The Fate of FISA

I posted briefly about this issue on the Blogger News Network, but this post aims to parse out the nuance of Arlen Specter's proposed fix for FISA. Brace yourself, this could get long.

In case you missed it, the Senate Judiciary Committee passed a bill by a 10 to 8 margin that aims to amend FISA, making it more favorable to the President's policies regarding domestic surveillance and the "war on terror." The text of the bill can be found here and the existing text, for the sake of comparison, of FISA can be found here.

First, the finding of facts preceding the bill demonstrate that Congress, or at least the drafter, is concerned regarding the impact of the doctrine of separation of powers. It seems as though the aim of the legislation is to provide a necessary check on the administration of a program that implicates the very basis of privacy protections in this country. The bill quotes the most important Supreme Court decision examining the balance of power between Congress and the President, Youngstown Sheet & Tube Co. v. Sawyer. Unfortunately, the bill misses the mark, and could unintentionally undo the Article III checks on police power. David Barron expresses these concerns in better words than I ever could in his post at Balkinization.

The goal of the legislation is noble, it aims to imbue the FISA courts with the sole jurisdiction to review the Constitutional validity of the NSA program. The FISA amendment replaces Article VII, which deals with electronic surveillance. The definitions are expanded, and some even added, to incorporate expansive terrorist monitoring programs not initially envisioned by the original legislation. Under the bill, the FISA courts retain the sole original jurisdiction to review surveillance issues. However, the Supreme Court of the United States does retain the right to review the decisions of the FISA courts. This power to review is limited to grants of Certiorari for raising a Constitutional question. The fundamental problem with this structure that worries many academics, pundits, and political theorists is the lack of review outside the FISA structure. The new bill fails to state whether FISA operates as Article III Courts, or as part of a regulatory administration without any kind of Article III power.

Generally speaking, the bill is dangerous because of what it doesn't say. It doesn't explicitly create Article III powers for the FISA courts, which limits the ability of the secret courts to review Constitutional claims. It doesn't provide for judicial review in federal district and appeals courts outside the Supreme Court. Even though it tries to strike an effective balance between the needs of the President to wage the so-called "war on terror" and the protections of the Bill of Rights, it fails to put in place adequate safeguards for Article III review. To accomplish Specter's goal, this bill needs serious amendments.