NSA Train Wreck

Monday, June 12, 2006

SINCE NEWS first broke of the National Security Agency's warrantless domestic wiretapping, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) has fought for greater congressional and judicial oversight of the program. He's to be commended for that. But the bill he's introduced is not the right remedy.

Mr. Specter describes his legislation as an effort to "send the surveillance program to the Foreign Intelligence Surveillance Court, giving them jurisdiction to decide the constitutionality of the program." He would transfer the various lawsuits challenging the surveillance from the general-purpose courts where they have been filed to the secretive courts that normally handle requests for domestic wiretapping and search warrants in national security cases. That might make sense, if certain safeguards are in place.

But the bill, which the committee could take up this week, does a whole lot more, just about all of it bad. In an effort to win votes, Mr. Specter has turned it from a flawed accountability measure into one that rewrites the rules of domestic surveillance and gives the administration an all but blank check to spy.

The most dangerous provision of the proposal would effectively repeal the current law's requirement that all domestic wiretapping take place under the Foreign Intelligence Surveillance Act. Mr. Specter's bill would amend it to read: "Nothing in this Act shall be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States." The effect would be to withdraw Congress's insistence on regulating domestic spying -- and it would thereby help legitimize whatever the administration might be doing.

The bill also would allow the administration to seek permission from the FISA court system for "an electronic surveillance program," that is, surveillance of large numbers of people who aren't individually named in a warrant. Currently, the court can authorize only individual wiretaps and searches in the cases of people against whom the government presents evidence of terrorist or espionage ties. The bill, however, seems to authorize the administration to ask for a warrant for all kinds of "programs" without showing evidence against any individual, instead showing that the program is lawful and targeted at foreign intelligence collection.

Legislation that authorizes and limits necessary surveillance is surely the ultimate goal. But many key lawmakers, including Mr. Specter, have not been briefed fully on what the NSA is doing, so it is way too early to be legislating -- and all the more dangerous not just to tinker but to fundamentally alter the rules.

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