Wiretapping Unbound

Cross posted from TomPaine

Eighteen years ago , Justice Antonin Scalia assumed the prophet’s cloak and forecast threats to the Constitution’s core balance of powers. A threat, Justice Scalia explained, sometimes comes “in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” Today, another wolf scratches at the door: And it is a beast that has already inflicted heavy damage on the Constitution.

Justice Scalia was writing in dissent in a case involving the office of independent counsel, which he believed unconstitutionally took power away from the executive. Today’s wolf bounds from the offices of Sen. Arlen Specter, and it threatens both the Congress and federal courts. The bill responds to allegations published in The New York Times and USA Today that the intelligence agencies of the government, notably the National Security Agency (NSA), are conducting electronic surveillance on Americans in violation of a 1978 law called FISA. The government also has allegedly persuaded telecom companies to give it access to hubs through which most phone and Internet traffic passes. This allowed dragnet collection of call routing and timing data. And these are solely the known unknowns: On July 9, Republican chair of the House Intelligence Committee Peter Hoekstra publicly complained that the Bush administration was running yet more secret surveillance programs without briefing congressional intelligence committees (Hoekstra had been tipped off by sources within the intelligence community). There are, that is, unknown unknowns, too.

The administration’s response to public disclosure has been a rearguard action: decline to disclose facts; refuse to acknowledge the president can be bound by law; and pepper oversight advocates with thinly veiled assaults on their patriotism. In the courts, the Justice Department has responded to suits against NSA spying by invoking the “state secrets privilege.” This doctrine-jerry-rigged by government lawyers after World War II to hide Air Force negligence from a group of tort plaintiffs-is used today to shield executive law-breaking not only in suits against the NSA, but also from suits on behalf of unfortunates who have been wrongfully kidnapped and tortured.

Last Thursday, the government received its first major setback in this strategy, when a California federal court refused to dismiss an NSA suit on state secrets grounds. The court rightly pointed to longstanding procedures that allow federal courts to handle classified materials without compromising secrets. As the Hamdan case recently demonstrated, federal courts can and do push back against government overreaching. The California court decision-along with inklings of what might happen in a similar case in Michigan-is a first sign this is happening on the domestic spying front.

Confronted by an executive branch fighting tooth and nail to prevent both judicial and legislative oversight, the Specter bill guts both judicial and legislative scrutiny. It also gives the executive open-ended license to conduct whatever spying-and possibly other, coercive counter-terrorism measures-it sees fit. The bill thus combines two easy-to-understand principles: No accountability, and no restraint. 

The Specter bill has two provisions worth dwelling on here. First, the bill does away with effective judicial review. In spite of the fact that federal courts have a long history of successfully handling classified evidence, the bill allows the attorney general to cut short any pending case concerning electronic surveillance. These cases are then transferred to the “Foreign Intelligence Surveillance Court,” which will decide any legal and factual issues about electronic surveillance. This is a panel of federal judges selected by the chief justice to review government warrant applications and grant warrants under FISA. In literally unprecedented language, the FISA Court would be empowered to dismiss a suit for “any reason” at all; reasons that might include mere political embarrassment, because the public is better off not knowing the wrongs done in its name.

Transfers of pending cases from one judicial forum to another do not violate the Constitution-but they have a nasty stink about them. Especially here, transfer seems to be a way of fixing ongoing trials without seeming to tinker in the process. But the FISA Court has never wholly rejected a warrant application. It has never been asked before to rule on entire federal programs-a striking and absolute transformation of its role. It sits in secret. It only hears submissions from the government. As ethical as most government lawyers are, any litigator knows what a massive advantage one side has if the other side cannot speak. Indeed, the Framers required that courts hear cases only when two parties to battle out the merits of a case. Although the Specter bill arguably conforms to the letter of the law, it falls far short of its spirit of fairness and transparency.  

But the bill does worse still. The bill sets up an elaborate mechanism for FISA Court approval and congressional oversight of electronic surveillance programs. But then it includes 28 words that render everything that has gone before irrelevant:

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

These 28 opaque words would be a recognition that the president has some “inherent” power to spy that Congress either cannot or has not regulated. The words echo the arguments already used by the administration to justify wiretapping without warrants, torture, unlawful detention, and the transfers of individuals to torture overseas. These 28 words are a sign-off on anything, an unfettered permission slip to the president: Do what you want-just say it’s your “constitutional authority” and you don’t need to tell Congress or the people or the courts. Which is rather like breaking out the gasoline after being told the house is on fire.

Almost incidentally, this provision renders Congress irrelevant. A recent report by the Congressional Research Service listed all of the amendments to FISA in its 28-year history. The list is 29 pages long. The Specter bill is a renunciation of Congress’s constitutional obligations in the guise of an oversight package. Future legislators, confronted with news reports that the executive branch has spied on innocent Americans, and shared intelligence among political appointees, will shrug their shoulders. Nothing to do with us, they will say, go ask the president about his inherent powers.    

Justice Scalia proved right about the office of independent counsel-but only in part. The Clinton impeachment proved the office could be a partisan tool for disrupting government. More recently though, U.S. Attorney Patrick Fitzgerald’s inquiry into the Plame leak showed that internal investigations of the executive can be effective-provided partisanship is eschewed and professionalism embraced.

No similar reason for qualified optimism exists with the Specter bill. From the Iraq conflict to the handling of captured terrorists, the present administration has demonstrated a remarkable knack for barging in with excessive force in ways that fail to respond to threats. Secrecy is then used to cover up the resulting mess. Boundless license and the renunciation of oversight will only be a recipe for even worse disasters

Aziz Huq: “Wiretapping Unbound” (PDF)