The Specter Bill, the TSP, and the FISA Court: Some Thoughts

Almost lost amidst the busy news day yesterday was word that the Administration and Senator Specter have reached a deal on limited judicial review of the "Terrorist Surveillance Program" in the FISA Court. I argued in an earlier post that a bill along similar lines introduced by Senator Schumer was bad policy [although Marty Lederman pointed out the upside], but I doubted that it was actually unconstitutional. I think this is even worse policy, and may actually be unconstitutional, based on press reports -- although maybe not on reading the text itself.

I had posted some analysis of the earlier draft of the Specter bill a bit earlier, but much of it is rendered moot by the new bill, a copy of which is available here [hat tip: Marty Lederman.]

The bill is remarkable in a number of respects, including that it does not require the President to submit the "TSP" to the FISA Court, but does require transfer of a whole host of other actions to the FISA Court, where proceedings are ex parte and often secret. The relevant provision is part of section 4(b) of the bill:

    In any case before any court challenging the legality of classified communications intelligence activity relating to a foreign threat, including an electronic surveillance program, or in which the legality of any such activity or program is in issue, if the Attorney General files an affidavit under oath that further proceedings in such court would harm the national security of the United States, the court shall transfer the case to the Foreign Intelligence Surveillance Court of Review for further proceedings under this subsection.

If I'm reading this right, that means that in every single lawsuit, anywhere in the United States, including criminal cases, an affidavit from the Attorney General certifying a challenge to the product of potentially unconstitutional intelligence gathering is enough to require the court to transfer the case to the FISA Court of Review. Might this have to happen, then, in cases like Padilla?

It gets worse. The FISA Court of Review

shall have jurisdiction as appropriate to determine standing and the legality of the communications intelligence activity or program to the extent necessary for resolution of the underlying case. All proceedings under this paragraph shall be conducted subject to the procedures of section 106(f), except that the Foreign Intelligence Surveillance Court of Review shall not require the disclosure of national security information to any person without the approval of the Director of National Intelligence or the Attorney General, unless in the context of a criminal proceeding disclosure would be constitutionally required.

Once that's done, the court sends the case back to the "originating" court.

And then there's my favorite subsection, which provides that "[t]he Foreign Intelligence Surveillance Court of Review or a court that is an originating court under paragraph (1) may dismiss a challenge to the legality of an electronic surveillance program for any reason." (emphasis mine). ANY reason?? How about "I'm tired, and don't feel like working today?" Really -- ANY reason?

I'm really not sure what else to say at this point. The bill does allow for broader review on certiorari than is usually available in FISA cases under 50 U.S.C. [sec.] 1803, and so therefore might avoid any Exceptions Clause problems, but even if this is constitutional, how is it remotely plausible or practical?

To reiterate: Under the Specter bill, any lawsuit, anywhere in the country, that challenges "the legality of classified communications intelligence activity relating to a foreign threat, including an electronic surveillance program, or in which the legality of any such activity or program is in issue," gets bounced back-and-forth between the court in which it is presently pending and the FISA Court of Review, so that the Court of Review, and not any other court, can determine the constitutionality of the surveillance.

I'll need to dwell some more on the potential constitutional issues that the bill creates. My gut is that it may not create any, but it's too early to say with any authoritativeness. But politics aside, this strikes me as ludicrous policy, even for those who support the constitutionality of the TSP.