What Is in the Specter Bill?
Orin Kerr reports:
OrinKerr.com: The Specter Bill's Major Shift in Constitutional Authority to Conduct Monitoring: I have read the Specter bill.... Section 9... is a "clarification" only if you assume the correctness of the President's more controversial claims to Article II authority. If you accept the more traditional understanding of the separation-of-powers... in... Hamdan v. Rumsfeld... this "clarification" is actually a major reorientation of the role of Congress in foreign intelligence monitoring away from the 1978 framework of FISA.
The key language is the new Section 801 of FISA:
Nothing in this Act [FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.
That strikes me as a pretty major change, given that the purpose of FISA in 1978 was to attempt to regulate that authority.... Similarly, the bill would amend Congress's current command that the Wiretap Act and FISA must provide the exclusive means of conducting monitoring.... Maybe I'm missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.
Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review.