FISA

In reality, Specter does not want to amend the mandates of FISA so much as abolish them. His bill makes it optional, rather than mandatory, for the president to subject himself to judicial oversight when eavesdropping on Americans, in effect returning the nation to the pre-FISA era. Essentially, the president would be allowed to eavesdrop at will, precisely the situation that led to the surveillance abuses of the Nixon White House and J. Edgar Hoover’s FBI.

Specter’s bill will have three troubling consequences if it becomes law. First, it makes lawbreaking legal. When the New York Times revealed last December that the Bush administration has been eavesdropping without judicial approval for the past four years, it meant that the president has been systematically violating a law that makes such eavesdropping a crime punishable by up to five years in prison. If laws are to have any meaning, then elected officials cannot simply violate them with impunity. Specter’s bill not only virtually guarantees there would be no consequences for this deliberate, ongoing criminality, but rewards and endorses the president’s lawbreaking by changing the law to conform to the president’s conduct.

Richard Nixon infamously told David Frost in a 1977 interview that, by definition, “when the president does it, that means it is not illegal.” Specter, in effect, wishes to make the Nixonian theory of presidential infallibility the law of the land. In the process, he also embraces a more modern and equally extreme theory of presidential power, and that is the second alarming implication of his bill.

Specter’s proposal is based on the plainly erroneous — and truly radical — premise that Congress has no power to regulate presidential war powers, as spelled out in Article II of the Constitution. That is the John Yoo/David Addington “president as monarch” theory that the Bush administration has been peddling to justify everything from the lawless detention of U.S. citizens to the use of torture as an interrogation tool to the president’s deliberate violations of U.S. law governing eavesdropping.

Recent judicial decisions have signaled that the federal judiciary is increasingly willing to do what Congress has so glaringly failed to do in the Bush era — that is, impose minimal limits on presidential power. The Supreme Court’s recent decision in Hamdan v. Rumsfeld was hailed as a historic victory for the restoration of checks and balances. The narrow result of Hamdan was to declare illegal the Bush administration’s military commissions at Guantánamo on grounds that they violated congressional law requiring that such tribunals conform to the Geneva Conventions. But the broader significance of Hamdan was that it reaffirmed the principle that the president is bound by the restrictions imposed on him by Congress, even with regard to the exercise of his war powers. In doing so, the Court rejected the radical Bush claim to unchecked presidential power in the area of national security.

Specter’s bill single-handedly reverses the judicial pushback. With his proposed FISA bill, the senator takes the constitutionally guaranteed congressional power that was just reaffirmed by the Supreme Court and gives it back to the president. It was precisely this theory of unchecked presidential power that the Hamdan decision rejected as alien to the Constitution. Yet Specter’s bill, at its core, endorses that theory, and Specter himself, in a Washington Post Op-Ed, justified his bill by espousing this view of unlimited presidential power. Specter argued: “The president’s constitutional power either exists or does not exist, no matter what any statute may say.”

Specter’s justification for his bill is simply wrong as a matter of constitutional law. As Georgetown law professor Marty Lederman put it, Specter’s constitutional argument is “utter malarkey” and rests on nothing more complex or noble than a “basic misunderstanding of modern separation-of-powers doctrine.” Congress unquestionably has the power — and has always had it — to regulate the exercise of numerous presidential powers. Indeed, when Attorney General Alberto Gonzales testified before Specter’s Judiciary Committee, even he told Specter that it is false to claim that Congress lacks the power to regulate or restrict “inherent constitutional powers” of the president:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn’t mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

Specter may not get it — the main debate among law bloggers recently has been whether he really doesn’t get it or is just pretending. Bush’s handpicked attorney general, however, does get it.

But such discussions may be moot, if Specter has his way. The third and worst thing that Specter’s bill would do is place the president’s FISA decisions beyond any kind of meaningful judicial review forever, and immunize the Bush administration from any real scrutiny of the legality and constitutionality of its conduct. By design, it would all but kill the various lawsuits pending around the country that allege the president and various telecommunications companies acted illegally when they intercepted the communications of Americans without the warrants required by law.

Ever since the Bush administration’s more legally dubious behavior came to light (such as torture, extraordinary rendition and warrantless eavesdropping), blocking judicial review of this conduct has been its paramount objective. To do so, the administration has continuously invoked the “state secrets” doctrine — a legal weapon that presidents have used in very rare cases to block courts from adjudicating particular legal disputes on the ground that doing so would risk disclosure of vital state secrets. Because federal courts traditionally assume that the president acts in good faith when relying on this doctrine, they virtually always accept the government’s argument. The Bush administration took what was a rare instrument and has used it to block virtually every judicial challenge with great success — until very recently.

In two federal cases — one brought by the Electronic Frontier Foundation against AT&T in San Francisco, the other brought in Michigan by the ACLU against the Bush administration — the presiding federal judges have strongly signaled that they intend to scrutinize, rather than blindly defer to, the Bush administration’s legal arguments in defense of its NSA warrantless eavesdropping program. And in a remarkable ruling in the EFF case last week, the court emphatically rejected the Bush administration’s invocation of the “state secrets” doctrine and refused, at least for now, to dismiss the lawsuit — the first time a federal court has squarely rejected a president’s assertion of this claim. Along with Hamdan, this ruling leaves no doubt that courts are finally resisting the Bush administration’s attempts to place its conduct beyond the reach of the law.

The Specter bill, however, solves this problem for the administration. Section 702(b) of the Specter bill, titled “Mandatory Transfer for Review,” protects the administration in numerous ways from meaningful judicial review:

First, the bill requires that all pending cases challenging the legality of the NSA program be transferred to the secret FISA court, if the attorney general so desires, which he will. Second, it makes judicial review of the administration’s behavior virtually impossible, as it specifically prohibits, in Sec. 702(b)(2), the FISA court from “requir(ing) the disclosure of national security information … without the approval of the Director of National Intelligence of the Attorney General.” That all but prevents any discovery in these lawsuits. Third, it authorizes, in Sec. 702(b)(6), the FISA court to “dismiss a challenge to the legality of an electronic surveillance program for any reason.” Arguably, that provision broadens the authority of the court to dismiss any such lawsuit for the most discretionary of reasons, even beyond the already wide parameters of the “state secrets” doctrine.

Beyond its impact on those pending cases, the Specter bill would virtually ensure that all legal questions relating to warrantless eavesdropping — including the question of whether warrantless eavesdropping violates the Fourth Amendment’s requirement of probable-cause warrants for all searches — be decided by the FISA court, which means that 1) only one side would be present in court to argue these issues (the Bush administration) and 2) all proceedings, including the decision itself, might very well be secret.

It is one thing for specific warrant applications to be conducted in secret, with only one side present, and with even the decision itself always sealed from the public — the standard operating procedures for the FISA court. But those procedures are plainly inappropriate for deciding critical questions of constitutional law that determine the protections guaranteed by the Bill of Rights to all Americans against the government. The parameters of the Fourth Amendment and decisions as to whether our highest government officials have been continuously violating it cannot possibly be determined in secret and then kept secret from American citizens. Yet the Specter bill would ensure exactly that disturbing, and quite extraordinary, result.

Beyond telecom amnesty, the FISA Amendments Act also wildly expanded the Government’s power to conduct warrantless surveillance of telephone calls and emails.  In large part, the bill was intended to legalize the illegal Bush NSA program that had caused so much faux controversy among Democrats.  As Yale Law Professor Jack Balkin put it:  ”Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”; separately, Balkin contended that Obama voted for the bill because, as President, he himself would want the same powers Bush had to intercept people’s communications without bothering with court approval.

When trying to placate his numerous supporters furious over his reversal, Obama insisted he voted for the bill with “the firm intention — once I’m sworn in as president — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future” (that promise caused his then-large band of faithful followers to evangelize that Obama only voted for the bill to make sure he won the election, so that he could then use his majestic power to fix civil liberties abuses of the type he had just voted for; that was when people were still willing with a straight face to invoke the 11-dimensional chess justification for everything he did).  Needless to say, it would have been unhealthy in the extreme holding one’s breath for that “we’ll-fix-it-when-I’m-President” promise to be fulfilled, as — more than 2 years into his presidency — nothing like it has remotely happened. 

Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law’s expanded warrantless eavesdropping powers violated the Fourth Amendment.  Aside from its warped and radically enlarged “state secret” doctrine, the Bush administration’s standard tactic for avoiding judicial review of their illegal eavesdropping programs was a two-step “standing” exercise grounded in extreme cynicism:  (1) they shrouded their eavesdropping actions in total secrecy so that nobody knew who was targeted for this eavesdropping, and they then (2) exploited that secrecy to insist that since nobody could prove they were actually subjected to this eavesdropping, nobody had “standing” to contest its legality in courts (that’s how the Bush DOJ got an appeals court to dismiss on procedural grounds a lower court ruling that their NSA program broke the law and violated the Constitution). 

In the case brought by the ACLU, the plaintiffs were a variety of human rights activists, lawyers and journalists (including Naomi Klein and Chris Hedges), who argued that both they and their sources have a reasonable fear of being subjected to this expanded surveillance, and that fear– by rendering them unable to perform their jobs and exercise their Constitutional rights — constitutes sufficient harm to vest them with “standing” to challenge the new eavesdropping law.  In response, the Bush administration argued — as always — that the plaintiffs’ inability to prove that they were actually targeted by this expanded surveillance precluded their suing; their mere “fear” of being targeted, argued the Bush DOJ, was insufficient to confer standing to sue.

In late 2008, a lower court judge granted the Bush argument and dismissed the ACLU’s lawsuit on “standing” grounds.  On appeal, the Obama DOJ — needless to say — faithfully adopted exactly the Bush argument to demand dismissal of the ACLU’s lawsuit on procedural grounds of “standing,” i.e., without assessing the merits of whether this law violates the Fourth Amendment.  

But today, a three-judge appellate court dealt a serious blow to the Bush/Obama tactic for shielding government eavesdropping from judicial review (i.e., placing secret executive surveillance above and beyond the rule of law).  The unanimous court ruled that the plaintiffs’ fear that they will be subjected to this expanded warrantless eavesdropping is reasonable given the sweeping powers the law vests in the Executive, that these fears substantially impede their work, and that these impediments constitute actual harm sufficient to allow them to challenge the constitutionality of the FISA Amendments Act:

This may sound like a legalistic development but its significance extends far beyond that.  Unlike the bastardized Bush/Obama “state secrets” weapon for avoiding judicial review, ”standing” is actually a legitimate and important constitutional restriction on a court’s jurisdiction.  The idea is that courts are permitted to resolve only actual disputes between actual parties where the defendant’s conduct has uniquely injured the plaintiff in direct ways; we don’t want courts to be free-floating, omnipotent tribunals that issue binding answers to every abstract political question.  They are empowered to issue legal rulings only when there is an actual “case or controversy” before them involving parties directly and uniquely harmed by the challenged conduct.

But what the Bush DOJ and then the Obama DOJ have done is manipulate that important “standing” limitation beyond all recognition into a weapon of full-scale presidential immunity.   If one were to accept their tactic, a President need only break the law in total secrecy and prevent anyone from finding out what exactly he did and to whom he did it.  With that secrecy in place, the DOJ can then tout that secrecy as a means of preventing any judicial challenges to the President’s conduct — which is another way of saying that the President has placed his conduct outside of the rule of law (because we did it in secret, everyone is unable to sue over it).  Obviously, if one can break laws but then block courts from adjudicating allegations of lawbreaking, then one is — by definition — free to break the law.  That has been the case thus far with the Bush administration thanks to the warped doctrines it pioneered and the Obama DOJ then swallowed whole.  

This danger is particularly acute in the post-9/11 world where so much of what the Executive branch does of any significance — I’d say most of what it does — takes place behind a wall of secrecy.  To allow Presidents to escape all legal challenges on “standing” grounds merely because they managed to conceal the identity of the victims of their lawbreaking would be, in essence, to have laws that apply to Presidents only in theory but not in reality.

Today’s ruling puts at least some brakes — for now — on that license of lawlessness.  It rejected the Bush/Obama claim that citizens must prove they have been targeted by an illegal presidential program before they have the right to ask a court to declare it illegal.  Instead, a plaintiff’s reasonable fear that their rights are being violated due to enactment of an allegedly unconstitutional law  — combined with actual harm suffered as a result of that fear — suffices to allow them to challenge the legality of those actions.  It is, of course, possible that the Supreme Court can review and reverse this ruling, but the Second Circuit is a well-regarded court — situated on the level immediately below the Supreme Court — and this well-reasoned decision will have significant sway.  At the very least, this is an important ruling in eroding what is easily one of the worst political problems plaguing America in the post-9/11 world: the ease with which Presidents and their underlings can insulate their secret actions from the rule of law.

The most intensely fought civil liberties battle of 2008 — the one waged over FISA and telecom immunity — ended the way most similar battles of the last eight years have: with total defeat for civil libertarians. Even before Democrats were handed control of Congress at the beginning of 2007, the Bush administration had been demanding legislation to legalize its illegal warrantless NSA eavesdropping program and to retroactively immunize the telecom industry for its participation in those programs. Yet even with Bill Frist and Denny Hastert in control of the Congress, the administration couldn’t get its way.

Not even the most cynical political observer would have believed that it was the ascension of Harry Reid and Nancy Pelosi that would be the necessary catalyst for satisfying Bush’s most audacious demands, concerning his most brazenly illegal actions. If anything, hopes were high that Democratic control of Congress would entail a legislative halt to warrantless eavesdropping or, at the very least, some meaningful investigation and disclosure — what we once charmingly called “oversight” — regarding what Bush’s domestic spying had really entailed. After all, the NSA program was the purified embodiment of the most radical attributes of a radical regime — pure lawlessness, absolute secrecy, a Stasi-like fixation on domestic surveillance. It was widely assumed, even among embittered cynics, that the new Democratic leadership in Congress would not use their newfound control to protect and endorse these abuses.

Yet in July 2008, there stood Pelosi and Reid, leading their caucuses as they stamped their imprimatur of approval on Bush’s spying programs. The so-called FISA Amendments Act of 2008 passed with virtually unanimous GOP and substantial Democratic support, including the entire top level of the House Democratic leadership. It legalized vast new categories of warrantless eavesdropping and endowed telecoms with full immunity for prior surveillance lawbreaking. Most important, it ensured a permanent and harmless end to what appeared to be the devastating scandal that exploded in 2005 when the New York Times revealed to the country that the Bush administration was spying on Americans illegally, without warrants of any kind.

With passage of the Act, Democrats delivered to the Bush administration everything it wanted — and more. GOP Sen. Kit Bond actually taunted the Democrats in the Times for giving away the store: “I think the White House got a better deal than they even had hoped to get.” Making matters much worse, by delivering this massive gift to the White House, the House undid one of its very few good deeds since taking over in 2006: its galvanizing February 2008 refusal to succumb to Bush’s rank fear-mongering by allowing “The Protect America Act” to expire instead of following the Senate’s lead in making it permanent.

Adding the final insult to this constitutional injury, Barack Obama infamously violated his emphatic pledge, made during the Democratic primary, to filibuster any bill containing telecom immunity. With the Democratic nomination fully secured, Obama blithely tossed that commitment aside, instead joining his party’s leadership in voting for cloture on the bill — the opposite of a filibuster — and then in favor of the bill itself. The photographs of the celebratory, bipartisan signing ceremony that followed at the White House — where an understandably jubilant George Bush and Dick Cheney were joined by a grinning Jay Rockefeller, Jane Harman and Steny Hoyer — was the vivid, wretched symbol of what, in 2008, became the fully bipartisan assault on America’s basic constitutional guarantees and form of government.

The FISA fight was the destructive template that drove virtually every other civil liberties battle of the last year. Time and again, Democrats failed to deliver on a single promise. They failed to overcome a GOP filibuster in the Senate to restore habeas corpus, which had been partially abolished in 2006 as a result of the Military Commissions Act that passed with substantial Democratic support and wholesale Democratic passivity. Notably, while Senate Democrats, when in the minority, never even considered a filibuster to block the Military Commissions Act, it was simply assumed that the GOP, when it was in the minority, would filibuster in order to prevent passage of the Habeas Restoration Act. And filibuster they did.

A similar scenario played out with the attempt in February to redress America’s torture crisis by enacting an amendment to the Defense Authorization Act compelling all government agencies, including the CIA, to comply with the Army Field Manual when interrogating detainees. The most immediate effect of such a law would have been to impose an absolute ban on the use of waterboarding, along with any other coercive tactics — torture techniques — which the Manual does not explicitly authorize.

Knowing that the president would veto the bill, the GOP allowed a floor vote on the Army Field Manual amendment. Signaling what would be his year-long, soul-selling captivity to the far right of his party, John McCain — despite years of parading around as a righteous opponent of torture — voted against the torture ban. The bill passed both houses largely along party lines, President Bush vetoed it as promised, and the House then failed to override the veto. The path taken was slightly different, but the outcome was the same: total failure in reining in Bush’s abuses. Indeed, by the end of 2008, civil libertarians could point to many defeats suffered in the Democratic-controlled Congress, but not a single victory.

The fate of civil liberties in the judiciary was much more mixed, punctuated with several significant victories. Undoubtedly the most important win was the Supreme Court’s June decision in the Boumediene case, which struck down as unconstitutional one of the worst constitutional assaults of the Bush era: Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantánamo detainees and prohibited them from challenging their detention in a federal court.

The Court ruled, by a precarious 5-4 margin, that Guantánamo detainees could not constitutionally be denied the right to have their detentions reviewed by an American federal court. That seminal ruling paid quick dividends for some of the detainees. Last month, a Bush 43 federal judge — the same jurist who had originally upheld the Act’s abolition of habeas review for Guantánamo detainees and was ultimately reversed by the Boumediene court — conducted a habeas hearing for six Algerian-Bosnian detainees imprisoned without charges at Guantánamo for the last six years.

The judge concluded that the Bush administration had no credible evidence to justify the detention of five out of the six detainees and thus ordered them released immediately. Four of the five are now back in Bosnia, while the fifth awaits release. Without the Boumediene ruling, the truly heinous provisions of the Military Commissions Act would still be operative and would continue to empower the government to hold those detainees — along with dozens if not hundreds of others — indefinitely and without charges. Boumediene is one of the few civil liberties bright spots of this decade.

The Bush administration, also earlier this year, suffered another judicial defeat at the hands of a very conservative, Bush 43-appointed federal judge, when that judge emphatically rejected the administration’s claim that Bush aides Harriet Miers (former White House counsel) and Josh Bolten (former White House chief of staff) are entitled to absolute immunity from Congressional subpoenas. That dispute, which arose from the House Judiciary Committee’s efforts to investigate the notorious firing of nine U.S. attorneys, dispensed with one of the administration’s most radical tools — a claim of absolute, unconstitutional executive privilege — for shielding itself from accountability.

One of the most potentially damaging judicial developments of the year was a horrendous ruling issued in July by the conservative Fourth Circuit Court of Appeals in the case of Ali Saleh Kahlah al-Marri. The al-Marri court actually upheld the president’s claimed authority to detain legal residents and even U.S. citizens in a military prison as “enemy combatants,” rather than charge them in a civilian court with a crime. But the damage done by that ruling was mitigated substantially when the U.S. Supreme Court announced just two weeks ago that it has agreed to review the al-Marri ruling, and civil libertarians are cautiously optimistic that the Court will likely reverse it.

For the last seven years, Democrats have repeatedly cited GOP political dominance to excuse their wholesale failures to limit, let alone reverse, the devastating war waged by the Bush administration on America’s core liberties and form of government. With a new Democratic president and large majorities in both Congressional houses, those excuses will no longer be so expedient. As dark and depressing as these last seven years have been for civil libertarians, culminating in an almost entirely grim 2008, there is no question that the Obama administration and the Democrats generally now possess the power to reverse these abuses and restore our national political values. But as the events of the last 12 months conclusively demonstrate, there are substantial questions as to whether they have the will to do so.