Concerns About Sen. Specter’s NSA Eavesdropping Compromise

Sneator Senator Arlen Specter announced this morning that he has reached a deal with the White House on legislation to allow judicial review of the NSA’s controversial warrantless eavesdropping programs, according to this Associated Press report.

That’s what he said. But there is no text of a bill yet, so it is hard to evaluate the claim. And based on news reports, there are reasons to see this purported compromise as a few crumbs rather than half a loaf.

Most significant, the review would occur in the special and secretive FISA court rather than in the regular federal judicial system. Presumably, the evidence, deliberations, and even details of the decision reached by this court would be secret. That is hardly the public airing of the issue that is really necessary for our legal system to reach an appropriate conclusion about its permissibility.

Another set of problems involves the plainitiffs in the case. There are none. FISA proceedings are typically “ex parte” — that is, rather than the usual adversarial system with two sides, each presenting its best arguments, there is just one side (here, the government) represented. Worse still, an administration source claims that the bill would allow the Attorney General to “consolidate” litigation over the NSA’s activities that has already been filed in regular courts into this FISA proceeding — essentially, other cases would be preempted. I don’t know if that consolidation power includes cases filed against the phone companies (such as EFF’s suit against AT&T), but the estimate of 100 cases eligible for consolidation suggests that it would include them. After such consolidation, what role will the attorneys for those plainitiffs have in a proceeding before FISA? Presumably the arrangement would not permit the usual give and take of the adversarial system. The capacity to present your case before the court and to test an opponent’s evidence is fundamental to a fair adjudicative process. Depending on the details, both may be lacking here.

Finally, there is no indication of whether there would be any review of the FISA court’s decision. The bill may well seek to eliminate any appeal, even to the Supreme Court. Such a provision would raise thorny consitutional questions about Congress’ power to constrain the Supreme Court’s jurisdiction. But it also raises the more basic problem: does a decision by a secret court without any possibility of appeal really pass muster as “judicial review”?

So, in sum: as best as we can tell from information released so far, the proposed judicial oversight is not transparent, not adversarial, and not reviewable. Memo to Senator Specter: thanks but no thanks.

3 Responses to “Concerns About Sen. Specter’s NSA Eavesdropping Compromise”

  1. I’m sure it’s just a typo, but it seems just too appropriate that “Sneator” is a natural shortening of “sneaky senator”.

  2. Thanks, Evan, I fixed the error, which was indeed just a typo.

    But you do raise an implication on which I want to comment. Personally, I believe that Senator Specter is acting in good faith. He is trying to protect the legislative branch’s institutional prerogatives and evaluate a vital civil liberties issue while at the same time remaining sensitive to both legitimate national security interests and, of course, party loyalty. He could have chosen to just let the program proceed without challenging the President.  So he deserves credit for trying.

    I don’t mean to question his motives, just the (apparent) result of his efforts. If the consolidation is what I believe it is, then the “compromise” is actually worse than the status quo, which at least involves some potential judicial review of the program through the efforts of EFF and many others.

  3. […] The text of the Specter bill on the NSA eavesdropping program is now available here, and a summary here, both via Marty Lederman. In a post yesterday I analyzed the outlines of the proposal based on news accounts; now that actual legislative language is available I see that it is much, much worse than I had thought. While not a model of draftsmanship, the bill is clearly enough more of a capitulation than a compromise. […]