Specter strikes NSA deal (no longer asking to know if it is legal)

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency’s (NSA) surveillance program, GOP sources say. Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.

Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives. Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense.

An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.

In other words, individuals or groups that merely take an interest in a case, such as a privacy-rights advocacy group in the example of the surveillance program, cannot ask for a ruling from a federal court. Because the administration can use questions of standing and other tactics to keep plaintiffs out of court, the requirement that a plaintiff challenge the surveillance program — instead of mandating that the administration itself ask for a ruling on the program’s legality — gives the White House an important advantage.

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