The details of the “compromise” reached between Senator Specter and the Bush Administration have recently come to light, and it’s not too soon to voice opposition. Professor Balkin says it better than I can:
In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of– a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President’s constitutional authority to collect foreign intelligence surveillance.
Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.
The bill is a sneaky sham that would place the imprimatur of the Congress on the sweeping claims of “inherent” presidential power made by the Bush administration. It purports to expand judicial review of warrantless electronic surveillance of United States citizens, but it places that review in a secret court where, as I read the bill and the existing FISA, Department of Justice lawyers will be allowed to argue in favor of the program’s legality, but all other lawyers will be barred. It’s an outrage.
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