Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania says he has negotiated a deal with the White House to support a bill that would submit the administration’s controversial no-warrant National Security Agency surveillance to a court for constitutional review.
It’s hardly clear that this is a healthy step toward greater respect for American citizens’ privacy.
The National Security Agency surveillance program revealed in news stories last December was almost certainly illegal, although administration spokespeople have defended it as part of a president’s inherent wartime powers. Sen. Specter’s bill would make such surveillance legal, but with more safeguards and some judicial review.
The 1978 Foreign Intelligence Surveillance Act (FISA) is, by its own language, the statute that exclusively governs such intelligence programs. It provides that when the NSA wants to wiretap or do surveillance on an American it must get a warrant from a special FISA court that meets in secret and hardly ever refuses a request. The Bush administration conducted surveillance on hundreds, perhaps thousands of Americans without a warrant and without informing the FISA court.
Only time will show Americans whether this was wise or necessary given the diffuse nature of the threat posed by international terrorism.
But it was clearly done outside the law established by Congress for such surveillance. It is unlikely that Congress would have refused to update that law, but the administration chose to operate secretly for almost five years.
Sen. Specter’s proposal, drafted in cooperation with administration lawyers, would make it easier for the NSA to get approval for surveillance between an American and a foreign person (one suspected of terrorist ties). It would give the NSA a week rather than 72 hours to conduct surveillance while waiting for the FISA court to approve a warrant, and would give the Justice Department an unlimited number of attempts to revise a surveillance request to get the FISA court’s approval.
President Bush has agreed, if Congress passes this law, to voluntarily submit his program to the FISA court for a review of its constitutionality.
Part of the agreement is that the law would divert all the lawsuits currently pending to the FISA court instead of to ordinary federal courts.
Calling this a sincere attempt to provide statutory authority for this surveillance falls short on several grounds.
For starters, this bill authorizes even more widespread surveillance of Americans than the current program undertakes. President Bush’s agreement to submit the program to the FISA court is voluntary, not mandatory. Given that several lawsuits are under way to test the constitutionality of the program, it is far from clear what would be gained by having the matter adjudicated in a secret court that has no experience dealing with constitutional questions.
Kevin Bankston is an attorney for the Electronic Frontier Foundation, which is a plaintiff in one of those lawsuits. “The operating philosophy behind this bill is ‘intercept first, target later,’” he said. “That is, they seek to operate a dragnet, to intercept as many phone calls and e-mails as possible and then see if they have any actionable information about terrorist activities or plans.”
This is the reverse of the way surveillance was done even during the heyday of the Cold War. Nice try, Sen. Specter, but this proposal falls short of the protection ordinary Americans need from a government inclined to be overenthusiastic at breaching privacy.
While there may be the occasional exception, it should be possible to confront terrorism without suspending the requirement that surveillance on an American requires the modicum of judicial oversight involved in getting a warrant, and a timely one, at that.