In the wake of a federal district court ruling that the NSA domestic spying program is unconstitutional, the administration may now shift attention to compromise legislation offered by Sen. Arlen Specter (R-PA). CNN’s White House correspondent Ed Henry reports:
This [ruling], if anything, could really provide a spark for Republican Senator Arlen Specter, the Senate Judiciary Chairman, who has been critical of this program and has been trying to craft some sort of compromise legislation on the Hill — that could give the administration the cover it feels it needs to push this program forward while also trying to appease Democrats a bit in terms of the legality of the program and whether you need warrants.
The Specter bill is not a compromise, “but a full-fledged capitulation on the part of the legislative branch to executive claims of power.” Bush would receive a “blank check” to continue operating the program. Here are a few reasons why the Specter “compromise” is a sham:
1) Nothing in the Specter legislation requires the Attorney General to obtain court approval before engaging in electronic surveillance. The compromise makes optional what Bush is already required to do.
2) Section 801 of the Specter bill includes the following statement: “Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.” The provision would reserve the right for the president to do an end-run around any procedures that FISA offers as long as he claims inherent authority under the Constitution.
3) The Specter “compromise” scraps the individualized suspicion standard required under the Fourth Amendment, instead allowing the FISA court to authorize the entire NSA surveillance program. Thus, the Specter legislation would presumably allow U.S. persons to be spied upon simply because the spying program was at one time deemed constitutional.
The administration has the burden of demonstrating why it cannot comply with current law — the Foreign Intelligence Surveillance Act (FISA). And until it can do so, no sham “compromises” should be struck.
UPDATE: Some commenters have questioned whether the Specter legislation is relevant, given that the judge ruled the program unconstitutional. I argue the constitutional claims are based on the violation of FISA, and thus, Specter’s attempts to change FISA are still relevant.