Law & Society Blog

According to the NYT:

After months of resistance, the White House agreed Thursday to allow a secret intelligence court [the FISA court] to review the legality of the National Security Agency’s program to conduct wiretaps without warrants on Americans suspected of having ties to terrorists. … The aim of the plan, Attorney General Alberto R. Gonzales told reporters, would be to “test the constitutionality” of the program. The plan, brokered over the last three weeks in negotiations between Senator Arlen Specter and senior White House officials, including President Bush himself, would apparently leave the secretive intelligence court free to consider the case in closed proceedings, without the kind of briefs and oral arguments that are usually part of federal court consideration of constitutional issues. The court’s ruling in the matter could also remain secret.

Just so that I get this right: The constitutionality of the secret NSA large-scale surveillance program is to be reviewed by a secret court in secret proceedings with a ruling to remain secret. And we call that what? Judicial review? What ever happened to the principle of open and public adversarial trials as the cornerstone of the American justice system and the currency with which we underwrite the legitimacy of the legal system as a whole? Unless there is a truly compelling reason for spiriting away a constitutional challenge to a potentially unlawful government program from the Article III courts and from public accountability, this “deal” has all the trappings of a dangerous farce, designed to lend further legitimacy to irregular, closed-door, ad hoc proceedings.

UPDATE: Jack Balkin’s analysis of the Bush/Specter deal is a must read. Here’s Jack’s conclusion:

And that curious fact leads us directly to section 801, which, it turns out, is actually the most important part of the bill; the rest is mere camouflage. Section 801 offers nothing less than Congressional imprimatur for the President to go outside of FISA whenever he likes. For section 801 states that “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.” This restores the very language that was repealed when FISA was created to constrain and channel the President’s powers. And if you look closely at the bill’s proposed additions to section 109 of FISA, you will see that FISA would now prohibit electronic surveillance except as authorized by statute “or under the Constitution.” Similarly, 18 U.S.C. 2511(2)(e) used to say that FISA was the exclusive means by which electronic surveillance was legally authorized. The Specter bill changes that to read that electronic surveillance is authorized “under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978.” Get the idea? The President can always do an end run around any procedures that FISA offers as long as he claims inherent authority under Article II. If Specter’s bill passes, all of FISA’s limitations and procedural safeguards won’t be worth the paper they are written on. Specter will have written the Administration’s Article II on steroids theory into law! … Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.

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