The Senate Judiciary Committee on Thursday, June 15, plans to take up legislation destined for the floor of the Senate that would legalize the National Security Agency's illegal wiretapping of people within the United States without a court order.
While the details of the NSA program remain unknown to all but a handful of members of Congress, it is clear that the surveillance violates the Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain a warrant from a special court before eavesdropping on individuals within the U.S. To obtain a warrant, the government must show probable cause that the target of the surveillance is a suspected terrorist or spy, and not an ordinary, innocent individual.
When word of the program became public, the Bush administration defended its actions as necessary to combat terrorist networks. This claim cannot be verified as the House and Senate Intelligence Committees have failed to investigate the program. Senate Judiciary Committee Chairman Arlen Specter (R-PA) has been the only member of the Senate leadership to demand a serious congressional overview and to insist that any legislative changes retain the requirement that the government seek a warrant before conducting domestic surveillance.
At least until now. This week Sen. Specter did an about-face, offering up a compromise with Senate hardliners that would retroactively legalize warrantless domestic spying and grant a blanket amnesty to all those who had authorized it. His bill would repeal the current requirement that all domestic wiretapping for intelligence purposes be carried out in compliance with FISA.
And for good measure, the bill would state that "nothing in this Act shall be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States." That's a statement that effectively leaves the president free to ignore the law.
Specter rewrote his bill to gain the support of conservative senators whose votes he needs to get the bill through the Judiciary Committee. But minority members of the committee are likely to line up behind a substitute bill proposed by Sen. Dianne Feinstein (D-CA), and cosponsored by Chairman Specter before he reversed course, which retains the requirement that the government seek warrants under FISA while giving the government additional time and resources to enable it to do so.
Sen. Feinstein has it right. It is essential that the NSA conduct wiretaps on terrorist suspects in the U.S. and abroad. And the government has offered no reason why it cannot do so in accordance with time-tested rules that protect innocent Americans from the kinds of abuses that led to the enactment of FISA in the first place.
Sen. Specter clearly appreciates this, and there is still time for him to reconsider his position.
The Center for American Progress has produced a number of reports and analyses underlining the importance of the lawful use of electronic surveillance to protect our country. For more information, please see: