Analysis: The new roles for courts on NSA spying
on Jul 14, 2006 at 5:59 pm
The proposed federal legislation that the White House apparently is willing to accept on the National Security Agency’s “terrorist surveillance program” sets up a new role for the Supreme Court and for a secret lower appeals court, but leaves wide gaps on how those judicial review processes would work. (See the post just below, for links to other analyses of this proposal, and for a link to the full text of the proposed measure.)
Unless clarified, the draft bill to be sponsored by Senate Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, would appear to make both layers of judicial review one-sided affairs, with only the federal government represented. That would appear to be the result of, first, the new limits on judicial review, and, second, the limits specified in existing law on appellate review.
Others have analyzed the role that the first-level Foreign Intelligence Surveillance Court would exercise under the new legislation. Here, the focus is on the role that would be assigned to higher courts — the court that already exists just above the FISC — the Foreign Intelligence Court of Review — and to the Supreme Court.
The FIS Court of Review would exercise initially much the same role that it now does under existing law — that is, if the first-level FIS Court refused to approve a government request for electronic spying, the government could appeal to the FIS Court of Review. Both of those courts operate in secret (and in offices inside the Justice Department), with only the government represented before them, and nothing in the Specter bill would appear to change that arrangement. Under existing law, the government may appeal to the Supreme Court if it fails to get what it wants from the FIS Court of Review. No appeal by the government has ever been filed in the Supreme Court under existing law, so there is no precedent on how the Justices would handle such a case.
A more significant grant of power to the FIS Court of Review, under the Specter bill, would come in the section (702-b) that deals with the handling of legal challenges to NSA spying that already are pending in lower courts across the country — more than two dozen lawsuits, now in varying stages of resolution. That section would provide a new role for the Supreme Court, too..
The Specter bill would send to the FIS Court of Review (not to the first-level FIS Court) “any case before any court challenging the legality of classified communications intelligence activity relating to a foreign threat,” if the lawsuit challenges the legality of such electronic surveillance. Every such case would go to the Court of Review if, in each case, the Attorney General declares under oath that allowing the case to go forward in the regular court “would harm the national security of the united States.” (It may be assumed that the Attorney General would do so in every such case, since the Justice Department already has sought to have every such pending case dismissed under the government’s “state secrets privilege.”
The Court of Review would have only three issues within its reach: did the individual or group that filed the challenge in a regular court have a right to sue (“standing”), was the challenged activity or program illegal or unconstitutional, and should the party that sued have any constitutional right — if criminal charges are brought against it or him — to see secret information gathered by the spying. Once it made those decisions, the Court of Review would send the case back to the originating court “for further proceedings consistent with” what the Court of Review had decided. Unless a Court of Review decision went on to the Supreme Court, it would be binding on all other courts (and presumably would be, too, if it survived Supreme Court review).
The Specter bill says nothing at all about the procedures the Court of Review would use. If that Court followed its existing procedures under present law, only the government would be involved; the lawyers for the party that filed the challenge would be excluded and they would have no right to file any pleadings. The proceedings would be secret, and the Court of Review would be free to decide not to publish its rulings. The silence of the draft bill on those points leaves the impression that this would be the mode of its proceedings, unless there is some implicit understanding that the Court of Review would have discretion to adopt a different mode..
The law goes on to say that “all litigation privileges shall be preserved.” While it does not say which privileges it means, it clearly means at least the government’s “state secrets privilege.”
Any decision by the Court of Review on any one of the three issues it is authorized to decide, the bill states, “shall be subject to certiorari review in the United States Supreme Court.” But, since existing law only allows the government to take an appeal from a Court of Review decision, the silence of the draft bill would seem to leave that arrangement unchanged. If that is true, then the challenging party would have no rights to file any pleadings in the Supreme Court, and no right to have its lawyers appear there. Again, if there is an implicit understanding that the Supreme Court had discretion to adopt different procedures, it might be inclined to do so.
The Specter bill’s judicial review provisions has a final, catch-all sentence that has occasioned much (negative) comment. It would allow the Court of Review, or a regular court in which spying had been challenged, to dismiss any challenge to a spying program’s legality “for any reason.” The bill is silent on whether such a decision could be reviewed on appeal. Since the government presumably would want all such challenges dismissed, for a variety of reasons, the absence of specified procedures for a challenger to appeal would seem to mean there could be no appeal. This catch-all sentence is separate, in the bill, from all of the remaining provisions in that section, so it clearly was intended to provide a stand-alone — and apparently unreviewable — power..
