NSA Compromise Begs the Question

I think it's wonderful that the White House and the Chairman of the Senate Judiciary Committee are reportedly close to some sort of a deal that would place for the time being the fate of the government's controversial domestic spying program into the hands of specially-appointed, specially-trained surveillance-court judges (who almost always side with the government anyway). I suppose that any movement toward a resolution of the vital legal questions raised by this program is better than no movement at all.

But the purported deal is going to make a meaningful difference to you and me only if regular, ol' federal court judges, including ultimately the Justices of the U.S. Supreme Court, still in the end vigorously and independently evaluate the constitutionality of the National Security Agency's efforts. In other words, the compromise everyone seems to be hinting about only begs the question of whether President Bush has the constitutional power, implied or otherwise, to order warrantless spying. It doesn't answer it.

So far, no one is offering any specifics. But Sen. Arlen Specter (R.- Pa.), who heads the Judiciary Committee, submitted proposed leglislation earlier this month that would allow the NSA to undertake the warrantless surveillance with Congressional approval-- so long as the Attorney General checks in with those special Foreign Intelligence Surveillance Act judges every now and again. The idea behind the bill is that these special FISA courts would act as a post-facto "check and balance" on the otherwise unfettered power of the executive-- with the Senator's branch of government essentially acting as middleman. Put another way, Congress would "fix" FISA-- expand its definitions of acceptable warrantless surveillance-- to bring it into compliance with the program; the cart (the program) coming before the horse (the law).

The problem with a "compromise" like this that appeases both the Republican-controlled White House and the Republican-controlled Congress is that it tries (as the program itself does) to keep away from the federal courts, including the Supreme Court, the power and authority to determine whether the NSA program, in structure or application, is constitutional. In other words, it's all well and good for Congress to give its legal seal of approval to the NSA surveillance methods. But Congress doesn't have the final say on whether government action that intrudes upon individual rights-- like the right to be free from having your conversation monitored without a court order-- violates the Constitution. The courts do. And the other two branches can't by fiat or agreement or expanded FISA statute take away that power.

The most Sen. Specter's so-called compromise could legitimately do, then, would be to evince the current "intent" of Congress to support the White House's foray into warrantless spying. That would be a factor, but only one of many, that the federal courts would have to take in account in determining all of the many issues raised by the President's strategy of broadening his executive power in this fashion. So I'm all for the deal if it brings us closer to the moment when the courts finally review the merits of the spy program-- and Congressional reaction to it. And I'm dead-set against Sen. Specter's baby if it somehow takes the wind out of the sails of a meaningful, independent judicial review. I can understand why the other two branches want to freeze out the third on this-- the legal arguments for the program are weak. I just don't want to see it happen.

By Andrew Cohen |  June 26, 2006; 11:00 AM ET
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