[Infowarrior] - Wiretap Surrender

[Richard Forno]

Wiretap Surrender
Sen. Specter's bill on NSA surveillance is a capitulation to administration
claims of executive power.
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/14/AR2006071401
578.html
Saturday, July 15, 2006; Page A20

SENATE JUDICIARY Committee Chairman Arlen Specter (R-Pa.) has cast his
agreement with the White House on legislation concerning the National
Security Agency's warrantless surveillance as a compromise -- one in which
President Bush accepts judicial review of the program. It isn't a
compromise, except quite dramatically on the senator's part. Mr. Specter's
bill began as a flawed but well-intentioned effort to get the program in
front of the courts, but it has been turned into a green light for domestic
spying. It must not pass.

The bill would, indeed, get the NSA's program in front of judges, in one of
two ways. It would transfer lawsuits challenging the program from courts
around the country to the super-secret court system that typically handles
wiretap applications in national security cases. It would also permit -- but
not require -- the administration to seek approval from this court system,
created by the Foreign Intelligence Surveillance Act, for entire
surveillance programs, thereby allowing judges to assess their legality.

But the cost of this judicial review would be ever so high. The bill's most
dangerous language would effectively repeal FISA's current requirement that
all domestic national security surveillance take place under its terms. The
"compromise" bill would add to FISA: "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."
It would also, in various places, insert Congress's acknowledgment that the
president may have inherent constitutional authority to spy on Americans.
Any reasonable court looking at this bill would understand it as withdrawing
the nearly three-decade-old legal insistence that FISA is the exclusive
legitimate means of spying on Americans. It would therefore legitimize
whatever it is the NSA is doing -- and a whole lot more.

Allowing the administration to seek authorization from the courts for an
"electronic surveillance program" is almost as dangerous. The FISA court
today grants warrants for individual surveillance when the government shows
evidence of espionage or terrorist ties. Under this bill, the government
could get permission for long-term programs involving large numbers of
innocent individuals with only a showing that the program is, in general,
legal and that it is "reasonably designed" to capture the communications of
"a person reasonably believed to have communication with" a foreign power or
terrorist group.

The bill even makes a hash out of the generally reasonable idea of
transferring existing litigation to the FISA court system. It inexplicably
permits the FISA courts to "dismiss a challenge to the legality of an
electronic surveillance program for any reason" -- such as, say, the eye
color of one of the attorneys.

This bill is not a compromise but a full-fledged capitulation on the part of
the legislative branch to executive claims of power. Mr. Specter has not
been briefed on the NSA's program. Yet he's proposing revolutionary changes
to the very fiber of the law of domestic surveillance -- changes not
advocated by key legislators who have detailed knowledge of the program.
This week a remarkable congressional debate began on how terrorists should
face trial, with Congress finally asserting its role in reining in overbroad
assertions of presidential power. What a tragedy it would be if at the same
time, it acceded to those powers on the fundamental rights of Americans.