Sen. Specter and His Warrantless NSA Surveillance

Sen. Arlen Specter has an op-ed today in the Washington Post asserting that his bill to fix the problem of warrantless electronic surveillance by the National Securuity Agency is the way to go because it will provide us with "surveillance we can live with."

Many disagree. In fact, as Yale Law Professor Jack Balkin writes, this bill is a capitulation and gives Bush everything he wants.

Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.

Note, this is Specter's second attempt at a bill. It's a modification of the bill he originally proposed -- modifications he made after closely consulting with the White House and Dick Cheney in particular. The text of this latest bill, introduced on July 14, is here. If you are not into legalese, a summary is here.

More takes on the bill: Marty Lederman; Glenn Greenwald here ; Christy at Firedoglake and the ACLU.

"This Specter-Cheney bill is nothing short of a capitulation by Chairman Specter to the White House," said Anthony Romero, Executive Director, American Civil Liberties Union. "The 'review' contained in the bill is nothing more than a sham. The president could still choose to ignore the optional court oversight on the program. This new bill would codify the notion that the president is not bound by the laws passed by Congress or the Constitution. It would reward his abuse of power."

"The Senate - and the entire Congress - must provide proper oversight over the executive," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "The law has been broken by the president, and instead of demanding answers, the Specter-Cheney bill would sanction his illegal activity. We urge the Senate Judiciary Committee to stand for the rule of law and reject this proposal."

More from the ACLU's July 17 letter to House representatives:

At its heart, Cheney-Specter eliminates the fundamental requirement of FISA that the Executive Branch get a court order to target any American in the name of national security. It also concocts a scheme for the FISA court to approve a "program" of NSA surveillance without any evidence an American is conspiring with al Qaeda, contrary to the requirements of the Fourth Amendment. The threshold for this dragnet virtually ensures that journalists, lawyers, hotel clerks, and other absolutely innocent Americans will be subject to round-the-clock surveillance of their conversations, indefinitely. And Vice President Cheney also insisted that the law be changed to eliminate the requirement that the courts and Congress be told the names and number of Americans monitored under this sweeping spying program.

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    Re: Sen. Specter and His Warrantless NSA Surveilla (none / 0) (#1)
    by roger on Mon Jul 24, 2006 at 08:50:11 AM EST
    This bill would literally end Constitutional rule in this country. Now, a warrant can issue, only with particularized suspicion, and with individual judicial review. Spector should be impeached for even proposing it.

    Re: Sen. Specter and His Warrantless NSA Surveilla (none / 0) (#2)
    by aw on Mon Jul 24, 2006 at 10:34:11 AM EST
    I contacted my senators. We need to let them know where we stand on this.

    I have converted many pdf documents related to this issue and made them available at the following resource site, all in navigable, linked html files: link This includes all statements and complete transcript and associated documents of the January 20 House Judiciary Democrat's Briefing; related CRS reports, and some collections of related news coverage. All links are to filenames (relative), so the entire collection is downloadable from here: link The two landmark CRS reports are Elizabeth B. Bazan and Jennifer K. Elsea's January 5, 2006 study, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information; and Alfred Cumming's January 18, 2006 work, Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions. Each of these html conversions of the CRS reports contain direct links to the Supreme Court decisions and related laws cited, as well as the ability to directly search Findlaw for cases. May these converted documents prove useful to You. Cheers,

    Re: Sen. Specter and His Warrantless NSA Surveilla (none / 0) (#4)
    by Kevin Hayden on Tue Jul 25, 2006 at 08:32:32 AM EST
    It's a novel approach to crime and punishment. To show my appreciation of the legal principles involved, I plan to emulate it, by finding a pothead and giving him a pound of cocaine.

    The FISA law itself, clearly, does not conform to the Fourth Amendment. Spector's legislation is an outright repudiation of this Amendment. Read it and weep.