Fair Weather Friend of the Court

NOW THAT THE SUPREME COURT has ruled against the White House on the military detention of U.S. citizens and the presidential institution of military commissions, the next big legal issue seems to be the National Security Agency's warrantless surveillance of international communications. Sen. Arlen Specter, chairman of the Senate Judiciary Committee, recently had the chance to take decisive action--either for or against the president--when he introduced legislation addressing the once-secret NSA program. But he declined the opportunity in favor of a third course: punting the issue to the courts.

This is hardly uncharted territory for Specter. Throughout his career, he has pledged his devotion to the courts and to court precedent whenever it was politically expedient to do so. But when the politics point the other way, no senator is more vocal in criticizing the judiciary.

NSA SURVEILLANCE OF AMERICANS' INTERNATIONAL communications would normally be subject to the Foreign Intelligence Surveillance Act of 1978, which requires that such surveillance generally be conducted pursuant to a court order. Battling criticism of President Bush's decision to authorize a surveillance program that circumvents FISA, the White House has argued that the president's actions were justified by the post-9/11 Authorization for the Use of Military Force (AUMF) as well as the president's inherent constitutional authority to engage in such surveillance regardless of statutory restrictions.

Specter has expressed his disagreement with the AUMF argument but has remained publicly agnostic on the more controversial "inherent authority" issue. His draft legislation doesn't weigh in on the issue, but rather leaves it to the federal courts. After Specter's proposed changes, Section 801 of FISA would read: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers."

Some constitutional scholars, such as Orin Kerr and Marty Lederman, understand this language to endorse the president's circumvention of otherwise applicable FISA requirements. Such a reading seems implausible, though, in light of the Supreme Court's pre-FISA surveillance case United States v. U.S. District Court ("Keith"). There, the Supreme Court considered language indistinguishable from that in Specter's draft. A federal statute limiting surveillance provided that "[n]othing contained in this chapter . . . shall limit the constitutional power of the President to . . . obtain foreign intelligence information deemed essential to the security of the United States." The Court refused to read this language as endorsing surveillance otherwise barred by the statute:

At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers--among other things--to protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral. . . . It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them.

Specter's draft, like the Keith statute, does not weigh in on the president's claim of inherent authority: It leaves the claim entirely to the courts. In a July 24 op-ed in the Washington Post, Specter himself made clear that "[t]he bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist."