Why the Administration Won't Back Specter's Bill

This morning Glenn Greenwald wrote:

Having now carefully reviewed Sen. Specter's
proposed legislation to amend FISA . . . I can
say with confidence that neither this bill nor
any modified version of it is going to be even
remotely acceptable to the Bush
Administration. And, in ways that may (or may
not) be intended by Specter, this proposed
legislation -- which the Administration is sure
to reject -- can achieve the critical goal of
highlighting the Administration's true motives
in violating FISA.

I entirely agree with Glenn, but for somewhat different reasons. Glenn argues that the administration will never support the bill because 1) doing so would undermine "the general theory that the President has the right to make decisions about all matters concerning national security without any limitation or 'interference' from the Congress or the courts" and 2) "the legislation provides meaningful - one could even say stringent - mechanisms for both judicial and Congressional oversight, and vests the FISA court with rather broad discretion to approve or reject the eavesdropping programs submitted by the Administration."

Though Glenn may well be right on both counts, my gut feeling is that he overstates the degree to which the administration is motivated by a desire to assert--at all times--a robust theory of executive power, and that the oversight mechanisms provided for by Specter's bill are less meaningful then Glenn thinks they are.

First, while there may be many Yoo disciples in the Bush administration (Cheney and Addington come to mind), this hasn't stopped the administration from seeking Congressional authorization for other terrorist related surveillance activities. The administration sought and secured a number of key amendments to FISA in the Patriot Act, which was passed at about the same time the warrantless NSA program was initiated. And recently, the administration has expressed support for draft legislation proposed by Sen. DeWine which would subject the NSA program to the oversight of a specialized Congressional subcommittee. If the administration's primary motivation was to avoid conceding that its surveillance powers can be in any way constrained by Congress, it's hard to see why it would find the DeWine legislation acceptable. And perhaps most tellingly, the administration's current legal position, as laid out in the DOJ white paper, relies primary on the alleged statutory authority conferred by Congress via the AUMF. While the DOJ does make some rather extreme assertions about the president's inherent Article II authority, these arguments come only at the end of the paper and are not given nearly the same amount of space as the AUMF-related arguments.

To me this suggests that the administration is not opposed, in principle, to seeking and relying on Congressional authorization when it suits them. In other words, I don't think the administration's opposition to Specter's legislation can be explained by a mere unwillingness on the administration's part to admit that Congress has a proper role in regulating surveillance.

As for the substance of the bill itself, I agree with Glenn that the bill, in theory, grants the FISA court significant discretion to approve or disapprove of proposed surveillance programs. Unfortunately, I think much of this discretion is illusory. The bill doesn't really provide any standards (other than a laughably weak program-wide probable cause standard) for the court to use in evaluating these surveillance programs. I find it very hard to believe that, absent such guidance, the FISA court is going to step in and make policy judgments about the merits of these programs, particularly in secret ex-parte proceedings in a time of war. I think, realistically, the only meaningful standards that the FISA judges will apply to these programs are those embodied in the Fourth Amendment itself. So basically, the bill takes us back to where we were prior to the passage of FISA, when the Fourth Amendment provided the only restriction on the president's power to conduct domestic surveillance for national security purposes. The only difference would be that, under Specter's bill, this constitutional review would take place at the front end, not after the program was challenged.

So if the administration is not in principle opposed to seeking authorizing legislation, and Specter's bill effectively emasculates FISA, why would the administration oppose it? As I've explained before, I think that the one meaningful requirement of Specter's bill--front-end constitutional review--is exactly what the administration has been hoping to avoid from the very beginning.

Let's take a step back for a second. Looming behind the statutory controversy is a constitutional question that the Supreme Court has never had the occassion to address: what, if any, limits does the Fourth Amendment impose on domestic surveillance done for the purpose of securing foreign intelligence information? In United States v. United States District Court, 407 U.S. 297 (1972) ("the Keith case"), the Supreme Court held that the Fourth Amendment required warrants for surveillance involving purely domestic national security threats (think Timothy McVeigh). But the Court left open the question of what the Constitution required when surveillance involved agents of a foreign power. Shortly thereafter, Congress enacted (and the president signed) FISA, which, for all intents and purposes, rendered moot the question left open by the Keith case, at least until now.

As the administration's defenders never tire of pointing out (usually in a blatantly misleading way) a handful of lower courts concluded--after Keith and prior to FISA--that the Fourth Amendment did not require the president to seek warrants when conducting surveillance for purposes of gathering foreign intelligence within the United States. These were not Supreme Court opinions, however, and are therefore, at best, only persuasive authority. Had the administration--in 2001--asked for and secured an amendment to FISA that allowed for warrantless surveillance in certain circumstances, that legislation would have immediately been challenged on Fourth Amendment grounds, and the question left unanswered by the Keith court would again be ripe for review.

The administration would undoubtedly have argued that warrantless surveillance in this context is consistent with the Fourth Amendment and would have cited as authority the handful of pre-FISA cases mentioned above. This argument may well have prevailed. But a lot has changed since 1978. The precedents on which the administration would be relying are somewhat stale at this point and a quarter century of experience with FISA has demonstrated that a warrant procedure is both workable and reasonable in the foreign intelligence gathering context. In other words, it is not at all clear that this hypothetical legislation would have survived a Fourth Amendment challenge. I think this is a risk the administration was not willing (and is still not willing) to take.

I suspect that this is why the administration decided not to seek Congressional authorization of the NSA program. The required amendments to FISA would have been challenged immediately, just as the Patriot Act amendments were. While the administration was relatively confident that the FISA amendments contained in the Patriot Act would be upheld by the courts, it was not at all confident that more radical departures from FISA's framework would survive Fourth Amendment challenges. That's why they opposed the DeWine amendment in 2002, and it's why they prefer the alternative DeWine legislation right now (which would subject these secret programs to Congressional but not judicial review). I suspect that the administration's primary objective is to delay for as long as possible any constitutional review of the surveillance programs it's conducting. The longer these programs can avoid serious judicial scrutiny, the more inertia they will have and the more chance Bush will have to stack the Supreme Court with Justices who will interpret executive authority expansively. Specter's bill, while undoing virtually all the protections provided by FISA, would nevertheless require an immediate constitutional review of all current surveillance programs. That's why the administration will not support it. They're willing to subject these program(s) to Congressional review, confident that political pressures will keep Congress from terminating them. But the courts are less predictable. The constitutional questions could come out either way, and the Bush administration is just not willing to take that risk. So they will continue to do whatever they can to keep these issues out of the courts.