The Senate Judiciary Committee this week reported several bills addressing the president’s warrantless wiretapping program. Two of these bills would radically expand the President’s authority to conduct warrantless surveillance inside the United States and the other would establish a system of focused surveillance that would be effective in fighting terrorism without casting aside the rights of ordinary Americans. The Senate is likely to take these bills up as early as next week and the House Judiciary and Intelligence Committees are likely to consider similar legislation next week.

The Bad Bills

Chairman Specter’s bill (S. 2543), which was radically altered by the White House, would ratify and dramatically expand President Bush’s program of wiretapping the communications of American citizens without judicial approval. Senator DeWine’s bill (S. 2455) would authorize programs of warrantless surveillance inside the United States under a lower standard than the “probable cause” standard required by the Fourth Amendment and would eliminate prior judicial review and individualized warrants, leaving only after-the-fact congressional oversight by a small subcommittee of the congressional intelligence committees.

Although Chairman Specter claims his bill would ensure judicial review of the President’s warrantless wiretapping, it would actually make meaningful judicial review of the program more difficult. Numerous cases challenging the President’s program are already pending in federal courts around the country. Chairman Specter’s bill would actually allow the Administration to have all of these cases transferred to the FISA Court of Review, where proceedings are conducted, and evidence is received in secret. If Chairman Specter really wants judicial review of the President’s warrantless wiretapping, he should allow these cases to continue and throw his support behind a different bill that he co-sponsored with Senator Feinstein.

The Good Bill

CDT supports the Specter-Feinstein bill (S. 3001), which was the only bill reported out of Committee with bipartisan support. Unlike the Specter and DeWine bills, the Specter-Feinstein bill restores the constitutional balance of power and is narrowly focused on the issues the Administration said caused it to circumvent FISA — namely, the need for more resources, greater speed in approving FISA applications, more flexibility to begin wiretapping in an emergency, and clarity that a warrant is not required for the interception of foreign-to-foreign communications.

The Specter and DeWine bills are bad for civil liberties and for national security. They violate the Fourth Amendment and would therefore jeopardize the prosecution of the very terrorists we are trying to fight by making any evidence obtained under these laws vulnerable to constitutional challenge.

Members of Congress who have been briefed in secret on the President’s program — including Senator Feinstein — have said that it could be conducted with judicial review. But these bills would authorize much broader surveillance without court approval. Senators should oppose the Specter and DeWine bills and support the Specter-Feinstein bill, which protects our privacy as well ass our national security.

We’re keeping a running list of the (mostly) bad news surrounding the NSA program here.

This entry was posted on Friday, September 15th, 2006 at 5:30 pm and is filed under Security & Freedom. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.