Online Legal Scholarship: The Medium and the Message

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Jack M. Balkin
September 06, 2006

On July 13, 2006, my fellow blogger, Marty Lederman, sent me a copy of a proposed surveillance bill drafted by Senator Arlen Specter’s office. For months, Marty and I had been covering the controversy over the National Security Agency’s (NSA) domestic surveillance program on our group blog, Balkinization. We argued repeatedly that the NSA program was illegal. The Supreme Court’s Hamdan v. Rumsfeld decision in June only seemed to confirm our conclusions.

The mass media reported that Senator Specter had finally reached a compromise with the Bush Administration that would settle the NSA controversy once and for all. According to the papers, the bill would create a judicial procedure for reviewing the NSA program and future programs like it, and the Administration would agree to bring the program under judicial supervision.

As Marty and I studied the bill, it was clear to us that all this was false. The bill was no compromise; it was a complete sell-out. It would insulate the President from judicial review whenever he chose and it largely exempted him from the obligations of the Foreign Intelligence Surveillance Act. After studying the bill, we reported our conclusions on Balkinization. Other bloggers were not far behind. Orin Kerr, who studies cybercrime, and Steve Vladeck, who studies separation of powers, offered their own analyses. The bill was a fiasco, but the reporters who covered the story didn’t have the time or the expertise to figure out how they had been snookered.

Our stories, and others like them, soon gained the attention of the blogosphere and the reporters who regularly read law blogs. The next day, Representative Jane Harman, who serves as the ranking Democrat on the House Select Intelligence Committee, sent us an e-mail. Would we mind if she wrote her views on Balkinization? We were of course delighted.

more: http://thepocketpart.org/2006/09/06/balkin.html