Litigating National Security

News reports say that the administration has reached an agreement with Arlen Specter whereby legislation that liberalizes the President’s power to conduct surveillance under FISA will be passed. In return, President Bush reportedly has agreed to submit the constitutionality of the NSA’s warrantless surveillance program to the FISA Court of Appeals, and ultimately, presumably, the Supreme Court, for review.

The news reports don’t make much sense. I’m all for liberalizing FISA, by, for example, extending to seven days the period within which the executive can order warrantless surveillance on an emergency basis, as the Specter bill reportedly does. But what is going to be submitted to the court? The constitutionality of the new statute? The NSA program’s conformance to the new statute? Or the constitutionality of warrantless surveillance outside the bounds of the new statute? The news accounts don’t say.

The FISA Court of Appeals has already said that the President has constitutional authority to order warrantless surveillance for foreign intelligence purposes regardless of FISA, and that Congress cannot limit the President’s powers in this regard. So, unless there has been a change in the constitution of the FISA court since 2002 that would generate a different ruling, it would seem that any and all of the foregoing questions would be answered affirmatively. But from the news reports, it isn’t possible to tell what is contemplated.

Meanwhile, there is confusion about what the administration proposes to do with detainees in the wake of Hamdan:

Sen. John McCain said White House national security adviser Stephen Hadley told him the administration would base its proposal on the Uniform Code of Military Justice, not its commissions system that the Supreme Court said violated U.S. military rules and had not been authorized by Congress.

But administration officials at hearings earlier this week urged Congress to pass legislation enacting Bush’s military commissions, with some minor changes.

The real problem lies in conceiving the problem in terms of how to “try” terrorism “suspects.” Once the criminal law paradigm is accepted, there is, frankly, no hope. There is a reason why the framers did not put national security in the hands of the American Bar Association.

And, finally, today’s comic relief: Valerie Plame and Joe Wilson are suing Dick Cheney, Scooter Libby and Karl Rove. Oh, what I would give to defend that case! The Wilsons evidently can’t stand the thought of their fifteen minutes of fame coming to an end. Valerie Plame is like an amateur singer with a bad voice and delusions of stardom who won’t get off the stage. Eventually, the impresario will get out the hook, but by that time there will be no one left in the audience.

All stories via Power Line News.

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