and gives the President the option of seeking FISA court rubberstamping under a system in which all substantive restrictions are eliminated and the FISA court decision has no legal effect.

Although not (to my knowledge) a lawyer, Chris has a post up at Booman Tribune that is well worth reading for her commentary on what happens, under the Specter legislation, if the FISA court does decide that a particular surveillance program is unconstitutional:

This is complicated, so I imagine I'll probably get some of it wrong in my initial twelve or thirteen takes on it. As many of you know, the head of the Senate Judiciary Committee, Arlen Specter, has reached an agreement with the Bush Administration over legislation governing the ongoing NSA warrantless wiretapping program. Reading what is available of the proposed legislation (here and here) and the analysis, I don't think there can be much question that Glenn Greenwald has it right when he writes that it will "render legal the currently illegal warrantless eavesdropping program." There seems to be some question as to whether or not the legislation does so retroactively. The legislation guarantees that a complete victory is the administration's worst case scenario. It certainly seems safe to say that the executive branch will get just as many chances as it needs, without any penalty for ever losing in court. From the Washington Post:

The legislation would allow the Justice Department unlimited attempts to revise the program to meet the court's approval and would allow it to appeal adverse court rulings. It would also give the NSA in emergency situations a week rather than the current 72 hours to eavesdrop on a domestic target without requesting a warrant, and it would allow the government to send to the FISA court all lawsuits challenging the program's legality. Some suits, filed by groups such as the American Civil Liberties Union, are already pending in various federal courts.

Reading that, I couldn't get the phrase "heads I win, tails you lose" out of my head. They can't ever lose because they can just keep going and going and going again, until they get a favorable ruling. Specter offers the administration a bloodless victory in what should have been a brutal fight to protect the fundamental rights of every American citizen. Should have been is funny here, because not a bit of this ever should have been, but whatever.

Finally, check out The Anonymous Liberal, who takes apart Massimo Calabresi's Alice in Wonderland article in Time.