by Catherine Komp New Standard 6/23/06

While dozens of lawsuits challenging the Bush administration’s warrantless surveillance of Americans slowly move through the courts, the Senate Judiciary Committee is poised to consider legislation that would effectively legalize the practice.

Civil-rights advocates and constitutional-law experts say several proposed bills attempt to “whitewash” executive wrongdoing before Congress has the opportunity to conduct hearings and gather the facts surrounding the National Security Agency’s involvement in warrantless wiretapping and telecommunications data mining.

“Congress has the power to ensure that the president follows the law; they just have chosen not to use it,” said Brittany Benowitz, staff attorney for the Center for National Security Studies, a government watchdog group.

Senate Judiciary Committee Chair Arlen Specter (R-Pennsylvania) introduced the “National Security Surveillance Act” (S.2453) last March, which he followed with a substitute proposal in May.

The legislation would amend the Foreign Intelligence Surveillance Act (FISA) and establish new “procedures for the review of electronic surveillance programs.” FISA, which was expanded under the 2001 USA PATRIOT Act, was first established in 1978 to define the procedures and set up special courts to oversee the gathering of foreign intelligence through physical and electronic surveillance.

The Specter bill states in its findings, “It is in our nation’s best interest for Congress to use its oversight power to establish a system to ensure that electronic surveillance programs do not infringe on the constitutional rights of Americans, while at the same time making sure that the president has all the powers and means necessary to detect and track our enemies.”

But some legal experts say the bill eliminates checks and balances, failing to ensure protection of Americans’ constitutional rights to freedom of expression and against unreasonable search and seizure. According to the ACLU’s analysis of the bill, the legislation would amend a section of FISA that imposes penalties for warrantless surveillance — currently up to five years in jail and a $10,000 fine — and permit the executive branch to approve a wiretap without a Foreign Intelligence court order.

The ACLU points out that the bill creates a “retroactive exception to criminal liability” for federal agents spying on people without warrants as long as it’s done at the discretion of the president.

The bill would also eliminate a provision in the federal criminal code that designates FISA as the exclusive authority for wiretapping Americans to gather foreign intelligence. In abolishing this part of the criminal code, the ACLU said the bill would “reward the president’s [past] refusal to follow FISA by [retroactively] exempting him from following these procedures.” It would also, the group argues, “allow any president to make up his own ‘rules’ for wiretapping Americans and secretly implement those rules unless and until a court finds such rules unconstitutional.”

Lisa Graves, ACLU senior counsel for legislative strategy, told The NewStandard, “It would embed into federal law the notion that the president has inherent power to monitor Americans’ communications without court order.”

Another bill, Senator Mike Dewine’s (R-Ohio) “Terrorist Surveillance Program Act of 2006” (S. 2455), would also authorize warrantless surveillance if “the president determines that the surveillance is necessary to protect the United States, its citizens, or its interests, whether inside the United States or outside the United States.”

According to Benowitz of the Center for National Security Studies, this legislation is even worse than Specter’s bill. She said these changes are like “the PATRIOT ACT on steroids,” because they include no checks and balances.

“It would, like the Specter bill, authorize the president to do what he’s doing, which is spy on people who are suspected of no wrongdoing, without a court order,” Benowitz said. “But it would make it worse because it would actually restrict congressional oversight.”

In response to domestic spying during the Nixon administration, Congress set up special intelligence committees under the National Security Act to conduct oversight of the intelligence community. But both Benowtiz and Graves said the Dewine bill, through the establishment of “Terrorist Surveillance Subcommittees,” would undermine some of those laws by making it only necessary for the executive branch to brief certain members of Congress about its surveillance activities.

“If Congress passes either the Dewine or the Specter bill… then for the rest of our lives presidents of both parties will be able to spy on any American in this country at will without any check whatsoever that that person has done anything wrong,” said Graves. “And that’s not the kind of country that we should be living in.”

A third bill introduced in May, the “Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006” (S. 3001), also sponsored by Specter along with Senator Diane Feinstein (D-California), is the least problematic to constitutional-law experts interviewed by TNS.

The Specter-Feinstein legislation would reinforce FISA as the exclusive means through which electronic surveillance can be conducted; prohibit the use of funds on illegal surveillance; extend the emergency wiretap period from 72 to 168 hours; and permit the US attorney general to hire more application-processing staff and to delegate the authority to approve wiretap applications to other high-ranking agency officials.

Another key element of the bill, said Shayana Kadidal, staff attorney with the legal-rigths advocacy group Center for Constitutional Rights, is that it states Congress can never repeal or modify FISA by implication. That is, no White House would be able to claim, as the Bush administration has, that an authorization or mandate by Congress could be interpreted to override the FISA rules.

Some groups are also concerned about how the various legislative proposals would affect the dozens of pending lawsuits challenging warrantless spying and telecommunications data collection. A provision in the Specter substitute bill would send all lawsuits to the Foreign Intelligence Surveillance Court of Review, a secret court the sole purpose of which today is reviewing denials of surveillance warrants from the Foreign Intelligence Surveillance Court. The judges on this court are appointed by the Supreme Court chief justice and the proceedings are closed and classified.

Though the Bush administration has used the rationale of “state secrets” as a reason to keep warrantless-surveillance litigation out of district courts, Benowtiz said that, if necessary, there are many mechanisms for protecting classified information. For instance, courts can hold closed proceedings or issue protective orders so evidence can be filed under seal.

“So to the extent that the Specter bill would send things to the FISA Court [of Review] in order to keep things secret, that’s wholly unnecessary,” she concluded. “There’s no reason to take it out of the regular court system.”

While some rights groups say the Specter-Feinstein bill is a step in the right direction, few want to see any legislation until Congress thoroughly investigates the facts behind the warrantless-surveillance program.

“It’s extremely unusual for Congress to legislate in the face of violations of the law when they’ve never done an investigation about what’s happening,” said Benowtiz. “Congress has the power to make sure the president follows the law; they should use it. And they have the power to do oversight, they have the power to issue subpoenas; they should use those powers.”

Earlier this month Specter reversed his announcement that he would hold a hearing with officials from the telecommunications companies about their alleged collusion with the Bush administration in collecting Americans’ phone records.

The Dewine and Specter bills are currently awaiting mark-up. Benowitz fears the bills could be pushed through by a partisan Congress, resulting in sweeping changes for Americans.

“Both [bills] have the potential to fundamentally change the nature of our society,” Benowitz said. “It’s a constitutional crisis; it really is — the question of whether we’ll have a system of checks and balances — that’s what’s at issue here.”