Why The "Compromise" Foreign Surveillance Wiretap Legislation Pending in Congress Is No Compromise: The Bill, and Senator Specter's Strange Reversal on the Issue

By EDWARD LAZARUS
Thursday, Jul. 20, 2006

New legislation

that would rewrite the rules governing foreign surveillance wiretaps is making its way through the Senate Judiciary Committee. The legislation's content is predictable: The GOP-controlled Congress is giving the President essentially what he wants, by approving his NSA wiretapping program.

What's surprising, however, is that it appears Committee Chairman Arlen Specter - previously a critic of warrantless wiretapping - is fully on board with the legislation. Based on his public statements, the key to Specter's support is his belief that the legislation sets up a meaningful judicial review of the whole wiretapping program, as well as of the President's authority in this area.

But as I'll explain in this column, the proposed legislation seems to do the opposite of what Specter says he intends. Far from ensuring meaningful judicial review of the President's power to engage in warrantless wiretapping, it seems the proposed legislation all but ensures judicial approval of the NSA wiretapping program -- even if the President continues to ignore the FISA court process that he now claims he is willing to honor.

Of course, the proposed legislation raises a host of profound questions. But for present purposes I will limit my consideration to the way it subtly (or perhaps not so subtly) changes the basic constitutional questions that will face a court when the program, under the new statute, is ultimately reviewed.

The Controversial Program, and Specter's Prior Position

The Bush Administration's program of secret warrantless wiretaps has been controversial ever since it was first revealed. Critics charge that the Administration violated the Foreign Intelligence Surveillance Act (FISA) by bypassing the secret FISA Court -- which Congress established more than 30 years ago as the exclusive vehicle for authorizing foreign surveillance wiretaps.

In defense, the Bush Administration has claimed that the President's inherent constitutional power to fight the war on terror justified the bypass of Congress' legislation, and thus of the FISA Court.

Specter put himself on record long ago as a skeptic when it comes to such claims. Indeed, as recently as last week, Specter continued to hound the Administration over its handling of the warrantless wiretap issue. Though sharp questioning, Specter got Attorney General Alberto Gonzales to admit that President Bush had personally intervened to scuttle an internal Department of Justice review of the controversial program.

The "Compromise" Legislation That Is Really No Compromise

The legislation that's pending in the Judiciary Committee - touted as a compromise - is meant to resolve the issue, and to quiet those who would make an issue out of Bush's aggrandized view of his own power. The proposed law has been touted as a compromise between the Administration and its critics - one that purportedly has Bush acquiescing in the need to have the FISA Court approve foreign intelligence wiretaps.

In fact, this legislation is no compromise. It aims to render the Executive's compliance with FISA voluntary - and that's Attorney General Gonzales's interpretation, not just my own. It also aims to ensure that no meaningful judicial evaluation of the Bush program will ever take place.

Under FISA, as noted above, the FISA Court is the one-and-only authority for granting permission for foreign intelligence wiretaps; circumventing the FISA Court is illegal, and indeed, a federal crime.

But under the new legislation, this would no longer be the case. Instead, the Executive branch could authorize its very own wiretapping, of its own accord.

To this effect, the proposed legislation adds an explicit disclaimer that the legislation "shall not be construed to limit the constitutional authority of the president to collect" foreign intelligence. And it expressly permits foreign intelligence wiretapping not only as authorized by FISA, but also "under the Constitution" - a clear reference to the President's purported independent power to surveil, which the Administration claims stems straight from our founding document.

This language does something anyone who's been reading the news can see: It incorporates and restates the President's argument regarding warrantless wiretapping - that he has the right to do it, and that this right comes from the Constitution -- instead of in any way backing off from it.

Is it really in any sense a "compromise" if the President can bypass the FISA Court any time he feels like it? Separately, Bush has pledged to seek the FISA Court's permission for future wiretaps. But that pledge is not part of the law, and thus it's a pledge that can be broken or reversed without public notice. What if the President changes his mind - and does so secretly? Surely the Administration may be tempted to route its slamdunks to the FISA Court, and keep its dicey surveillance, in close cases, for in-house authorization, purportedly under the Constitution.

In addition, this language also does something that only those who follow constitutional law may fully appreciate: It tries to control the reviewing court's view of the issue (as well as making sure that this review is not that of the Supreme Court, which recently has been clear about the limits to executive power, but of the FISA court instead).

Here's how the legislation tries to stack the deck in favor of the President's program, ensuring it gets upheld when it gets reviewed in court:

A Naked Attempt to Convince the Court to Rule for the Administration on Warrantless Wiretapping

In both Hamdi v. Rumsfeld and this year's Hamdan v. Rumsfeld, the Supreme Court has rebuffed the Bush Administration's claims to broad inherent Executive Power to decide how to treat detainees from the war on terror. And - crucially for our purposes -- in both cases, the Court has reaffirmed the time-honored thinking governing claims of Executive authority in the field of foreign affairs: the analysis that Justice Robert Jackson laid out more than fifty years ago in the "Steel Seizure case," Youngstown Sheet & Tube v. Sawyer.

In Youngstown, the Court invalidated President Truman's attempt to nationalize the steel industry to avoid a potentially crippling labor strike during the Korean War - on the ground that Truman's plan was contrary to Congress's expressed view of Executive Power to intervene in labor disputes.

Jackson concurred in the decision - but the Supreme Court has since enshrined his concurrence into law, most recently in Hamdi and Hamdan. (Some boosters of the Administration thought that in these cases, the Court might back off from, or reframe, the Youngstown test. But they were dead wrong; instead, the Court embraced it - and embraced it generally, not only in the context of detainees.)

Under the Youngstown analysis, the President's powers over foreign affairs fall into three categories, depending on the actions of Congress:

First, when the President acts "pursuant to an express or implied authorization of Congress," his power is "at its maximum."

Second, when the President acts "in the absence of either a congressional grant or denial of authority," the Executive acts in a "zone of twilight" in which Congressional silence may, in effect, "enable, if not invite" independent presidential action.

And third, when the President "takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

Under the current state of the law, it is readily apparent that Bush's warrantless wiretapping program fits into this third and most problematic category - where the President's power is at its "lowest ebb." After all, in FISA, Congress gave the FISA Court the exclusive power to authorize foreign intelligence wiretaps and it made it a federal crime to circumvent the court's exclusive authority.

The proposed legislation, however, brazenly attempts to catapult warrantless wiretapping out of the third category, and into the first (or, at worst, the second) - with a little sleight-of-hand. After all, the new law expressly authorizes the President to act outside the FISA framework to the extent he can do so "under the Constitution."

The idea, then, is that if Congress says in the legislation that the President can violate FISA, then a Congressionally-forbidden action is neatly flipped -- converted into an expressly-Congressionally-permitted action under Youngstown.

There is an exquisite circularity to all this. Under Youngstown, the President's authority depends on Congress's expression of its will: Has it spoken to permit him to act, kept silent, or spoken to forbid him to act? Under the new legislation, Congress expresses its will by saying it is not limiting the president's constitutional authority - an authority whose force is, under Youngstown, itself defined by Congress's expression of its will!

Will the sleight-of-hand work with the FISA Court (assuming the legislation's bid to designate the FISA court as the exclusive court here indeed works)? Perhaps, and perhaps not.

On one hand, Congress will surely have spoken to this issue, if this bill has passed - and Youngstown says federal courts must listen when Congress speaks, giving Congressionally-blessed Presidential action only weak scrutiny.

On the other hand, though, on matters of constitutional law, the Supreme Court's opinion, as expressed in its precedent, trumps that of Congress - and thus the FISA Court may give little weight to a Congressional attempt to enshrine in a statute what is, in light of Supreme Court precedents like Hamdi and Hamdan, as well as Youngstown itself, a misreading of the Constitution.

Put another way, even if Congress says in a statute that surveillance comes within the President's constitutional powers, that doesn't necessarily make it so.

Specter's Spin on the Bill: Unconvincing, and Contrary to His Prior Position

That brings us, finally, back to Specter.

According to Specter, the beauty of the new legislation is that the Administration, in a supposedly monumental concession, has agreed to let a federal court "consider the [secret wiretapping] program as a whole and make a decision on" its legality.

But what good does federal court consideration do, if the legislation itself has rigged the Youngstown analysis decisively in the President's favor?

Specter, by all accounts, is a very smart man. Is he betting that the reviewing court will simply put Congress' constitutional judgment aside, and look to precedents like Hamdi and Hamdan instead? If so, he may be untroubled by the carve-out for constitutionally-grounded secret surveillance powers, simply because he's confident the Court will hold the President has none.

Or does Specter read the bill as what it purports to be - a rubber stamp of the President's program, and an attempt to force a federal court to rubber-stamp the rubber stamp? If so, is he simply reversing himself because of some kind of political calculation, or re-calculation?

My point is simply this: If Congress wants to endorse what Bush has been doing, it should do so honestly and not pretend that it is setting up a genuine judicial evaluation of the President's power to do what he's been doing. And if Specter has changed his mind, he ought to say so.

The principle at issue here could not be more fundamental: It is that of our Constitution's system of checks and balances. If Congress is going to indeed allow the President unilateral surveillance powers, and if it is even going to try to stop any federal court from standing in the way, then the public should know.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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