Patrick Radden Keefe originally wanted to call his examination of Sen. Arlen Specter's so-called "compromise" bill on NSA spying, "Don't Shit in my Hand and Call it a Sundae." His editors at Slate declined, alas. Luckily, they seem to have left Patrick alone for the rest of his analysis of Specter's 18-page legal ejecta. Here's a chunk:
Review by the FISA court is optional. Whereas under the 1978 law, the president could authorize surveillance without seeking a warrant for up to 15 days after a declaration of war, Specter's bill eliminates the declaration-of-war provision and expands that 15-day grace period to a year.And Specter is just getting warmed up. Toward the end of the bill, a few sly additions demonstrate that everything else, accommodating though it seemed, was mere preamble. Section 801 proposes to amend FISA by inserting the phrase, "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." In other words, none of the constraints just outlined should be interpreted as absolute, because nothing in the preceding pages counts!This provision, along with the accompanying suggestion that the president can find authorization to wiretap either through FISA or "under the Constitution," effectively codify the Bush administration's controversial argument that the president's authority as commander in chief under Article II of the Constitution gives him virtually unconstrained license to do whatever he sees fit, national-security-wise. According to this view, it's not the NSA surveillance program that's unconstitutional, but FISA itself. Critics have dubbed this the Article II on Steroids theory; and however much he puffs out his chest at the administration, it appears that Arlen Specter has become a subscriber. (emphasis mine)Check out Ryan Singel's analysis, too.