NSA Review Must Include the Supreme Court

It looks like the White House and the Senate are on the verge of brokering a deal that would ensure that the constitutionality of the National Security Agency's controversial domestic surveillance program is evaluated by the special secret intelligence courts established as part of the Foreign Intelligence Surveillance Act. That's a good first step. But this judicial review will only be meaningful if the final say on the program's legitimacy is determined by the U.S. Supreme Court.

According to this morning's New York Times' piece by Eric Lichtblau (which I can't link to for you), "if the [FISA] court were to rule the program unconstitutional, the attorney general could refine and submit it or, conversely, appeal the decision to the FISA appellate court and ultimately, perhaps the Supreme Court..." But what if the FISA court initially declares the program constitutional? How then does the case get out of the FISA system and into the regular court process? It is not at all clear that it does-- and that is a fundamental flaw in the proposal, negotiated by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

The NSA program represents a vast expansion of presidential power and a huge intrusion upon constitutional privacy rights. As government action goes, it is simply too dramatic, and potentially too pervasive, to be allowed to avoid review by the U.S. Supreme Court. Moreover, if the program is as legally legitimate as the White House contends that it is, Administration officials (and, for that matter, Sen. Specter) ought not be afraid of a Supreme Court review. Finally, only a thumbs-up from the Court is going to satisfy the concerns of millions of Americans who right now are skeptical-- with gusts up to disgusted-- about the idea of the government eavesdropping on telephone calls without a warrant.

By Andrew Cohen |  July 14, 2006; 9:00 AM ET
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FISA courts are ex parte affairs. Only one side, the executive branch of government, gets to present its views to the Judge issuing FISA warrants.

Who would or could mount a challenge in a FISA court to the whole warrantless surveillance program? How could a full and fair hearing be ensured in what is essentially a secret session? Should we ask Attorney General Gonzales, the justifier of detention, torture and eavesdropping to press the case for privacy there?

At first blush, at least, the compromise appears to be yet one more Bush-Cheney "trust us" after they have repeatedly proved themselves unworthy of trust.

Posted by: Daniel Millstone | July 14, 2006 10:31 AM

Can one manufacture U.S. Supreme Court jurisdiction in this way? Is there a case or controversy?

Posted by: MC | July 14, 2006 11:44 AM

Ultimately the result is subject to Supreme Court jurisdiction. If the monitoring process was not legally structured by FISA the evidence cannot be used at trial. Also, anyone who discovers they have been wrongly monitored must have some cause of action that ultimately could be adjudicated by the Supreme Court.

In point of fact of course, most administrative processes are never reviewed by or passed on by the Supreme Court, so what is different or special about this one?

And I think Andrew over estimates the outrage of the American people. I am sure he just bristles at the idea, but it depends on what is found out during the monitoring. I bet a lot of Americans would not care if the Feds listened in our calls to Aunt Louise in Afghanistan if a major plot was exposed by the same process.

Posted by: Constitutionalist | July 14, 2006 01:44 PM

to think about the real world...

why has gold been so high? weeks before the current throwdown with Israel and Lebanon? think someone has some inside information?

let me put it this way, it is against the law, for you or any company to have more computing power by orders of magnitude than the United States Government....

what would take a high powered commercial computer 3 hours can be done by an agency computer in seconds, or nanoseconds...

capacity? how much capacity do you have to have to contain and analyze all of the geo data that is currently coming in from satellites? you don't know? that's right.

now think slowly, what if you had this ability, and you're watching money flow and financial transactions all over the world.......

coul d you bet the market and win,

does the oppe sthis in the woods? are bears omnivorous?

do you trust bush or this administration? congress?

would they manipulate the resources of this country to get richer and make some deals....

abso effing lute lee



Posted by: hello ordinary folks with little or no ability | July 15, 2006 08:15 PM

on another blog/earlywarning

M. Stewart sayz:

The DHS isn't a joke, it is a pathetic example of so called good intentions gone terribly wrong!!

is that really what is goin on?

I think it's an agency that has been created to be in-effective in order to avoid blame when 3 years from now, when we're not juggling nuckulear options....

that "it just happened that way," "but that it wasn't anyones fault" will be the absolving line and,

that is ab so effing lute krap....

it's been created _to_be_ ineffective so it doesn't challenge what the current administration

the neo con coup

is doing....they didn't expect the world to go into meltdown, they are just supposed to be creating the feeling that there's is danger...

there isn't supposed to be any....but these aholes are so effing stupid that anyone with a friggin cherry bomb is probably aching to lob it at someone while morality goes to sleep and

liberty is blindfolded....who's going to trust the word of a blind girl about who raped her?

she's blind!

there is no effing oversight!

arrest the Bush, Rumsfeld, Cheney, Rice and Negroponte and put a lid on the looting...and put some people in charge that actually know how to govern people

again: regarding using supercomputers for stock market fraud...


this points towards not wanting other people looking over their shoulders rather than incompetence:

Cyber Security Post Still Unfilled

Critics say the yearlong DHS vacancy is evidence that the administration is not prepared for a technological attack.-Brian Krebs 3:00 p.m. ET

why do you leave a post like this unfilled?

on purpose.


regarding using supercomputers for stock market fraud...

Posted by: | July 15, 2006 08:27 PM

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