A Stitch in Haste

It's hard to keep up with all the developments regarding the conspiracy between the White House and Senate Judiciary Committee Lapdog Chairman Arlen Specter to "legitimize" the NSA domestic spying program — one summary is available here.

There's a lot of nonsense in the National Security Surveillance Act of 2006, and others are chronicling it. I would like to spackle in one observation that I have made before:

The bill would subject the program to a review to determine its legality by the Foreign Intelligence Surveillance Court (FISC), established by the 1978 Foreign Intelligence Surveillance Act (FISA).

A few hasty stitches on this meaningless "safeguard" --

--The FISA Court, staffed by federal judges chosen by the Chief Justice, is not designed to be a court of constitutional review. It is designed to issue FISA warrants (something it does quite efficiently — a fact that the apologists for warrantless wiretapping never want to discuss). Of course, any federal judge is competent to review the constitutionality of a law — they do it all the time. But they can do it responsibly and legitimately only when properly briefed by the parties and with the full resources normally available to a judge. That is not the case with the FISC or with its proposed "review" of the warrantless wiretapping program. This will be a strictly "ex parte" review. The FISA judges will only have the information that the NSA chooses to give it, and there will be no adversarial party, such as the ACLU or CATO Institute, arguing against it. Not to impugn the judges, but this "review" would be a kangaroo court.

--As I've blogged previously: whatever happened to the distinction between a law, or program, being valid facially but not as applied? How can you review the domestic spying program outside of the actual work it does? Just because a "program" may be constitutional and legal in the abstract, that does not mean it will be acting constitutionally or legally in every instance. This is not a difficult concept: the death penalty is "constitutional and legal," but not in every capital case. The federal income tax is "constitutional and legal," but not every IRS interpretation is. A party being infringed upon by the government has a due process right to a review of the infringement in his particular context. An aged declaration that "the program" is valid is meaningless and an affront to the principles of justice.

The Terrorist Surveillance Program (which is nothing of the kind — if we're so sure that they're terrorists then why not get a warrant?) is a program for wiretapping of American citizens on American soil. The people targeted by it — American citizens on American soil — deserve better than some Orwellian gobbledygook and creative wink-wink sham processes for validating it.

Shame on Arlen Specter and the other Judiciary Committee Republicans for this shameful vote against due process, judicial review, civil liberties and the American way.

Similar thoughts at Balkinization.