Sen. Arlen Specter's (R-Pa) "compromise" bill (PDF) with the Bush administration over NSA domestic spying is getting roundly criticized by leading newspapers. The bill would allow the government to request that any lawsuit that attacks the legality of classified surveillance programs be transferred to the secret FISA court system. And it would allow but not require the administration to seek court review of its program.
The Washington Post finds the bill no compromise at all - except on Specter's part.
The cost of this judicial review would be ever so high. The bill's most dangerous language would effectively repeal FISA's current requirement that all domestic national security surveillance take place under its terms. The "compromise" bill would add to FISA: "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."
It would also, in various places, insert Congress's acknowledgment that the president may have inherent constitutional authority to spy on Americans. Any reasonable court looking at this bill would understand it as withdrawing the nearly three-decade-old legal insistence that FISA is the exclusive legitimate means of spying on Americans. It would therefore legitimize whatever it is the NSA is doing -- and a whole lot more.
The bill even makes a hash out of the generally reasonable idea of transferring existing litigation to the FISA court system. It inexplicably permits the FISA courts to "dismiss a challenge to the legality of an electronic surveillance program for any reason" -- such as, say, the eye color of one of the attorneys.
The bill also allows FISA review of the entire program at issue, not just specific cases. Writes the LA Times:
If the FISA court — and its appellate division — ruled that a proposed surveillance program was unconstitutional, the government apparently could petition the Supreme Court for review. But the high court would be ruling not on a specific case or controversy but on the legality of the program as a whole, which is hard to square with its long-standing refusal to issue "advisory opinions."
Specter is right that the wiretapping should be tethered to FISA. But the way to do that is to require the government to secure the FISA court's approval for individual NSA surveillance operations. Specter deserves credit for demanding that the administration obey the law when it spies on Americans. But his compromise solution is too much of a compromise and not enough of a solution.
And the NY Times puts the "compromise" in context - as part of the president's ongoing effort to expand presidential power. If anyone thought the Guantanamo decision by the Supreme Court would result in compromise from the White House, think again.
The bill the president has agreed to accept would allow him to go on ignoring the eavesdropping law. It does not require the president to obtain warrants for the one domestic spying program we know about — or for any other program — from the special intelligence surveillance court. It makes that an option and sets the precedent of giving blanket approval to programs, rather than insisting on the individual warrants required by the Constitution. Once again, the president has refused to acknowledge that there are rules he is required to follow.
And while the bill would establish new rules that Mr. Bush could voluntarily follow, it strips the federal courts of the right to hear legal challenges to the president’s wiretapping authority. The Supreme Court made it clear in the Guantánamo Bay case that this sort of meddling is unconstitutional.
At any rate, that is the view from the MSM.