View Full Version : Specter's NSA Bill Eradicates Fundamental Liberties

06-28-2006, 08:29 AM
Specter's NSA Bill Eradicates Fundamental Liberties



The White House and Sen. Arlen Specter (R-PA) are nearing a compromise on legislation that would authorize the National Security Agency (NSA) domestic spying program. The bill, unfortunately, as it currently stands, poses a severe threat to fundamental civil liberties.

Since the disclosure of the NSA's domestic spying program in December 2005 by The New York Times and on the heels of the revelations about yet another secret surveillance program, Specter has been working on a bill that would provide the president with the means to protect against terrorism without compromising "the very civil liberties he seeks to safeguard."

Specter's National Security Surveillance Act of 2006 (S. 2453), however, does little to safeguard civil liberties. The bill includes a number of provisions that would eradicate protections against unreasonable searches and seizures that are protected in the Fourth Amendment.

Current law provides two exclusive means for receiving approval for wiretaps on an American citizen's communications. The government can either obtain a warrant for wiretapping under the probable cause requirement of the Fourth Amendment or receive a Foreign Intelligence Surveillance Act (FISA) order under a less stringent requirement. It should be noted that FISA orders are typically only issued for cases involving agents of a foreign power or suspected terrorists, thus the FISA court has long operated with greater flexibility on constitutional issues. The FISA Court is also considered highly deferential to the government's point of view, authorizing the vast majority of FISA order requests.

The Specter bill would provide another approval method for wiretaps. The bill states that the government can also receive communications of American citizens under "the constitutional authority of the executive." Essentially, the bill would allow the federal government to wiretap anyone's phone calls or read anyone's emails without judicial approval or oversight. No longer would the government have to obtain a court's approval to wiretap communications. Also troubling, the removal of the requirement of a search warrant or FISA order would be retroactive to the date that FISA was passed in 1978. The bill, if passed, would thus automatically make legal the NSA's warrantless spying program that dates back several years.

Specter falsely claims that his bill would require the government to go before the FISA Court--a secret court which issues surveillance orders--to justify the NSA domestic spying program. Instead, the government merely needs to claim that the spying program is lawful under the "constitutional powers of the executive," something that the White House has argued all along. If the government does decide to seek judicial approval from the FISA court, Specter's bill would establish a highly questionable process that violates fundamental constitutional principles.

Under the bill, the FISA Court could issue a 90-day authorization for a surveillance program, and unlimited reauthorizations. No other court in the country has ever allowed such an order, because it violates the constitutional principle of particularity -- that, when feasible, the subject and place of a search must have clear parameters.

Our nation's founders designed the Fourth Amendment to allow for reasonable searches, something that the courts have understood to mean searches that have well-defined boundaries over what and who can be searched and limitations on how long the search can last. The authorization of an entire surveillance program would allow essentially unlimited searches of communications from broad sections of the public for an indefinite period of time.

The final troubling provision is that all cases, which challenge "the legality of an electronic surveillance program" would be automatically transferred to the FISA Court of Review. This would short circuit the legal process of legally challenging the administration's surveillance program. Currently, there are over 20 such challenges working their way through the courts.

Without the congressional oversight requirements that Specter scrapped long ago, the National Security Surveillance Act eliminates the checks and balances that ensure that executive power to search and seize communications is not abused in the fight against terrorism. The bill will undergo another round of revisions to accommodate the position of the White House and will be making its way through the Senate Judiciary Committee with the likely backing of Vice President Cheney and the administration.