In a sure sign of how bleakly they view their current chances in court, the White House and Senate Republicans are both seeking ways to keep out of the halls of justice any meaningful review of the constitutionality of the government's domestic eavesdropping program. But the latest proposal from the Intelligence Committee Republicans is bad on its merits and probably in the end won't allow GOP leaders to protect the program from legal scrutiny. In other words, it's an 0-for-2 effort.
What is striking about the proposed solution to the controversial program — the legislation is called the "Terrorist Surveillance Act of 2006" — is not just that it represents a copout by the Congress in its oversight duties over domestic spying as currently expressed in the Foreign Surveillance Intelligence Act. It is also that the deal would interpose the legislative branch even further into core judicial functions that have for centuries protected our Fourth Amendment rights. It makes a bad problem worse.
According to a summary of the act passed around by Senate staffers this week, it first codifies the extraordinary legal position that the president may authorize warrantless domestic surveillance without justifying it to a judge either before or immediately after it begins. It sanctions by statute at least a 45-day grace period for such surveillance — an eternity, I would imagine, if you were the person whose calls, e-mails, whatever are being monitored without the protection that a judicial finding of "probable cause" usually provides.
If this were all the bill offered, it would be a tremendous victory for the White House and the Justice Department since it would represent clear legislative intent to cede this whole area over to the executive branch. Indeed, that's one of the central legal issues raised in the wake of the disclosure of the existence of the NSA program — how much of a say does Congress have, should Congress have, in limiting the scope of a president's ability as commander in chief to track without a court order "signals intelligence" by U.S. citizens or residents. The act essentially answers that legal question this way — Congress has just rolled over and fetched for the White House.
As if that weren't bad enough, there is, alas, much more not to like about the act. Following that first 45-day "free" window for warrantless surveillance, the executive branch still could avoid any judicial review for its surveillance under the FISA simply by having the attorney general "certify that the surveillance is necessary to protect the United States ... explain why continued surveillance will result in the acquisition of foreign intelligence information ..." and "provide a justification to Congress as to why he cannot take an individual case to FISA." This can be repeated, over and over again, every 45 days. There is no time limit.
That means, of course, that so long as the legislative branch is kept apprised of such surveillance, the executive branch indefinitely can avoid having the judicial branch evaluate the merits of an individual case. The act represents a drastic retreat from our traditional view that when it comes to the Fourth Amendment, only a neutral arbiter — a magistrate or judge — can adequately protect the rights of individuals to be free from government zeal. Whom, ultimately, do you want having the last word on whether such surveillance can continue past the free 45-day window? Politicians or judges?
Before you answer that question, ponder this. The good news under the act is that you only need to worry about such surveillance if the government finds "there is probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization." The bad news under the act is that this "probable cause" determination would be made by some of the same folks who, The Washington Post reported Thursday, "tapped the wrong telephones, intercepted the wrong e-mails or continued to listen to conversations" after warrants had expired under new USA Patriot Act powers. Now let me ask again: whom would you rather have providing the checks and balances over a system that on its face takes away privacy rights?
The New York Times reported Thursday that the act "appeared likely to win approval" from the full Senate. That would be a shame. The NSA surveillance program, as now constituted, violates the Constitution. It does so because it represents a unilateral intrusion by the executive branch into an area of the law where it is not supposed to have such unfettered powers. But that problem does not get solved by this legislation. In fact, in many ways, the problem becomes worse because now Congress becomes a co-conspirator in the plot to keep these surveillance efforts away, free from review by neutral eyes.
Sometimes, a tidy deal is worse than no deal at all.
By Andrew Cohen
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