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Shayana Kadidal

Shayana Kadidal

Posted: June 8, 2006 01:41 AM

The Newest NSA Bill: Is the Third Time the Charm for Arlen Specter?

Many state constitutions limit the number of days per year that the state's legislature can be in session, in order to make sure the state government can't pass too many laws. Anyone who has followed Congress' legislative responses to the NSA Program can sympathize. The bills proposed to date--two by Arlen Specter and one by Mike DeWine--have been disasters. They accepted uncritically the administration's central contention in its PR campaign in favor of the Program: that judicial review is useless and merely serves as a drag on law enforcement's efficiency in catching terrorists. (We debunk the administration's many variants on that theme here.)

However, a new bill proposed jointly by Specter and Dianne Feinstein on May 24th actually appears to be a more carefully thought out response to the specific exigency claims the administration has made, rather than an attempt to sweep its reckless lawbreaking under a rug. (We exposed one of the more blatant lies in the claims of necessity underlying Specter's last effort here.) Of course, almost all of the administration's claims for why the NSA program was necessary will probably turn out to have no factual underpinnings whatsoever. And Congress most likely has done no independent factfinding of its own (although we have no idea what's gone on in closed session). But at least the veneer of rationality lies over this bill. And it shows how little change would have been required to deal with the administration's supposed concerns with the FISA statute--had they only bothered to ask Congress for amendments. Here's a rundown:

* The bill confirms that FISA is "the exclusive means by which electronic surveillance may be conducted on a United States person in the United States." This is a Belt-and-Suspenders sort of provision--FISA already says at least this much--but it's nice to hear Congress reiterating it.

* It also says that "[n]o provision of law shall be construed to implicitly repeal or modify" FISA, thus precluding arguments like the administration's ludicrous claim that the Authorization to Use Military Force against al Qaeda in Afghanistan somehow implicitly authorized the NSA's massive program of surveillance on our shores.

* The bill flexes Congress' "power of the purse" by prohibiting the use of federal funds to carry out surveillance outside of the statutes Congress has provided.

* The bill expands the emergency and wartime provisions already in FISA--slightly. So the retroactive warrant provision would be expanded; in emergencies, wiretaps could be put in place without prior FISA court approval, and the government would have to go to the court within 7 days for a retroactive warrant (current law allows for a 3 day delay--72 hours). The Attorney General would no longer have to be directly involved in instituting emergency surveillance, which seems to respond to Alberto Gonzales' testimony that the existing emergency procedure was burdensome on his limited time. Finally, if a judge rejects the application for a retroactive warrant, the target no longer has to be informed. (While very troubling, this provision addresses another one of Attorney General Gonzales' excuses for going around FISA: that the retroactive warrant procedure carries the risk that a target must be notified that the government was listening to him.) The wartime provisions are expanded as well: FISA currently allows certain warrantless wiretapping for 15 days after a formal declaration of war; the Specter-Feinstein bill would also authorize the same after a Congressional authorization to use force, and after certain attacks on the United States.

* The bill provides for more personnel to process wiretap applications under FISA: More NSA and FBI staffers and Justice Department lawyers to write the applications up, and more FISA judges (as needed) to process the applications. Whether or not this is warranted by current workloads, this proposal would give the lie to the administration's post-9/11 argument that it needs to go around the FISA court because it is just too burdensome to fill out all that paperwork. (The bill also mandates an official study of the efficiency of the application process, and development of an electronic system for classified document handling related to FISA applications, and allows the Attorney General to tweak the application process by regulation, all of which should streamline the system and preempt any future President from arguing that the FISA court is just too slow to respond to a 9/11-style crisis.)

In its own way, this part of the bill providing for more law enforcement personnel is also a rebuke to the President's broader assertions of authority to ignore the law. As we said in this column on May 25:

The larger point is a simple one, often overlooked. In the main, legal and technological short cuts don't stop terrorists. Good traditional law enforcement does. What we need is not less legal supervision but more flesh-and-blood agents doing a better job under more effective management. Profiling and other broad-brush measures like warrantless wiretapping may have some intuitive popular appeal but they have a historical track record of producing lousy results (as, apparently, does the NSA program).

Blaming the law is always a convenient shield for incompetent management to hide behind. After 9/11, an honest assessment by the FBI would have focused on bureaucratic management failures: that they failed to share intelligence with other agencies or devolve sufficient power to field offices. Instead, the loudest voices in the public debate were complaining that federal judges and wiretap laws were a drag on law enforcement's efficiency, and urging Congress to pass the PATRIOT Act to make everything better by lessening judicial oversight. Inside the White House, OLC lawyers argued that eliminating judicial oversight entirely was the best way to defend the country. In fact, the opposite is true: judicial oversight of wiretapping results in more efficient law enforcement because the probable cause requirement focuses law enforcement's efforts on threats that are real. For 200-plus years having judges review the evidence creating cause for suspicion before issuing search warrants is a system that has worked to ensure not only that the innocent don't get searched, but also that law enforcement doesn't waste its time with irrational profiling. Senator Specter and Congress had best relearn this lesson before it is too late.

Has Specter finally learned this lesson? I hope so. (Oddly, a lot of reporting around this issue today refers to a secret deal between Specter and Vice President Cheney whereby the administration would consider his earlier bill in exchange for deferring Congressional hearings where telephone company executives would be called as witnesses.)

The most important aspects of the Specter-Feinstein bill are the things that aren't there: the bill doesn't approve of eliminating any role for judges in supervising wiretapping, and it doesn't pretend that Congress' power over national security is limited to watching whatever the executive chooses to do. Let's hope it's a trend.

June 7, 2006

POSTSCRIPT: It's not the case at all that FISA was inadequate to the challenge posed by 9/11, as Busted implies; what this new bill really shows is that it would have been very easy to modify the FISA statute to deal with all of the empirical claims the administration made in defense of their decision to completely ignore FISA. FISA is problematic for many reasons, as freshaire alludes to--among other things, it doesn't meet the Fourth Amendment probable cause standard--and the process appears very slanted towards the government, with only 5 of 19,000 applications rejected in the last 27 years, but that's all grist for another column.