[Infowarrior] - Specter's Bill Still No Compromise - A Primer

[Richard Forno]

Specter's Bill Still No Compromise - A Primer
http://blog.wired.com/27BStroke6/index.blog?entry_id=1523373

white houseA new wave of stories on the so-called "Specter-Cheney" spying
bill is likely to hit your local paper tomorrow, following today's ACLU
briefing on the legislation.

Reporters from Fox News, the Washington Times, and the Christian Science
Monitor were all in on the call and likely will file stories that won't call
the bill a compromise as reporters called it last week.

In short, the ACLU thinks the bill is more sweeping in handing over
unsupervised surveillance authority to the President than the Patriot Act.

That's not alarmist rhetoric, since it is actually true.

The bill is very complicated and touches on some high-level separation of
powers issues, but I'll try to explain it here more clearly than I have
before.

Background:

In 1978 -- following revelations about unchecked spying on Americans by
Nixon and Hoover --, Congress established a secret court that would allow
the government to wiretap, inside the United States, suspected spies and
Americans working for other countries.  To get the warrant, the government
would have to tell the court who they were spying on, why the government
believed they were a spy and what they wanted to wiretap or search.

This law (the Foreign Intelligence Surveillance Act) stated that this was
the only method for conducting such surveillance and made it a felony to spy
on Americans without a warrant.

Regular criminal wiretaps for catching drug dealers or the mafia had
different standards and were handled by regular courts.  The government had
free rein to do whatever it wanted in terms of the overseas surveillance of
non-Americans (this was mostly handled by the NSA).  The secret court almost
always approved the requests for the surveillance (giving a flat no in only
10 or so out of approximately 30,000 applications).

The Patriot Act loosened some of the requirements, allowed more overlap
between criminal and spy wiretaps and made wiretaps last longer.  The number
of requests to the court rose steadily.  In 2004, the President said that
the government did not wiretap or surveill Americans without a getting a
warrant.  Some minor changes were made to wiretap laws in 2005 when portions
of the Patriot Act were renewed, following more than 20 hearings on its
provisions.

Then in December 2005, the New York Times reported, and the Administration
confirmed, that the NSA was running a massive, warrantless wiretapping
program that captured the contents of phone calls made between an American
and someone overseas that was suspected of being connected to a terrorist
group.  In December 2005 and February 2006, the L.A. Times and USA Today
reported that the government had been getting billions of phone records
documenting American citizens phone calls from major telecoms and analyzing
them to spot terrorists.

While the Administration did not confirm this story, it defended its NSA
wiretapping by arguing that the president has wartime powers under Article
II of the Constitution to wiretap as much as he deems necessary.  The
Administration used the same argument to defend the sham military tribunals
set up for Guantanamo detainees.  That argument was shot down 5-4 by the
Supreme Court in the recent Hamdan decision, which ruled that the Geneva
Convention applied in wartime because it was a treaty agreed to by the
Senate and that was still binding.

A staggering number of lawsuits have been filed against the government and
the corporations that are alleged to have helped with the surveillance.

Some in Congress have been talking about holding hearings on the warrantless
wiretapping.  Some want to tweak the law a little bit to make the process
easier for the government to get warrants, but still keep the secret court
as the only way to spy on Americans.  Others want to re-write the law to
make dragnet programs legal.

Senator Arlen Specter, the head of the Senate Judiciary Committee, seems to
schizophrenically want all three.  He has threatened to issue subpoenas to
telecommunications executives, then supported a bill that would make
dragnet-data-mining programs legal, then co-sponsored another that
implicitly called the program illegal.

Now he has written a bill with the White House that completely re-writes how
surveillance on American soil happens and allows, but doesn't require, the
secret court to review the legality of whole surveillance programs.

The Specter Bill:

Specter's bill is the one that a Washington Post reporter Charles Babington,
among others, called a compromise last week.

It's nothing of the sort.

The bill (this is line by line .doc version created by the ACLU on Tuesday)
has four main prongs:

First, it removes the part of the law that says that the only way to spy on
American soil is through the FISA law.  Now, the proposed bill says that
surveillance is only legal if conducted through the president's inherent
wartime powers or the law.

Currently, there's a head-on legal collision.  The law says surveillance has
to happen through the court system.  The Administration says it is above
that law and can spy on Americans at will because we are at war.  Removing
the exclusivity provision gives credence to and removes the counter-argument
to the executive power claim.

The current law, in interests of flexibility, allows the president to
wiretap at will for 15 days following a declaration of war.  The new bill
oddly removes that provision.

You might think that change means that after a declaration of war, the
president couldn't wiretap at will.  That's not what the change means.  The
removal, if passed, means that Congress hasn't set any limits on what the
president can do in a time of war and therefore, Congress is thereby
recognizing that the president may wiretap Americans at will for as long as
the country is at war.

Second, the bill moves the most crucial part of all the lawsuits against the
government surveillance programs and the telecoms that allegedly are helping
with warrantless surveillance of Americans to the secret court.  There the
government gets to show secret evidence as to why a suit should be dismissed
on the grounds of "state secrets." The other side doesn't get to argue its
side, let alone see the secret evidence.  The bill also gives the court the
right to dismiss any lawsuit on any grounds, e.g. the court doesn't like the
font that the lawyers use.

This is crucial since several judges, including the one hearing the
Electronic Frontier Foundation case against AT&T, have shown that they want
to find a way to preserve the constitutional right to seek redress for
grievances, even though the government wants the cases simply dismissed.
The secret court judges have a history of being deferential to the executive
branch, and a closed proceeding is stacked against the challenger.

Third, the law creates a fall-back position for the administration if a
court happened to hear a challenge to the president's claim of authority and
decides -- as the Supreme Court did in Hamdan -- that the president doesn't
have the right to ignore Congress or the Fourth Amendment.

The new law would allow the government to legally continue doing all the
surveillance it has been doing.  The bill would let the administration
engage in widespread, untargeted information dragnets without having to ask
permission from the secret court.

The administration would, under the bill, have the option of asking the
secret court to rule on the legality of a whole program.  This is something
the original law never envisioned since the court was supposed to approve
instances of surveillance on specific individuals for a specified period of
time. 

This option is what was widely referred to in the press as a compromise or
even an acknowledgement by the administration that its surveillance was on
weak legal grounds.  That's simply inaccurate.

Fourth, there are a huge number of changes in the bill regarding how the
executive branch can bypass the secret court, including one provision that
would make it possible for the government to never have to use the court at
all.

The current wiretapping statute leaves open a provision that allows the
Attorney General to authorize on his own authority wiretaps of foreign
embassies.  That's because foreign embassies have always been thought of as
de facto foreign soil.  The only catch was that the surveillance had to only
catch communications between agents of a foreign power AND that "there is no
substantial likelihood that the surveillance will acquire the contents of
any communication to which a United States person is a party."

The new bill expands the definition of an agent of a foreign power and
removes the prohibition on surveillance that might target Americans.  The
bill also redefines the term Attorney General to mean the Attorney General
and anyone that he designates his authority to.  The Attorney General can
also order any electronic or communications service or a landlord to
secretly help without telling anyone.  They have no legal way to protest
such an order.

The only limitation left is that communications that aren't found to be
about terrorism have to be "minimized," which means blacked out in some
manner after a government agents reads the email or listens to the call and
finds it non-incriminating.

So, under Specter's bill, the Attorney General could order AOL, Yahoo and
Microsoft to send a copy of every instant message to the government, every
credit card company to send a copy of every transaction of every one of its
customers, and every email provider to siphon off to the FBI a copy of every
email sent by and to Americans -- all WITHOUT ever seeing a judge.  And none
of these companies or organizations could say anything publicly or contest
the order in court (though they would get paid for the service).

If this bill passes, the Attorney General could also decide that getting
warrants from the secret court (which they did more than 2,000 times in
2005) was too burdensome.  Instead, he could deputize the
Special-Agents-In-Charge at each FBI branch in the country and instead of
proving to a court that they have reason to spy on someone, they simply
write their own warrants.

There's more to the bill too, but clearly this bill isn't a compromise.

It may be that this is the power that Congress and the American people
believe the executive branch should have, but so far, I haven't seen a
single mainstream news account that accurately describes the bill's radical
re-writing of the nation's surveillance laws.

Perhaps that will change tomorrow.