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Specter Caves to White House Demands on NSA Bill

Critics say bill is 'blank check' for Bush

by Catherine Komp

July 19, 2006 – Constitutional law experts and civil rights advocates are slamming the latest legislative proposal from US Senator Arlen Specter to address the government’s warrantless wiretapping program.

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After months of negotiations with other lawmakers and Bush administration officials, Specter announced a "compromise" agreement last Thursday. But critics – some of whom are challenging the National Security Agency’s (NSA) spying program in court – say the proposal is a "sham" that eliminates congressional oversight over the executive branch and any meaningful legal review of the program.

"It’s really basically a sell-out," said Shayana Kadidal, a staff attorney with the Center for Constitutional Rights (CCR), a legal organization that filed a lawsuit on related matters against President Bush and the NSA in January. "It’s basically everything the administration wants in order to be able to continue warrantless spying on Americans."

Specter’s latest proposal, one of three different bills he issued, is the "worst" of all the NSA-related legislation introduced thus far, according to Kadidal, who questioned both the lawmaker’s and the media’s use of the word "compromise" when talking about the bill. "If I saw this out of the blue I would think this is pretty much the administration’s draft, and it’s untouched by any other sort of moderating force," he told The NewStandard.

"It’s basically everything the administration wants in order to be able to continue warrantless spying on Americans."

Opponents like Kadidal take issue with a number of provisions, including one that would move existing lawsuits challenging the NSA’s warrantless wiretapping to the ultra-secret Foreign Surveillance Intelligence Court of Review. The court is made up of three Republican judges appointed by former Chief Justice William Rehnquist. It was created to hear appeals to rulings made by the lower Foreign Surveillance Intelligence Court (FISC), which also operates in secret to oversee warrants for wiretapping or searching suspected terrorists or spies in the US.

The Court of Review, like the FISC, also only hears arguments from one side: the government’s. However, it does accept friend-of-the-court briefs from other parties. In the court’s only ruling in 2002, it cited the "president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”

Since the NSA program were revealed last December by the New York Times, numerous suits have been filed against the government claiming violations of the First and Fourth Amendments, Separation of Powers and the Foreign Intelligence Surveillance Act (FISA). Specter’s bill would give Attorney General Alberto Gonzales the option to consolidate these suits into a single case and send it to the Court of Review to decide the legality of the program.

Opponents take issue with a number of provisions, including one that would move existing lawsuits challenging the NSA’s warrantless wiretapping to the ultra-secret Foreign Surveillance Intelligence Court of Review.

"In some ways, [Specter’s bill] does have the smell of judge shopping or forum shopping, as lawyers like to call it," Kadidal said. "It’s going to move all the central issues of these cases to the most secretive court in America… and presumably a pretty friendly sort of court since its one precedent – its one case has a line of dicta that says that the president may have constitutional authority to do surveillance that really can’t even be regulated by Congress."

One of the bill’s provisions also would permit the Court of Review to dismiss a legal challenge to an electronic surveillance program "for any reason."

In a press conference announcing the negotiations last Friday, Specter, the Senate Judiciary Committee chair, admitted that he was advocating legislation on a program he knows nothing about and which the Bush administration "hadn't even told the [congressional] intelligence committees [about], as required by law."

Specter also said he did not want to force the administration to seek a secret-court review of its controversial snooping procedures, and told reporters both he and the president thought it would be an undue burden on Bush’s successors. The bill should "not mandate the president to submit the program to the court," Specter said, "because the president did not want to institutionally bind presidents in the future." The senator did not say why the legislation fails to simply require an initial review.

Despite there being no provision requiring the White House to submit the program to judicial review, Specter said his own objective "is to get this program submitted to the Foreign Intelligence Surveillance Court."

Opponents are also concerned about language that would permit sweeping approval of electronic surveillance programs, as opposed to current FISA law, which requires individual warrants.

Specter said Bush verbally committed to submitting the surveillance program to the Court of Review if Congress passed the bill without changes or if any modifications were "to the president's satisfaction."

Critics point out that with this bill, there’s no guarantee the NSA program will receive judicial review.

"The president could still choose to ignore the optional court oversight on the program," said ACLU Executive Director Anthony Romero in a statement. "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."

Opponents are also concerned about language that would permit sweeping approval of electronic surveillance programs, as opposed to current FISA law, which requires individual warrants.

In an apparent, final dashing of previous restrictions on warrantless surveillance of foreign intelligence agents, the Specter bill would also change FISA, the 1978 law that defines procedures for physical and electronic foreign surveillance of foreign agents or terrorists, by inserting, "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."

The Electronic Frontier Foundation, another organization suing the government over illegal surveillance claims, believes the bill could also open the door for more unconstitutional activity in the executive branch. "This so-called compromise bill is not a concession from the White House – it's a rubber stamp for any future spying program dreamed up by the executive," said EFF Staff Attorney Kevin Bankston in a statement. "In essence, this bill threatens to make court oversight of electronic surveillance voluntary rather than mandatory."

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The NewStandard ceased publishing on April 27, 2007.


This News Article originally appeared in the July 19, 2006 edition of The NewStandard.
Catherine Komp is a contributing journalist.

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