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.