Blank Check to Spy
TODAY THE Senate Judiciary Committee will hold a hearing on modernizing the Foreign Intelligence Surveillance Act (FISA), the 1978 law that regulates domestic wiretapping and searches. The hearing is an effort on the part of committee Chairman Arlen Specter to move along his very dangerous bill -- negotiated with the White House -- to put the National Security Agency's domestic surveillance program before the federal courts. In an op-ed in these pages Monday, Mr. Specter described his proposal as a compromise with President Bush to ensure judicial review of the NSA program, which he called "a festering sore on our body politic." Yet his legislation would essentially respond to this festering sore by shooting the patient.
No matter how adamantly Mr. Specter denies that his bill would give Congress's blessing to domestic spying outside of FISA's strictures, it does so explicitly and unambiguously. It adds the following language to a statute that now provides the sole legal means for the government to spy on Americans in national security cases: "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." Mr. Specter argues that the bill doesn't accept the president's assertions of unilateral power but merely acknowledges them. But this is incorrect.
Under the Supreme Court's decades-old understanding, presidential power is at its lowest ebb when the president is acting contrary to the will of Congress, and at its zenith when he is using his own powers in concert with legislative authorization. Right now, to conduct warrantless surveillance domestically Mr. Bush must act at the very least in sharp tension with FISA. Under Mr. Specter's bill, however, the legislature would be explicitly acknowledging an alternative source of authority for snooping. It would thereby legitimize not only whatever the NSA may now be doing but lots of other surveillance it might dream up.
The bill would also allow -- but not require -- the administration to seek warrants for entire surveillance programs, based on the flimsiest evidence against a small subset of the population that would be subject to the surveillance. The result is that consistent with the bill, the administration could either ask or not ask judicial permission to monitor individuals or large groups of people, based on evidence or no evidence. Or it could simply act outside the law entirely.
In his op-ed piece, Mr. Specter challenged critics of his bill to present "a better idea for legislation that would resolve the program's legality." Ironically, several better ideas are already out there, from legislators who, unlike Mr. Specter, have actually been briefed on the NSA program. These proposals vary a lot, from more modest authorizations of the program to efforts to streamline FISA and provide resources so that authorities could get warrants more quickly. Remarkably, none of the legislators who have received detailed briefings has put forward a proposal as dramatic as Mr. Specter's. That should tell senators something.