[Infowarrior] - NSA Bill Performs a Patriot Act

[Richard Forno]

NSA Bill Performs a Patriot Act

http://www.wired.com/news/technology/1,71778-0.html

By Ryan Singel| Also by this reporter
15:30 PM Sep, 13, 2006

A bill radically redefining and expanding the government's ability to
eavesdrop and search the houses of U.S. citizens without court approval
passed a key Senate committee Wednesday, and may be voted on by the full
Senate as early as next week.

By a 10-8 vote, the Senate Judiciary Committee approved SB2453, the National
Security Surveillance Act (.pdf), which was co-written by committee's
chairman Sen. Arlen Specter (R-Pennsylvania) in concert with the White
House.

The committee also passed two other surveillance measures, including one
from Sen. Dianne Feinstein (D-California), one of the few senators to be
briefed on the National Security Agency program. Feinstein's bill, which
Specter co-sponsored before submitting another bill, rebuffs the
administration's legal arguments and all but declares the warrantless
wiretapping illegal.

In contrast, Specter's bill concedes the government's right to wiretap
Americans without warrants, and allows the U.S. Attorney General to
authorize, on his own, dragnet surveillance of Americans so long as the
stated purpose of the surveillance is to monitor suspected terrorists or
spies.

Lisa Graves, senior legislative counsel for the American Civil Liberties
Union, called the bill "stunning."

"The administration has taken their illegal conduct in wiretapping Americans
without court orders, in violation of the Foreign Intelligence Surveillance
Act and the Constitution, and used it as springboard to not only get FISA
changed to allow the Terrorist Surveillance Program, but to actually, going
forward, not give protections to Americans' privacy rights," Graves said.

Jim Dempsey, the policy director for the more moderate Center for Democracy
and Technology, described the bill's passage out of committee as "light
years or miles beyond the Patriot Act."

"What started out as Sen. Specter wanting to rein in the president's program
has turned on its head and is now not just a legislative ratification of the
program, but an expansion of warrantless wiretapping of Americans," Dempsey
said. "It would allow the NSA to turn its vacuum cleaners on even domestic
phone calls and e-mails of citizens.

"They do all of this in Alice in Wonderland fashion by defining all kinds of
categories of surveillance to be not surveillance," said Dempsey.

Specter, who called NSA's warrantless surveillance a "festering sore on our
body politic," champions his bill, since it allows, but does nor require,
the administration to submit the whole surveillance program to review by a
secretive court. Specter says President Bush promised to submit the NSA
program to the court, if the bill passes.

The bill also strikes from U.S. law a requirement that all surveillance of
suspected spies and terrorists be done in accordance with FISA. But an aide
for Specter disputes that this radically changes FISA or the balance of
powers: Specter considers this to be an update to FISA that moves the law
toward where technology is now, according to the aide, who spoke on
background.

Bush has acknowledged the NSA program monitors Americans' international
phone calls and e-mails without court authorization, but says the program
only targets communications where one side or the other has suspected
terrorist connections.

Feinstein says her briefings lead her to believe the current system needs
only minor changes, such as increasing the number of judges that issue
warrants.

"I have been briefed on the terrorist-surveillance program, and I have come
to believe that this surveillance can be done, without sacrifice to our
national security, through court-issued individualized warrants for content
collection on U.S. persons under the FISA process," Feinstein said Wednesday
in a press release.

That program has recently been declared unconstitutional by a federal judge
in Detroit, and is being challenged by more than 20 lawsuits across the
country.

The bill:

    * Redefines surveillance so that only programs that catch the substance
of a communication need oversight. Any government surveillance that
captures, analyzes and stores patterns of communications such as phone
records, or e-mail and website addresses, is no longer considered
surveillance.
    * Expands the section of law that allows the attorney general to
authorize spying on foreign embassies, so long as there's no "substantial
likelihood" that an American's communication would be captured.
    * Repeals the provision of federal law that allows the government
unfettered wiretapping and physical searches without warrants or
notification for 15 days after a declaration of war. The lack of any
congressional restraint on the president's wartime powers arguably puts the
president at the height, rather than the ebb, of his powers in any time of
war, even an undeclared one.
    * Repeals the provision of federal law that limits the government's
wartime powers to conduct warrantless wiretapping and physical searches to a
period of 15 days after a declaration of war.
    * Repeals the provision of federal law that puts a time limit on the
government's wartime powers to conduct warrantless wiretapping and physical
searches against Americans. Under current law, the president has that power
for only 15 days following a declaration of war.
    * Allows the attorney general, or anyone he or she designates, to
authorize widespread domestic spying, such as monitoring all
instant-messaging systems in the country, so long as the government promises
to delete anything not terrorism-related.
    * Moves all court challenges to the NSA surveillance program to a
secretive court in Washington, D.C., comprised of judges appointed by the
Chief Justice of the Supreme Court. Only government lawyers would be allowed
in the courtroom.
    * Allows the government to get warrants for surveillance programs as a
whole, instead of having to describe to a judge the particular persons to be
monitored and the methods to be used.

A markup of the corresponding House bill, sponsored by Rep. Heather Wilson
(R-New Mexico) was scheduled for Wednesday, but was canceled.

Specter has moved to have his bill voted upon next week by voice vote,
called a unanimous consent motion, according to the ACLU's Graves. Such a
procedure would leave no record of who voted for or against the bill.