Breaking away from the books...

While I have plenty of other things to do (like study for the bar) and plenty of other things to post about (like the hostilities between Israel and Lebanon, and the USA's impending role in this apparent non-war), I am going to focus on a topic that was the center of a recurring number of posts and links in my musings over the last year and a half. I am speaking specifically of the NSA Domestic Surveillance program.

Recently, Arlen Specter has been attempting to come to a compromise with the President over the NSA program. Interestingly, while Specter has operated under the assumption that he is saving our civil liberties, his proposed bill may do the exact opposite. I linked a few days ago to another criticism of this particular bill, but now I have had a chance to read the bill (pdf) myself. Marty Lederman points out precisely where Senator Specter has gone wrong. The bill focuses on the balance of powers articulated in Justice Black's decision in Youngstown Sheet and Tube Co. v. Sawyer. Unfortunately, Mr. Specter must have misunderstood the balance created by the court. While the bill states that the NSA wiretaps should be reviewed by the FISA courts, it makes the use of the court's OPTIONAL. The worst part of this bill is it essentially destroys the limitations on Presidential war power articulated in Youngstown, Hamdi, and Hamdan, giving the President power to operate unilaterally without consent from either of the other branches. Effectively, this bill puts the NSA program into the most defferential frame of the Youngstown decision, vitiating any say the Courts will have in the matter. The bill gives the President Carte Blanche to violate the Fourth Amendment. If Mr. Specter truly holds himself out as a defender of civil liberties, then he should seriously consider changing this law to require direct action by the FISA courts, and place the appropriate restrictions on the now ballooning powers of our unitarian President.