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Analysis: Spying, and the role of the FIS Court

The special Foreign Intelligence Surveillance Court, left in the dark for more than four years about the Bush Administration’s war-on-terrorism program of secret, warrantless eavesdropping on Americans, is now being drawn into the center of the energetic debate over that program. As Congress, the White House and advocacy groups maneuver over what, if anything, to do about that program, a key question has arisen over the assignment the FIS Court is to have from here on in monitoring electronic spying on the homefront.

But, without waiting for that question to be answered, two advocacy groups that are sharply critical of the program have made a bold move to make sure the special Court is not left on the sidelines any further. It was a bold gesture, because normally that Court hears only one side of any eavesdroppnig request. The Court’s judges reportedly have been briefed on the program by Administration officials (apparently at the Court’s request), but they presumably heard essentially the same defense of the program that the Administration has been making in public, plus some information on the scope of the spying as it touches Americans.

Volunteering as amici, the Constitution Project and the Center for National Security Studies filed a lengthy memorandum, “in response to” the government’s defense. Although there is no known case now before that tribunal, the two groups said they wanted “to assist the Court, and its individual members, in connection with any deliberations that may be undertaken on this important legal issue.”

Their argument is blunt: “The President’s attempt to circumvent FISA [the Foreign Intelligence Surveillance Act] and bypass this Court’s review not only violates the clear mandates of the statute and the Fourth Amendment, it constitutes the very ‘exercise of arbitrary power’ by the Executive that the Founders sought to prevent” by the separation of powers within the national government.

They reminded the Court that the 1978 Act set up the special Court as the sole mechanism for authorizing electronic spying that occurs inside the U.S. But, they noted, the Attorney General has made no request for the Court to approve the domestic spying program, and the Court has given no such approval. “The President’s asserted justifications for his disregard of FISA and this Court,” the brief argued, “have no grounding in law.”

The gesture, obviously, is an attempt to reinforce any skepticism that the special Court’s judges already have about the program. But it has added significance because there is an ongoing controversy in Congress about whether the Court is to be excluded entirely from any monitoring role as the spying continues. The Administration, confident that the President already had the power to order the surveillance of Americans engaging in international telephone calls or electronic messaging that the government thinks might be linked to terrorism, has been resisting any legislative effort to hand the FIS Court a role. Some in the Senate, apparently, have been sympathetic to that position.

Reports circulating in Washington Wednesday suggested that Republican members of the Senate Intelligence Committee had made a deal with the White House that included some role for the FIS Court. But no specific legilslative language incorporating that deal has emerged publicly yet.

It is a certainty that, if the Court is written out of the process, or if any role assigned to it is less restrictive of the spying than that aurthorized by the 1978 Act, there will be major controversy on those terms, probably equal in intensity to the controversy that has already arisen over whether the Administration broke the law by starting the domestic spying program in the first place

Indeed, controversy already has developed over a move by the chairman of the Senate Judiciary Committee, Pennsylvania’s Republican Sen. Arlen Specter, to draft legislation that he has said would assign the FIS Court the task of ruling on the constitutionality of the existing program. The Specter draft that is now making the rounds in Washington says that it is “the belief of Congress that it is appropriate for an Article III court to pass upon the constitutionality of electronic surveillance programs that may implicate the rights of Americans.” But, among the details of this lengthy draft, advocacy groups have discovered considerably more than authority for the Court to judge the constitutional question. They have found what they deem a proposed sweeping expansion of the government’s domestic spying. The FIS Court, for example, could be asked to authorize an entire surveillance program, instead of individual instances of monitoring, in what critics are arguing amounts to a “general warrant.”

After the New York Times in an editorial Tuesday challenged the Specter bill, saying it would give the government’s spying “legal cover,” Specter reacted angrily in a letter to the editor, insisting that his proposal does no such thing.

There also is a secondary issue surrounding the tasks that may be given to the FIS Court. That is the question of whether other courts would be shut out of any review of the existing program’s constitutionality. In at least four pending war-on-terrorism cases in lower federal courts, individuals have raised questions about whether they were subjected to the secret, no-warrant monitoring and, if so, whether charges against them or their convictions have been undermined by the program’s alleged illegality.

In addition, two civil lawsuits have been filed to challenge the legality of the program — one by the American Civil Liberties Union in Detroit, the other by the Center for Constitutional Rights in New York City.