Yesterday's significant judicial defeat of the Bush administration in the EFF/AT&T NSA case underscores just how pernicious the Specter FISA bill is, and how urgent it is that it not be enacted. It has been clear for some time that both the federal district judge in the EFF case, as well as the judge in the ACLU case pending in the Eastern District of Michigan, are unwilling to simply roll over and offer the administration the type of blind deference which the Congress and even other courts have been willing to extend in the area of national security. As a result, these cases threaten to subject the administration to that which it fears most: judicial review of its behavior.

First, it requires (if the Attorney General requests it, which he will) that all pending cases challenging the legality of the NSA program (which includes the EFF and ACLU cases) be transferred to the secret FISA court. Thus, the insufficiently deferential federal judges would have these cases taken away from them. Second, it would make judicial review of the administration's behavior virtually impossible, as it specifically prohibits (Sec. 702(b)(2)) the FISA court from "requir(ing) the disclosure of national security information . . . without the approval of the Director of National Intelligence of the Attorney General." That all but prevents any discovery in these lawsuits. Third, it quite oddly authorizes (Sec. 702(b)(6)) the FISA court to "dismiss a challenge to the legality of an electronic surveillance program for any reason" (emphasis added). Arguably, that provision broadens the authority of the court to dismiss any such lawsuit for the most discretionary of reasons, even beyond the already wide parameters of the "state secrets" doctrine.

My question is how much control will it give the government. Firedoglake breaks it down: Cases are currently moving through the federal courts that challenge the legality of Bush’s domestic surveillance program and they have the potential to provide the first substantive oversight of spying taking place outside of FISA. Specter’s legislation would make meaningful judicial review virtually impossible - and thus give the Bush administration freedom to operate as they please without having to worry about Congress or the courts stepping in to check their expansion of powers.

¶ 7/24/2006 05:57:00 PM