Specter pulls plug on wiretapping curbs
A proposal crafted with the vice president's help would do damage to Americans' privacy rights and leave the president unchecked.
By Times editorial
Published July 20, 2006
There are two faces of Sen. Arlen Specter of Pennsylvania. To his credit, the Republican chairman of the Senate Judiciary Committee has been one of the few in his party to raise questions about the Bush administration's warrantless surveillance programs and other executive power grabs. Yet, when it comes to reining in the administration's actions, Specter folds like a rag doll.
Specter's weak side is especially evident in the "compromise" legislation he has offered as a response to the National Security Agency's warrantless wiretapping program. The proposal has been dubbed the Cheney-Specter bill because of the role the vice president played in crafting it. Their collaboration resulted in a disastrous piece of legislation that reflects Cheney's interest in expanding executive branch power far more than Specter's interest in the separation of powers and individual rights. The bill is a major cave-in to the administration that would do serious damage to the privacy rights of Americans. It should not pass in its present form.
Don't forget that, aside from obtaining a warrant from a criminal court, the Foreign Intelligence Surveillance Act offers the president the only alternative legal means of spying on Americans suspected of terrorist activities. It provides for a secret court to issue warrants upon a showing that an individual is believed to be connected to terrorism or espionage.
Since 9/11, FISA has been amended a dozen times in response to administration concerns over new threats and technologies. But despite these negotiated changes, which made it easier to obtain warrants, Bush as been ignoring the law for years, having authorized the NSA to tap the international phone calls of Americans without any court review.
Congress should be demanding that the president follow FISA's provisions, but the Cheney-Specter bill does the opposite. It forgives the president's trespasses against the law and then makes FISA review optional going forward. It would be up to the president to decide if he wants the FISA court to review the legality of the executive branch's surveillance programs. Moreover, the bill suggests, in several places, that the president has the inherent authority to order surveillance activities, ceding a key constitutional point and implying that Congress has limited ability to rein in the excesses of any president.
If passed, the Cheney-Specter bill would authorize long-term warrants that dispense with individual suspicion. The FISA court would be charged with evaluating the legality of electronic surveillance programs that are true fishing expeditions, where the privacy of large numbers of innocent people is invaded in an attempt to find someone guilty. This turns the protection of the Fourth Amendment on its head. No longer would the government have to demonstrate that an individual suspect is the subject of a search in order to obtain a warrant. It would just have to show that a surveillance program is designed to look for communications with a terrorist connection.
The bill would also transfer all the litigation that currently challenges the president's warrantless spying to the secret FISA court, and that court could then dismiss the cases "for any reason." Once again, the point is to interfere with the objective review of these spying programs, just as the president called off the Justice Department's probe by denying investigators the needed security clearances.
Specter has scheduled a committee vote on his bill today, ignoring a request by the Democratic members of the committee for a hearing before such major changes are voted on. The legislation would not bring the NSA program under the FISA court purview, as Specter claims. Instead, it would release the president from even the legal obligations that exist today. Specter has capitulated to the administration's arrogation of power and is now attempting to give it political cover. Where is the other Arlen Specter, the one who cares about the Constitution? We need him to re-emerge.