MB Civic

By Joseph Thai | August 2, 2006 | The Boston Globe

AT HIS confirmation hearings for chief justice of the US Supreme Court, John Roberts likened judges to umpires. They “make sure everybody plays by the rules,” and they “call balls and strikes.” That may be the best analogy to use in exposing the dangers of the compromise bill that Senator Arlen Specter brokered with the Bush administration to submit its warrantless eavesdropping program to court review. While the bill might bring the program before a set of judicial umpires, it would make any pitch by President Bush a strike, no matter how errant. Such a rule would be bad enough for baseball, but disastrous for our democracy.

Specifically, the Specter bill would fix the game for the president in several sweeping ways. Foremost, it would throw out the rule book for domestic surveillance. That rule book, the Foreign Intelligence Surveillance Act, was passed by Congress in the wake of the Watergate scandal. In response to revelations of widespread spying on civilians by the executive branch under cover of “intelligence” gathering, Congress required a warrant for all electronic eavesdropping in the United States, except in rare circumstances. The president has argued that he is not bound by FISA, or indeed by any other law that he believes conflicts with his authority under the Constitution as commander in chief.

The Specter bill backs this expansive vision of executive power. The bill not only repeals the provision of FISA making it the “exclusive means” of domestic wiretapping for intelligence purposes. Incredibly, it also expressly disavows any statutory limits on “the constitutional authority of the p resident” to collect foreign intelligence domestically, including the much looser limits imposed by the bill itself. In other words, the Specter bill makes pitching into the congressional strike zone completely optional for a self-aggrandizing president.

Without statutory limits, the only rules the president must play by are those set forth in the Constitution. In particular, the Fourth Amendment prohibits “unreasonable searches and seizures” and requires individualized warrants supported by probable cause. However, when the president claims wartime authority to conduct mass surveillance without warrants or probable cause, having Congress pinch hit for him greatly improves the odds of scoring a run for his argument. Why? Under our system of checks and balances, as the Supreme Court reaffirmed last month in Hamdan v. Rumsfeld, the president “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” Conversely, as Justice Robert Jackson famously wrote in the Steel Seizure Case, when the president acts with express or implied congressional support, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Thus, by transforming FISA from a prohibition on the president’s power to conduct warrantless eavesdropping to an endorsement of it, the Specter bill would give the president’s claim of unchecked authority some sorely lacking batting power.

In promoting his bill, Specter has boasted that “it is a big gain for constitutional government,” because the president would submit his surveillance program to court review. But this boast comes from left field. Federal courts across the country already are considering the legality of the program. Rather, the Specter bill would give the president the option of transferring all these cases to the Foreign Intelligence Surveillance Court of Review. There, in addition to having the game effectively fixed by the bill, the president would gain the staggering home-field advantages of secret proceedings without an opponent or Supreme Court review if he wins. Finally, nothing in the text of the bill would require the president to submit his program to review by that court. We just have his word for it. However honorable this president’s word may be, we are supposed to be a nation governed by the rule of law, not of men or their promises.

The Specter bill can be considered a gain for constitutional government only under a vision of unchecked and unreviewable presidential power. No rule book, no real umpiring. This vision stands in sharp contrast to that of the Framers of our Constitution, who sought to safeguard liberty through separation of powers.

Even if Congress needs to amend FISA in response to modern threats, it should not leave liberty at the mercy of one man.

Joseph Thai is an associate professor at the University of Oklahoma College of Law, specializing in constitutional and criminal law.