McClatchy Newspapers misleadingly reported that legislation proposed by Sen. Arlen Specter is "intended to put the surveillance program under the jurisdiction of a special court established by the Foreign Intelligence Surveillance Act [FISA]." In fact, under a deal reached between the White House and congressional Republicans on the legislation, the president has the option of asking the FISA court to review the program. CNN senior legal analyst Jeffrey Toobin claimed that the Specter bill would "be a compromise" on the domestic surveillance program; many Democrats and progressives, however, have called the Specter bill an "end run" around FISA.
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In an August 17 article on a U.S. District Court's recent ruling that the Bush administration's warrantless domestic eavesdropping program is unconstitutional, McClatchy Newspapers reporters Ron Hutcheson and Margaret Talev misleadingly wrote that legislation proposed by Sen. Arlen Specter (R-PA) is "intended to put the surveillance program under the jurisdiction of a special court established by the Foreign Intelligence Surveillance Act [FISA]." In fact, while Specter's original bill required the president to submit the warrantless spy program to the FISA court for review, as a result of a deal reached with the White House and other congressional Republicans in July, the Specter bill would now give President Bush the option of doing so. Bush has pledged to ask the FISA court to review the program if the Specter bill is passed, but the bill does not codify that pledge. Further, once FISA's review of the program's legality is completed, the Specter bill does not provide any further authority for the FISA court to oversee the program.
In addition, on the August 17 edition of CNN's Lou Dobbs Tonight, CNN senior legal analyst Jeffrey Toobin claimed that the Specter bill would "be a compromise of all these positions" on the domestic surveillance program. In fact, many Democrats and progressives, who believe warrantless wiretaps on U.S. persons violate the law, have said that the Specter bill is an "end run" around FISA and a "capitulation," rather than a "compromise."
Specter introduced S. 2453 in February, a measure that would significantly limit the degree of judicial approval required for domestic eavesdropping under 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 residents within the United States for foreign-intelligence purposes. Since 2001, however, the Bush administration has authorized the National Security Agency (NSA) to eavesdrop on such communications without obtaining warrants. In its original form, S. 2453 would have required the White House to subject the NSA operation to review by the FISA court every 45 days. But following negotiations with the Bush administration and Republican members of the Senate Judiciary Committee, Specter proposed, and the Senate Judiciary Committee adopted, a modification to his earlier bill. Specter's bill is currently pending in the Judiciary Committee. The Washington Post reported on August 4 that, after the committee adopted the modification to the bill, Democrats on the committee blocked Specter's effort to move the bill to the floor for a full Senate vote by keeping open debate on the measure until the committee lost its quorum.
Specter's revisions would give the president the discretion over whether to submit such intelligence programs as the NSA warrantless surveillance program to FISA for legal review. If the FISA court ruled that the warrantless spy program was illegal, the attorney general would then have the option of submitting an unlimited number of new applications to request that the program, or a modified version of it, be approved. Alternatively, the attorney general could appeal the decision to the Foreign Intelligence Surveillance Court of Review (FISCR) -- the appellate court for decisions by the FISA court. The modified Specter bill would also give the attorney general the right to ask the Supreme Court to review an adverse decision by the FISCR by filing a writ of certiorari. The alleged "compromise" would also require all cases challenging the legality of any surveillance program in other courts to be transferred to the FISCR "if the attorney general files an affidavit under oath that further proceedings in such court would harm the national security of the United States." According to Specter's amendment, each case will then be sent back to its respective court after the FISCR rulings for "further proceedings consistent with [the FISCR's] opinion," but the amendment does not explicitly state whether the FISCR's opinion would also be binding on appellate courts.
As Media Matters for America has noted, some major media outlets characterized Specter's White House deal and subsequent amendment to S. 2453 as a "compromise." Continuing this trend while discussing the U.S. District Court's recent ruling on the August 17 edition of CNN's Lou Dobbs Tonight, Toobin asserted that Specter is "trying to get a bill that will be a compromise" between congressional Democrats and Republicans and the White House. But Toobin failed to note that many Democrats and progressives have voiced strong criticism of Specter's proposed legislation because it would make the submission of the NSA program to the FISA court optional, would allow the government to short-circuit ongoing proceedings dealing with the program's legality in other courts, and, in the words of House Intelligence Committee ranking member Rep. Jane Harman (D-CA), would abandon "a core Fourth Amendment protection," the requirement that the government obtain individualized warrants.
The August 4 Post article quoted Sen. Dianne Feinstein (D-CA) calling Specter's proposal "worse than no bill at all," adding that it would "allow the president to exercise unchecked authority." Similarly, a July 14 New York Times article quoted Harman describing the deal between Specter, the White House, and congressional Republicans 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 addition, a July 14 Los Angeles Times article quoted American Civil Liberties Union executive director Anthony D. 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." A July 13 McClatchy Newspapers article 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."
From the August 17 McClatchy Newspapers article:
The ruling complicates efforts in Congress to come up with a compromise that could satisfy both sides in the dispute. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., is pushing legislation that's intended to put the surveillance program under the jurisdiction of a special court established by the Foreign Intelligence Surveillance Act.
From the August 17 edition of CNN's Lou Dobbs Tonight:
TOOBIN: [A]s scathing as the whole 43-page opinion is, the real core issue here is does the administration -- is it totally barred by the Foreign Intelligence Surveillance Act, the law that says you have to get a warrant before you do any sort of surveillance? The Bush administration has said its executive powers extend beyond FISA. The Supreme Court is going to have to settle this. And they're doing -- they've got more justices to their liking there now.
DOBBS: And as we look on it, and I think it's interesting as you put a political context around these judicial proceedings, a liberal judge at the district court level -- and it seems that either politics abates somewhat, partisan politics, as you move up through the appellate structure, or they swing conservative, one or the other. Is Congress also going to have a role here? Is it now an appropriate time for Congress to set forth law that will set parameters and boundaries over this president? Or is it going to be, as you suggest, ruled by the interpretation of the Constitution?
TOOBIN: Arlen Specter, the chairman of the Judiciary Committee, is trying to get a bill that will be a compromise of all these positions. But as you know, we're coming up on an election, and not much is getting through Congress these days, especially on something as controversial as this.