Jack Balkin on the NSA Bill
Jack Balkin has some insightful analysis of the Senator Specter’s NSA Bill over at Balkinization:
In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of– a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President’s constitutional authority to collect foreign intelligence surveillance.
Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.
No wonder why the Bush Administration is willing to “compromise” and support this bill — it’s easy to compromise when you get everything you want.
Is it better to have the Administration flaunting the rule of law while a few in Congress groan? Or is it better to simply change the law to suit whatever the Administration wants to do? The latter has the appearance of legitimacy, but it makes a mockery of the issue. The penalty for the Executive’s violating the law and overreaching in its powers shouldn’t be to get more power, especially not raw power cloaked under the illusion of legitimacy.
UPDATE: Orin Kerr has a new insightful post here.