I have an article up today at NRO explaining why I think the imminent intelligence reform deal, though flawed, is a good one. It restores critical surveillance authority so that we'll be able to collect intel on our enemies overseas, and it grants immunity to the telecoms to encourage their continued cooperation in our national defense — which is critical because their expertise in how communications networks operate is unparalleled.
Naturally, there is unhappiness on the Left and among those who see no problem with turning our national security issues into legal problems to be resolved by judges insulated from the voters. Unfortunately, the legal profession reliably lines up in the latter category, and Senator Arlen Specter is one of its ardent supporters. Thus, Sen. Specter has issued a press release criticizing the compromise bill "because it does not require a judicial determination that what the telephone companies have done in the past is constitutional." (Emphasis added.) He opines that it "is totally insufficient to grant immunity for the telephone companies’ prior conduct based merely on the written assurance from the administration that the spying was legal."
The provision that the bill will be the exclusive means for the government to wiretap is meaningless because that specific limitation is now in the 1978 Act and it didn’t stop the government from the warrantless terrorist surveillance program and what the telephone companies have done. That statutory limitation leaves the president with his position that his Article II powers as commander in chief cannot be limited by statute, which is a sound constitutional doctrine unless the courts decide otherwise. Only the courts can decide that issue and this proposal dodges it. [Emphasis added.]
There are myriad problems with this. First, the telecoms are not part of the government; the question is whether they acted legally, not constitutionally. The Constitution limits government action, not the telecoms.
In reality, the dispute over the NSA program is a battle between the political branches over a political question about a political power: who controls the use of surveillance, Congress or the president? Critics of presidential power have tried to convert this question into a legal issue fit for resolution by the courts; they have used the telcoms as a proxy because the administration can't effectively be sued. Consistent with this tack, Specter conflates the telecoms and the administration as if they were one and the same, with equal "constitutional" standing.
In fact, (a) the administration acted constitutionally (more on that in a second), and (b) the telecoms could be deemed to have acted legally even if the administration had acted unconstitutionally — if the telecoms relied in good faith on an ostensibly valid request for assistance by the government. (Do you think the DEA would have many drug informants if the informants could be prosecuted for undercover drug deals they do at the request of DEA agents? Of course not. That is why, for example, the federal rules of criminal procedure provide a defense for those who have substantial grounds to believe their actions have been authorized by the government.)
The immunity in the compromise merely ends the litigation against the telecoms who can show they acted based on such substantial grounds. It does not end the political debate over the extent of presidential power, which Specter and others are fully free to pursue. What the compromise bill means, though, is that this political issue will be worked out in the normal political process. It will not be worked out in unrepresentative court cases, where self-described "public interest" groups like the ACLU pretend to represent us and the result is dictated not by the impartial ballot box but by judges, some of whom have shown themselves to be politicized in a most unseemly way.
On the question whether the administration acted constitutionally, Sen. Specter fails to mention that the courts have already weighed in on the question he claims only they can decide. The Foreign Intelligence Surveillance Court of Review, the court created by Congress in FISA to be the specialized, authoritative court on surveillance issues, explained in 2002 that a statute cannot strip the president's constitutional powers and therefore that the president continues to have authority to conduct warrantless national security surveillance against foreign threats despite FISA's imposition of a court-authorization requirement. In so saying, the Court of Review was reiterating the rationale of federal appeals court cases decided both before and after FISA was enacted in 1978.
Notice that Sen. Specter concedes the President's Article II argument is "sound constitutional doctrine," yet criticizes the compromise bill, which is premised on the notion that the telecoms had every reason to draw exactly the same conclusion. That is not only curious; it's untoward. Like the Congress, the executive is one of three equal branches of government. Its actions are presumptively constitutional. When Congress acts, it expects the executive and the courts to respect this presumption of validity — Congress does not assume that the courts will "decide otherwise," especially when its position seems "sound" based on existing precedent. Why should the president be entitled to less deference?