The Bush Administraton’s draft of proposed new legislation on electronic spying to gather foreign intelligence would narrow significantly the role that the Supreme Court now has to hear challenges by targets of this kind of surveillance. The draft bill was made public on Friday. The text can be found here. It has not yet been introduced formally in Congress. A description and analysis of changes that would be made in existing law can be found beginning on page 51 of the text.

The Administration’s current program of electronic surveillance of suspected foreign threats is under challenge in a lengthy list of cases in the regular federal courts. A key one, for example, is awaiting a ruling by the Sixth Circuit Cour based in Cincinnati, involving constitutional challenges to the controversial program by individuals and groups that believe they were targeted for overhearding of their international communications. Another case is pending in the Ninth Circuit Court based in San Francisco.

Under existing law, the Supreme Court would have full authority to hear appeals by either side in any of those cases, employing the usual certiorari process.

The draft bill, however, seeks to bar almost any role for lower federal courts in hearing challenges to such eavesdropping, and to circumscribe appeals to the Supreme Court. Under Section 411 of the new bill (beginning on page 43 of the draft), a new procedure would be installed to require — potentially, in almost all cases of challenges to foreign intelligence eavesdropping — any challengers’ lawsuits to be shifted to the secret Foreign Intelligence Surveillance Court. The Attorney General would have the authority to accomplish such a transfer merely by filing an affidavit saying that further proceedings in a regular court “would harm the national security of the United States.” The Justice Department has been making similar claims in all existing lawsuits to try to get them dismissed, so would be expected to continue to do so in the new proceedings.

The FIS Court would have the authority to decide if anyone had the right to sue in the first place (that is, whether anyone had “standing”).and to decide whether the tapping was illegal. This review process would be done in secret, with only the government participating. Any decision by the FIS Court would go first to the existing Foreign Intelligence Court of Review. Any appeal from that special tribunal could go on to the Supreme Court, but only if the U.S. government sought review there.

The proposal also specifies that any of the government’s legal “privileges,” such as the right to prevent any public disclosure of “state secrets,” would apply to the new transferred cases.

These new procedures for virtually all challenges to such electronic spying for foreign intelligence purposes parallel the ones that are now used only for applications by the government to do such eavesdropping. The draft legislation would extend those procedures to any lawsuit in regular court that the Attorney General insisted on being shifted to the secret process with truncated chances for appealing to the Supreme Court.

News accounts regarding the new draft bill suggested that congressional leaders may want to wait to consider any such proposal until after the federal courts rule on the existing challenges to the Administration’s ongoing electronic spying program. The draft bill already has drawn opposition from civil liberties advocates.

The description of changes beginning on page 51 of the text compares the draft bill with current law.

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