[Infowarrior] - Senate moves to give Bush more power to wiretap

[Richard Forno]

Senate moves to give Bush more power to wiretap
08/29/2006 @ 12:32 pm
Filed by Brian Beutler
http://www.rawstory.com/printstory.php?story=3077

A bill that expands President Bush's ability to wiretap American phones and
conduct other forms of domestic surveillance will likely appear before the
Senate Judiciary Committee next Thursday, RAW STORY has learned.
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The bill, which was written by judiciary chairman Senator Arlen Specter
(R-PA), and which has been widely and publicly excoriated by Democratic
members of the committee, contains provisions‹such as the institution of
program-wide warrants, and warrants that do not expire for a year‹that would
weaken the strict limits that currently govern the FISA courts.

The Foreign Intelligence Surveillance Act (FISA) was written nearly 20 years
ago and offers guidelines about the legal use of wiretaps on phones inside
the United States. It includes provisions for the use of courts to issue
warrants if the government¹s case against a suspect meets legal scrutiny.

The judiciary committee originally sought to bring the NSA wiretapping
program into compliance with FISA, but in practice, critics claim, Specter¹s
FISA amendments actually give the president freedom to expand his
wiretapping activities.

A statement released by the office of Senator Russ Feingold (D-WI) states
that Specter¹s bill ³gives him even more power than he has asserted under
his illegal NSA wiretapping program.²

A different bill, written by Senator Dianne Feinstein (D-CA) and cosponsored
by Specter will also appear before the committee Thursday. Its provisions
would do more to limit the NSA program than Specter¹s, and would even
mandate that the program face judicial review.

But a Senate aide who works closely with Specter tells RAW STORY that, ³The
White House said they would veto any bill that includes a provision for
judicial review.²

³I can¹t say that the bills work hand in hand,² an aide told RAW STORY
adding that, though Specter¹s bill does not make judicial review mandatory,
³it makes it optional.²

Specter¹s bill, written as a result of that threat, makes concessions to the
White House that go beyond Feinstein¹s legislation, which itself represents
a diminution of the 1978 FISA statutes. FISA, for instance, allows 15 days
of warrantless surveillance in the event of a declaration of war.

Senator Feinstein¹s bill extends that allowance to include the 15 days after
a Congressional authorization of the use of force. Senator Specter¹s bill
deletes the exception altogether.

³Basically," one aide told RAW STORY, "the White House said, Œyou can trust
us, you have our word that we will submit the program for judicial review.
Just don¹t make it mandatory for us.¹²

Senator Feinstein has come out against the new legislation, intimating that
it would legalize the NSA program that was recently declared
unconstitutional by a federal judge in Michigan. If passed by Congress,
Specter's bill could potentially influence the outcome of White House
appeals that may ultimately put the program before the Supreme Court.

In an op-ed cowritten with Senator Feingold in the San Francisco Chronicle,
Senator Feinstein said, ³every time the Supreme Court has confronted a
statute limiting the commander-in-chief's authority, it has upheld the
statute."

Feinstein continued:

    "Congress explicitly banned wiretapping individuals in the United States
without a court order, except in limited circumstances such as emergencies,
when it passed FISA in 1978. That means the president's power to wiretap
Americans without a warrant would be viewed very skeptically by the Supreme
Court. If Congress were to pass Specter's bill, however, the legal analysis
would be much more deferential to the president. By repealing the ban on
wiretapping without a warrantŠ Congress would help the president make his
case.²

Senator Specter, who unlike Senators Feingold and Feinstein does not sit on
the Intelligence committee, and who therefore is privy to less information
about the NSA program, had been critical of its apparent violation of FISA
in the past.

When asked at a press conference recently if it was frustrating to now be in
a position to write legislation for the courts without knowing the details
of the wiretapping program, he responded, ³Is it frustrating? Yes, but I'm
used to thatŠ From the very start, I said, I don't have to know what the
program is, but the court has to know what the program is. There has to be
judicial review before you can wiretap. That's been the tradition.²