ONE BITE AT THE APPLE:

Bush Compromises On Spying Program (Charles Babington and Peter Baker, 7/14/06, Washington Post)

The White House conceded in part because it believes the NSA program will survive constitutional muster and the Specter bill will make it easier to argue that the program complies with congressional statutes as well. "We've always said it's constitutional," said one administration official who was not authorized to speak on the record.

The language acknowledging the president's constitutional authority to conduct intelligence operations also was important to the White House. "We see it as historic because here's a statute recognizing an authority the president says he has," the administration official said.

Still, that language alone might mean little because it did not define the scope of the authority or explicitly suggest that a president did not need to seek court approval for warrants. But at the same time, Specter agreed to repeal a section of the original FISA law that made it the exclusive statute governing such intelligence programs.

The combination of the statement acknowledging presidential authority and the deletion of the exclusivity clause left open the interpretation that Bush has the power to conduct other surveillance outside FISA's purview, a possibility administration officials noted with approval.

Sen. Russell Feingold (D-Wis.) criticized the agreement, saying he will oppose "any bill that would grant blanket approval for warrantless surveillance of Americans, particularly when this administration has never explained why it believes that current law allowing surveillance of terrorist suspects is inadequate."

A thing of beauty--the Executive allows the courts one opportunity to rubber stamp the program or be ignored.

MORE:
The Specter Bill’s Major Shift in Constitutional Authority to Conduct Monitoring (Orin Kerr, 7/14/06)

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.

He just keeps winning....

Posted by Orrin Judd at July 14, 2006 1:01 PM