Wash. Post article on congressional debate over wiretapping, detention ignored approval of bipartisan Feinstein bill

››› ››› JOSH KALVEN

Washington Post staff writer Jonathan Weisman reported that the Senate Judiciary Committee approved a GOP bill that would essentially codify the Bush administration's warrantless domestic surveillance program. But Weisman ignored a bipartisan bill passed by the same committee that would reaffirm the Foreign Intelligence Surveillance Act, which requires court approval for all domestic eavesdropping for foreign intelligence purposes.

In a September 14 article, Washington Post staff writer Jonathan Weisman reported that the Senate Judiciary Committee approved along party lines a GOP-sponsored, White House-backed bill to essentially codify the Bush administration's warrantless domestic surveillance program. But Weisman ignored a bill sponsored by California Democrat Dianne Feinstein and passed by the committee on a bipartisan vote to reaffirm the Foreign Intelligence Surveillance Act (FISA) -- which requires court approval for all domestic eavesdropping for foreign intelligence purposes -- as the "exclusive means" by which the government can conduct domestic electronic surveillance.

In the article, Weisman covered recent developments on Capitol Hill relating to both the National Security Agency's (NSA) warrantless domestic eavesdropping program and the debate over how to prosecute terrorism suspects. On the NSA program, Weisman reported that on September 13 -- after "prodding from Senate Majority Leader Bill Frist (R-Tenn.) and House Speaker J. Dennis Hastert (R-Ill.)" -- the Senate Judiciary Committee passed Senate Bill 2453, the measure crafted by committee chairman Arlen Specter (R-PA) and modified after negotiations with the White House. As currently written, the bill would explicitly recognize the president's "inherent authority" to approve warrantless eavesdropping, thereby annulling FISA's central requirement -- that it "shall be the exclusive means" by which the government conducts domestic electronic surveillance. Further, it would give the president discretion over whether to submit the program to the FISA court for legal review. If the FISA court ruled that the warrantless spying 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.

From the September 14 Post article:

With prodding from Senate Majority Leader Bill Frist (R-Tenn.) and House Speaker J. Dennis Hastert (R-Ill.), the Senate Judiciary Committee voted 10 to 8 along party lines to approve a bill negotiated with the White House to allow -- but not require -- Bush to submit the National Security Agency's warrantless wiretapping program to a secret court for constitutional review.

That bill, which could come before the Senate next week, is considered by many to be a ratification of the administration's current surveillance program, which monitors the overseas phone calls and e-mails of some Americans when one party is suspected of links to terrorism. The program has been attacked by Democrats and civil liberties advocates as an excessive encroachment on Americans' privacy.

"The committee took the important step of acknowledging the president's constitutional authority to conduct foreign intelligence surveillance," said Sen. John Cornyn (R-Tex.), an ardent Bush ally.

Absent from Weisman's article, however, was any mention of the separate surveillance bill sponsored by Feinstein and Specter, which the committee passed that same day with bipartisan support. Indeed, the eight Democrats on the committee, along with Republican members Specter and Sen. Lindsey Graham (SC), approved Senate Bill 3001 on September 13 by a vote of 10-8. The Feinstein-Specter bill would reaffirm FISA as the "exclusive means" for domestic electronic surveillance. Further, it would address concerns that the current FISA process is too cumbersome by expanding the "hot pursuit" surveillance period from three days to seven days, devoting more resources to the processing of FISA warrants, and allowing the president to authorize warrantless surveillance for a period of 15 days following a congressional authorization of military force or a terrorist attack on the United States.

In contrast to the Post, a September 14 article by Los Angeles Times staff writer Richard B. Schmitt noted the committee's approval of the Feinstein-Specter bill and detailed its provisions:

The committee endorsed a White House-backed measure that would give President Bush broad authority for his warrantless wiretapping program. It also approved legislation by Sen. Dianne Feinstein (D-Calif.) that would largely preserve a 1978 law governing domestic spying while making few provisions for new executive powers.

[...]

But Feinstein's bill affirms what she and others say was the original intent of the 1978 law, and makes it clear that the FISA court is the exclusive authority for approving such requests.

Whereas the administration has expressed concern that the FISA court process is too cumbersome in an age of cellphones and Internet-savvy terrorists, Feinstein's solution would focus on expanding current emergency provisions in the law.

The legislation would extend -- from the current 72 hours to seven days -- the time allowed for emergency surveillance before a warrant application must be submitted to the FISA court. It also would augment the 15-day wartime exception for wiretapping without court approval to include incidents of congressional authorization for the use of force or a national emergency created by a terrorist attack.

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