Specter Gives Up the Game-- The Sham NSA Bill

JB

Although the judicial review provision is worrisome, it is by no means the most troubling thing about this bill. Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, 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.

But first, the details: The bill authorizes the FISA court to permit "electronic surveillance programs"-- the key point being that these involve domestic surveillance of U.S. citizens-- for periods up to 90 days, periods which are indefinitely renewable. Authorization is on a program by program basis, rather than on the basis of the particular individuals who are being watched. All legal challenges to the surveillance program-- including challenges to the use of evidence in other prosecutions or litigation-- can be moved to the secret FISA court if the Attorney General states that national security demands it. The FISA court, in turn, has the power to dismiss a challenge to the legality of the program "for any reason." This provision seems puzzling: literally it says that the court can dismiss legal challenges to programs for any reason, whether good or bad, and even if the objections to the programs are well founded. In fact, the provision makes sense only if its purpose is to allow the FISA court to immunize Presidential surveillance from legal attack.

To obtain permission for an electronic surveillance program the Attorney General must declare in an affidavit that the program cannot be performed under existing FISA procedures and that the communications intercepted are communications of or with "(A) a foreign power that is engaged in international terrorism activities or in preparation therefore; (B) an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore; or (C) a person reasonably believed to have communication with or be associated with a foreign power that is engaged in international terrorism activities or in preparation therefore or an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore."

Note that under this test a U.S. citizen can be wiretapped even if he is not involved in terrorism as long as at some point he has been in communication with someone involved in terrorism, even if he or she does not know that the person was involved in these activities. Thus the Specter bill clearly allows electronic eavesdropping of citizens whom the Administration does not suspect of terrorism. And under the bill's terms, this surveillance is not limited only to conversations with persons whom the Administration does suspect of terrorism. As the bill is currently written, once a person has been "in communication with" a suspected agent of terrorism-- even for the most innocent reasons-- he or she is marked as a lawful target of surveillance. In order to prevent the obvious possibilities for abuse, the statute also requires that the Attorney General offer and implement what are called "minimization procedures." (These procedures are outlined in FISA at 18 U.S.C. section 1801(h)).

But that's not all. The new Bill amends section 102 of FISA to allow the President to engage in electronic surveillance without seeking a court order for up to a year as long the Attorney General is willing to state that all he is doing is intercepting communications by foreign powers or their agents. This changes the old FISA provision section 1811 that allowed warrantless surveillance for up to 15 days after a declaration of war. No declaration of war is necessary now, and the program can continue for a year instead of 15 days.

What is interesting-- and puzzling-- about these two provisions is that even though they are quite broad, they do not seem to be adequate to justify the existing NSA program, at least as it has been reported in the press. That program appears to have involved intercepting a wide swath of electronic communications, some with no overt connections to terrorism, which were then whittled down through analysis and data mining to produce a series of leads for future surveillance. What is mystifying about this bill, in short, is that even if it were passed, the NSA would immediately have to go beyond the authority it grants.

And that curious fact leads us directly to section 801, which, it turns out, is actually the most important part of the bill; the rest is mere camouflage. Section 801 offers nothing less than Congressional imprimatur for the President to go outside of FISA whenever he likes. For section 801 states that "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." This restores the very language that was repealed when FISA was created to constrain and channel the President's powers. And if you look closely at the bill's proposed additions to section 109 of FISA, you will see that FISA would now prohibit electronic surveillance except as authorized by statute "or under the Constitution." Similarly, 18 U.S.C. 2511(2)(e) used to say that FISA was the exclusive means by which electronic surveillance was legally authorized. The Specter bill changes that to read that electronic surveillance is authorized "under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978." Get the idea? The President can always do an end run around any procedures that FISA offers as long as he claims inherent authority under Article II. If Specter's bill passes, all of FISA's limitations and procedural safeguards won't be worth the paper they are written on. Specter will have written the Administration's Article II on steroids theory into law!

In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of-- a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President's constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.