USA Today ignored Democratic criticism of Specter's FISA proposal

››› ››› JOSH KALVEN

In an article on legislation proposed by Sen. Arlen Specter (R-PA) regarding the Bush administration's warrantless domestic surveillance program, USA Today failed to quote a single Democrat or progressive critical of Specter's approach.

In a July 14 article on legislation proposed by Sen. Arlen Specter (R-PA) regarding the Bush administration's warrantless domestic surveillance program, USA Today staff writer John Diamond failed to quote a single Democrat or progressive critical of Specter's approach.

In February, Specter introduced Senate Bill 2453, a measure that would significantly limit the degree of judicial approval required for domestic eavesdropping under the Foreign Intelligence Surveillance Act (FISA). As it currently stands, FISA requires the government to obtain a warrant from a secret court in order to eavesdrop on the communications of U.S. citizens and legal aliens for foreign-intelligence purposes. Since 2001, however, the Bush administration has authorized the National Security Agency (NSA) to eavesdrop in such cases without warrants. In its original form, Senate Bill 2453 would have required the White House to subject the NSA operation to review by the FISA court every 45 days.

But subsequent negotiations with the Bush administration and Republican members of the Senate Judiciary Committee led Specter to introduce an amendment to his earlier bill. Specter's revisions would make it optional for the White House to submit such intelligence programs to FISA review and to reject FISA as the exclusive means by which domestic surveillance for foreign-intelligence purposes could be legally approved. Under Specter's measure, the statute would allow such surveillance "under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978." The amendment also inserts the following language into the FISA statute: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." As Washington Post staff writers Charles Babington and Peter Baker reported in their July 14 article on the topic, "The combination of the statement acknowledging presidential authority and the deletion of the exclusivity clause left open the interpretation that Bush has the power to conduct other surveillance outside FISA's purview, a possibility administration officials noted with approval."

Diamond's July 14 article on Specter's purported "compromise" quoted Attorney General Alberto R. Gonzales as saying that the amendment "could be very helpful" and would "continue to allow the president to gather up information to protect the country." Further, Diamond quoted Specter claiming that Bush's support for the amendment amounts to a belief "that the president does not have a blank check."

But while Diamond did note that the exposure of the program had "sparked opposition from civil liberties groups" and "some lawmakers," he omitted any reference to the specific and strong criticism of Specter's revised legislation.

By contrast, numerous other news outlets noted the criticism. For instance, a July 14 article by New York Times reporter Eric Lichtblau quoted Rep. Jane Harman (D-CA) describing the measure as an "end-run" around FISA:

In a separate interview, Representative Jane Harman of California, the ranking Democrat on the House Intelligence Committee, said she saw the Specter-White House agreement as an "end run" around the FISA law requiring the approval of individual wiretapping warrants.

"I have great respect for this guy," she said of Mr. Specter, "but he hasn't been briefed on this program, and he's giving away in this legislation a core Fourth Amendment protection by basically saying that the FISA court has permission to bless the entire program, which will abandon as best I can tell the requirement of individualized warrants."

Ms. Harman, who has introduced legislation of her own to restrict the program, said, "If we want to abandon a core Fourth Amendment protection, we should get on the Specter train, and I don't plan to get on that train." Similarly, the American Civil Liberties Union called the agreement a "sham" that was "nothing short of a capitulation by Chairman Specter to the White House."

In their July 14 article, Babington and Baker similarly noted Harman's criticism of the bill, as well as that of Sen. Russ Feingold (D-WI):

Several Democrats denounced the proposed legislation. "The Specter bill is an end run around the Foreign Intelligence Surveillance Act and provides the president a blank check to conduct warrantless surveillance of Americans," said Rep. Jane Harman (Calif.), ranking Democrat on the House intelligence committee.

[...]

Sen. Russell Feingold (D-Wis.) criticized the agreement, saying he will oppose "any bill that would grant blanket approval for warrantless surveillance of Americans, particularly when this administration has never explained why it believes that current law allowing surveillance of terrorist suspects is inadequate."

A July 14 piece by Los Angeles Times staff writers Richard B. Schmitt and James Gerstenzang quoted ACLU executive director Anthony Romero calling the legislation "nothing short of a capitulation by Chairman Specter to the White House" and "nothing more than a sham." Romero added, "The president could still choose to ignore the optional court oversight on the program." And a July 13 article by McClatchy Newspapers reporter Jonathan S. Landay noted other civil-liberties groups' criticism of the bill:

Civil liberties groups called the measure a ruse designed to keep Congress and the public in the dark about the full extent of what they condemned as an illegal program run by the National Security Agency, which conducts electronic eavesdropping.

"Senator Specter's proposal would set up a sham judicial review," charged Kate Martin, the director of the Center for National Security Studies. "It gives them a blank check and legal cover for what they have been doing."

Lee Tien, an attorney with the Electronic Frontier Foundation, a civil liberties group that's suing AT&T over its cooperation with the NSA program, called the bill "terrible" in part because it provides no opportunity for outside attorneys to contest the program's legality before FISA court.

"This bill says nothing about how any outsider or the folks that we represent would have any kind of a voice in this," he said. "It's almost alien to the concept of judicial review in this country."

Posted In
Justice & Civil Liberties, Domestic Spying
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