July 17, 2006 4:10 PM PDT

Critics blast bill proposing NSA spy changes

Criticism is growing of a proposed law touted by a Republican senator and the White House as a compromise solution to the ongoing controversy over the National Security Agency's electronic surveillance program.

At issue is an announcement late last week by Sen. Arlen Specter of Pennsylvania that the Bush administration, in what appeared to be a reversal of its earlier stance, had conditionally consented to a review of the warrantless eavesdropping program by the top-secret Foreign Intelligence Surveillance Court.

The Senate Judiciary Committee chairman hailed the agreement, reached after weeks of negotiations with Vice President Dick Cheney and administration lawyers, as recognition that the president does not have a "blank check."

But civil liberties advocates and major newspaper editorial boards with knowledge of the draft proposal have charged in recent days that the real picture is vastly different. Some say that Specter's intended bill is a "sham" that would not, in fact, bind the administration to submitting existing or future surveillance programs for scrutiny--and could erode checks on the chief executive's power and constitutional safeguards against unreasonable searches.

"The reality is, Specter is filling in the exact amount--it's not a blank check; it's whatever you want," Lisa Graves, the American Civil Liberties Union's national security lobbyist, said in a telephone interview. She added that the proposal is "far worse than the Patriot Act."

Electronic Frontier Foundation staff attorney Kevin Bankston deemed Specter's draft measure "a rubber stamp for any future spying program dreamed up by the executive," saying it "threatens to make court oversight of electronic surveillance voluntary rather than mandatory."

Scathing editorials in The Washington Post, the Los Angeles Times, and The New York Times this weekend took a similar tack.

"Mr. Specter has not been briefed on the NSA's program," the Post's editorial board wrote. "Yet he's proposing revolutionary changes to the very fiber of the law of domestic surveillance--changes not advocated by key legislators who have detailed knowledge of the program."

A Judiciary Committee spokeswoman on Monday declined to supply the language of the bill to CNET News.com, saying it has not yet been distributed to the media. It's expected to be discussed further and perhaps formally introduced at the committee's business meeting on Thursday.

It's also likely to be a topic of discussion on Tuesday, when the committee plans to grill Attorney General Alberto Gonzales at a Justice Department oversight hearing.

A copy of Specter's draft bill (click for PDF) posted by the EFF contained language that would authorize--but not require--the Foreign Intelligence Surveillance Court to review and sign off on wiretapping programs like the one being conducted by the NSA. It's unclear whether the court would have to reveal its ruling, should it find the program unacceptable, and the administration would be able to resubmit such programs numerous times.

Specter, who had been one of the few Republicans to question the NSA's activities, has said he is chiefly concerned with determining whether the program is constitutional. He assured reporters at a press conference last Thursday that the president would, indeed, submit the program for review, provided that the bill negotiated with the administration "is not changed."

The bill would also require that all cases involving legal challenges to the program or other "classified communications intelligence activity relating to a foreign threat" be transferred to that secret court, placing a new shroud over such findings. More than two dozen cases related to the program, including high-profile challenges against the government and AT&T lodged by the American Civil Liberties Union and the EFF, are pending in various federal courts.

Those are just a few of the concerns embedded in the 18-page draft, civil liberties advocates said. The ACLU's Graves charged that the bill, among other shortcomings, would undermine Fourth Amendment protections against unreasonable searches because it would require the program to be reviewed as a whole, omitting an existing requirement that the secret court receive the names or aliases of people being spied on--or even the number of people being swept up in any given surveillance scheme.

"We believe there's going to be strong opposition to it from the right and from the left," Graves said.

Specter, for his part, told reporters at a press conference last week that he believed "the committee will accept the bill. I believe that the Senate will accept the bill. And, with the president's backing, I think the House will as well."

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5 comments

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Unconstitutional No Matter How You Spin It
So one of the very few feeble Republican voices to raise any question with the outrageous abuses by the Bush regime joins the long list of enablers. Should we be surprised that these Republicans that were so concerned about a blue stained dress and decades old financial transactions by a Democrat should have little interest in a growing list of probable war crimes and constitutional violations. Hypocrisy is too kind a word for this group.
Posted by zanzzz (138 comments )
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See I knew there was a simple solution....
If it's not constitutional just make it constitutional. Problem solved.
Posted by pmfjoe (196 comments )
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Is this the Enablement Act?
The Enablement Act simultaneously granted all authority to the Chancelor while cuting any roles and responsibility to the legislature. I thought the (un)Patriot Act came pretty close, but it looks like this new legislation is the real deal.
Posted by Richard G. (137 comments )
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The Specter draft is a good smokescreen for the common man
I just finished reading parts of the Specter draft and it has many questionable spots regarding the need for warrants and the Judicial review by the Foreign Intelligence Court of warrants.

One of the things I hate about the Law is that it is written not to be direct in its explaination but made to be in sequence with previous legislation making it not only hard to understand but than you have to research previous referenced legislation to make sense of it.
The Specter draft is no different than ony other pieces of legislation in its complexity - thank God for PDF format were you can search for any type of significant word or group of words to find any form of significant "meat".

In my examination of the PDF of the Specter draft, using the word "warrant" as my search criteria there are nine instances where "warrant" is used - there is no instance where it is explained that a warrant has to be used in any type of Federal wiretap operation, only in the regard of domestic Law Enforcement.
Using "court" as my next search string, I found that in those instances the Federal Intelligence Sureillance Court has jurisdiction to review the wiretap operations in question but it is not mandatory for them to do so or that the draft supports any form of review or warrant granting process involving the Court for the federal wiretap investigation - in effect, this just makes it clear that regular (local) law enforcement must abide by the rules of protecting a suspect's Civil Liberties but that the Federal Government has the ability to sidestep those same rules in regards to operations involving International repurcussions.
A further examination of those area hilighted by my variable "court" search also reveals that the draft in affirming the Federal Surveilance Court's ability to review any form of Electronic Eavesdropping operation allows Congress to give The President broad powers to protect the USA, whatever means necessary, while protecting the rights and liberties "we cherish".

This draft is complete crap, it does not do anything to stop the President from disregarding our Constituional Rights in regards to prosecution and privacy, which the Presidential eavesdropping activity violates. The draft basically gives the President the Congressional "green seal of approval" to do whatever is deem necessary to protect the country, without obeying The Law that protects citizens from government abuse.

To anyone who does not have relatives in a Third World country, it's hard to imagine that America can ever become a dictatorship but the truth is that it is possible - more legislation like The Specter Draft will make it possible for America to follow in the footsteps of countires like Liberia, Philippines, and Iraq, if we just let it happen and give complete trust in our government and leaders.

My Two Cents,
Ned
Posted by techned (200 comments )
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So, Specter has been just bending with...
the wind when he raised concern about NSA spying. It just shows how devious the Republican party is. By the time Bush's term expires he will declare himself Emporer, declare marshall law and suspend the Constitution and Bill of Rights.
Posted by wtortorici (102 comments )
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