Illegal wiretaps may be reviewed in secret

Senate Judiciary Committee Chairman Arlen Specter (R-PA) announced on July 13 that he had negotiated a proposed bill with the White House regarding the National Security Agency's (NSA) surveillance program which illegally circumvents the Foreign Intelligence Surveillance Act (FISA) system of checks and balances. The bill would move challenges to the constitutionality of warrantless spying on US residents into the purview of a secret intelligence court. Although much of the press characterized White House agreement to subject the surveillance program to court review as a victory for civil liberties, critics slammed the legislation as a "sham compromise." Specter, who once called the Bush administration's warrantless spying program "inappropriate" and "clearly and categorically wrong," first introduced the National Security Surveillance Act of 2006 (S. 2453) in February, two months after the program was revealed by the New York Times. Critics of the bill charged that it would significantly limit the degree of judicial approval needed for domestic eavesdropping under FISA. Early versions of S. 2453, which would have required the federal government to obtain permission from FISA courts in order to continue surveillance, put Specter at odds with the White House, which argued that NSA surveillance was exempt from FISA overview. Since February, Specter has worked closely with Bush and other members of the administration to draft a compromise revision, later introducing an amendment making compliance with FISA optional. According to the Washington Post, this revision "left open the interpretation that Bush has the power to conduct other surveillance outside FISA's purview, a possibility administration officials noted with approval." According to the American Civil Liberties Union, recent versions of the bill "would essentially end any congressional investigation into the warrantless NSA program by amending FISA to allow the court to approve NSA monitoring of Americans without any evidence they are conspiring with al-Qaida" while "amending the criminal code to allow wiretapping at the direction of the president without any independent check," effectively creating amnesty for the president and others who participated in surveillance without court authorization–an activity defined as a felony. Although the current version of S. 2453 has not been made public, a draft of the bill was obtained by the Electronic Frontier Foundation (EFF), a nonprofit organization currently engaged in a class action lawsuit against AT&T alleging that the company permitted and assisted the US government in unlawfully monitoring internet communications. According to the EFF, the bill would sweep public NSA spying programs and any further government surveillance under the rug, shuffling legal challenges out of the traditional court system and into the shadowy FISA courts while failing to require court review or congressional oversight of any future surveillance programs. "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 essence, this bill threatens to make court oversight of electronic surveillance voluntary rather than mandatory." Although the bill creates a process for the executive branch to seek court review of its secret surveillance programs, it doesn't actually require the government to do so. The bill would, however, require that any lawsuit challenging the legality of any classified surveillance program–including EFF's class-action suit against AT&T–be transferred, at the government's request, to the FISA Court of Review, a secret court with no procedures for hearing argument from anyone but the government. The bill would further allow the government to prevent the court from disclosing any information about the government's surveillance programs to opposing counsel, regardless of the court's strict security procedures. "When the privacy of millions of Americans is at stake, we deserve more than a closed hearing by a secret court," said EFF Senior Staff Attorney Lee Tien.