- The Washington Times - Sunday, July 30, 2006

Assessing Sen. Arlen Specter’s proposed and administration-blessed deal to authorize the National Security Agency’s Terrorist Surveillance Program is no easy matter. On the plus side, the bill would signal that Congress and the president are in accord on the key aspect of the global war against terrorist organizations. It might, but probably wouldn’t, resolve the more strident objections from civil libertarians, who sometimes seem to think that privacy must always outweigh all other public-policy imperatives, including national security.

Another positive feature of the Specter proposal is that it would curb the rapidly proliferating legal challenges to the Terrorist Surveillance Program and centralize judicial review in the special court known as FISA; without such limitations, we would soon have a wave of anti-NSA lawsuits rivaling anti-tobacco and anti-asbestos litigation. The legislation acknowledges the president’s inherent constitutional powers to collect intelligence. To be sure, this is an entirely unexceptional acknowledgement; the fact that it has been greeted with outrage by its critics only underscores how warped the debate about presidential powers has become.

Unfortunately, these benefits come at a high — and, to us, unacceptable — cost. The quid pro quo, exacted by Mr. Specter, is that the executive would have to submit the Terrorist Surveillance Program for review to the FISA court. There is, of course, nothing wrong with judicial review in appropriate circumstances. However, having the FISA court, comprised of Article III judges, do so in this instance, seems to us constitutionally dubious and could produce lasting adverse consequences. While it might surprise some of the Bush administration critics, who seem to think that the Constitution only constrains the power of the executive, that document properly restrains all of the government’s three branches, including Congress and the courts.

Specifically, the Constitution decrees that judicial power, formidable as it may be, can only be exercised in a narrow range of circumstances, where a specific case or controversy has arisen and there are specific parties who have “standing” to bring the legal challenge. The federal courts, established under Article III of the Constitution, are not meant to render advisory opinions, passing judgment on the probity of a particular executive action. Yet, this is precisely what Mr. Specter’s bill seems to envision, with the FISA court rendering an advisory opinion on the constitutionality of the NSA’s Terrorist Surveillance Program. A great deal is at stake here.

As David Rivkin and Lee Casey point out in National Review, while the battles between the executive and Congress are not new, the new congressional assault on executive power features precisely the tendency to assign to the judiciary the responsibility to oversee the exercise of discretionary power by the executive. In this way, Congress seeks to check the president, while operating without any political accountability and incurring no political price. The problem with the Specter compromise is that the Bush administration, once it seeks an advisory opinion from the FISA court, even voluntarily, would weaken the ability of future presidents to effectively oppose congressional efforts to require such judiciary permissions again and again. The losers would be both the American people and the Constitution.

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