Senate panel approves wiretapping

A Republican-controlled Senate panel on Sept. 13 approved legislation that would authorize President Bush's controversial warrantless wiretapping program in return for his pledge to submit it for a review by a secret court. By a 10-8 party-line vote, the Senate Judiciary Committee approved SB2453, the National Security Surveillance Act, which was co-written by the committee's chairman Sen. Arlen Specter (R-PA) and Vice President Dick Cheney. That bill gives the president the option of complying–or not–with the Foreign Intelligence Surveillance Act (FISA) and the protections of the Fourth Amendment. Specter, who called National Security Administration's (NSA) warrantless surveillance a "festering sore on our body politic," champions his bill, since it allows, but does not require, the administration to submit the whole surveillance program to review by a secretive court. Specter's bill would broadly revamp the existing law on domestic electronic surveillance–the FISA, enacted in 1978 in response to the government's abusive spying on citizens. FISA created a special secret court to issue warrants for domestic eavesdropping on foreign spies and terrorists. In contrast, Specter's bill concedes the government's right to wiretap US citizens without warrants, and allows the US Attorney General to authorize, on his own, dragnet surveillance of Americans so long as the stated purpose of the surveillance is to monitor suspected terrorists or spies. With two and a half weeks before Congress recesses for the Nov. 7 elections, the White House has made it a priority to win approval of its highly secretive NSA program to intercept calls and emails between the US and overseas in its hunt for terrorists. Sen. Russell Feingold (D-WI) and other committee Democrats complained that the bill guts FISA, but Specter defended it by saying he was seeking to put the program under judicial review. Democrats and civil rights advocates contend the bill would expand the president's authority to eavesdrop on US citizens without a warrant. The bill: ¨ Redefines surveillance so that only programs that catch the substance of a communication need oversight. Any government surveillance that captures, analyzes and stores patterns of communications such as phone records, or email and website addresses, is no longer considered surveillance. ¨ Expands the section of law that allows the attorney general to authorize spying on foreign embassies, so long as there's no "substantial likelihood" that a citizen's communication would be captured. ¨ Repeals the provision of federal law that allows the government unfettered wiretapping and physical searches without warrants or notification for 15 days after a declaration of war. The lack of any congressional restraint on the president's wartime powers arguably puts the president at the height, rather than the ebb, of his powers in any time of war, even an undeclared one. ¨ Repeals the provision of federal law that limits the government's wartime powers to conduct warrantless wiretapping and physical searches to a period of 15 days after a declaration of war. ¨ Repeals the provision of federal law that puts a time limit on the government's wartime powers to conduct warrantless wiretapping and physical searches against US citizens. Under current law, the president has that power for only 15 days following a declaration of war. ¨ Allows the attorney general, or anyone he or she designates, to authorize widespread domestic spying, such as monitoring all instant-messaging systems in the country, so long as the government promises to delete anything not terrorism related. ¨ Moves all court challenges to the NSA surveillance program to a secretive court in Washington, DC, comprised of judges appointed by the Chief Justice of the Supreme Court. Only government lawyers would be allowed in the courtroom. ¨ Allows the government to get warrants for surveillance programs as a whole, instead of having to describe to a judge the particular persons to be monitored and the methods to be used. Lisa Graves, senior legislative counsel for the American Civil Liberties Union, called the bill "stunning." "The administration has taken their illegal conduct in wiretapping Americans without court orders, in violation of the [FISA] and the Constitution, and used it as a springboard to not only get FISA changed to allow the Terrorist Surveillance Program, but to actually, going forward, not give protections to Americans' privacy rights," Graves said. Jim Dempsey, the policy director for the Center for Democracy and Technology, described the bill's passage out of committee as "light years or miles beyond the PATRIOT Act." "What started out as Sen. Specter wanting to rein in the president's program has turned on its head and is now not just a legislative ratification of the program, but an expansion of warrantless wiretapping of Americans," Dempsey said. "It would allow the NSA to turn its vacuum cleaners on even domestic phone calls and emails of citizens. "They do all of this in Alice in Wonderland fashion by defining all kinds of categories of surveillance to be not surveillance," said Dempsey. Democrats on the Senate intelligence committee are complaining that the NSA has played politics in support of the secret program to intercept phone calls between alleged terrorists in the United States and abroad. On July 27, shortly after most members of the committee were briefed on the controversial surveillance program, the NSA supplied the panel's chairman, Pat Roberts (R-KS), with "a set of administration approved, unclassified talking points for the members to use," as described in the document. Among the talking points were "subjective statements that appear intended to advance a particular policy view and present certain facts in the best possible light," Sen. John D. Rockefeller IV (D-WV) said in a letter to the NSA director. The cleared statements included "I can say the program must continue" and "There is strict oversight in place... now including the full congressional intelligence committees," as well as "Current law is not agile enough to handle the threat posed by sophisticated international terrorist organizations such as al-Qaida" and "The FISA should be amended so that it is technologically neutral." One element particularly troubling to the Democrats was the statement that there was "strict" congressional oversight of the program, because, as one senior Democrat said, committee members are still awaiting requested documents such as the original authorization by President Bush that initiated the program. Democrats claimed a partial victory on the wiretapping issue when they won Judiciary Committee approval of another measure that could effectively ban the security agency's eavesdropping program. That plan, drafted by Senator Dianne Feinstein (D-CA), would affirm the FISA, requiring court approval for eavesdropping, as the "exclusive" means of authorizing wiretaps in the United States against suspected terrorists and spies. Specter also voted in favor of Feinstein's measure. That set the stage for the unusual spectacle of the Judiciary Committee–and its chairman–supporting two proposals that many lawmakers said would effectively nullify each other if passed.