Senator Arlen Specter is a careful lawyer who has been one of the few Republicans willing to take on the President when he sees an executive branch power-grab.
That's why I was so disappointed to read his legislation on the NSA program. Not only does it fail to force the President to comply with the law, but it actually authorizes the President to make an end-run around FISA and gives him a blank check to conduct warrantless spying on Americans.
The Bush Administration has refused to brief Senator Specter on the details of the NSA program. As a result, he's legislating in the dark.
Had he been briefed -- as I have been -- he would understand that the surveillance the President wants to conduct can be done completely under the current FISA system. If the President needs more resources -- staff, computers, etc. -- to process warrants more efficiently, Congress should provide those resources.
The Specter bill contains two provisions which, in effect, repeal FISA outright.
The first provision says that the FISA Court can issue an order authorizing the President to conduct a surveillance program targeting communications with terror suspects. This provision would repeal the requirement under FISA that the government get individualized warrants each time the government wants to listen to Americans' conversations or read their emails.
The Fourth Amendment states: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The key words here are "particularly describing." The hallmark of the Fourth Amendment is particularized suspicion -- the notion that the government can't just go on a fishing expedition. There must be some clear reason to believe that the target of the search is doing something to warrant the surveillance. A general search warrant is unconstitutional. See Stanford v. Texas, 379 U.S. 476 (1965).
As if that's not enough, the Specter bill also contains the following startling provision: "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." This provision endorses the Cheney-Addington vision of Executive Power -- that they have "all the authority they need" under Article II.
There are some positive aspects to the bill. As a conceptual matter, I agree that inviting a Court to review the President's actions is better than no Court review at all.
Also, section 10 of the bill contains some thoughtful revisions to the definition of "electronic surveillance."
But the Supreme Court, in both Hamdan and Hamdi, made clear that the President cannot have a "blank check," even in war-time.
A far better approach is the legislation Rep. John Conyers and I have drafted. The Lawful Intelligence and Surveillance of Terrorists in an Emergency by the NSA ('LISTEN') Act (H.R. 5371) would require the program to comply with FISA and would provide the resources needed to do just that. The bill has 58 co-sponsors and has been endorsed by the American Bar Association, the ACLU, the Center for Democracy Technology (CDT), former Reagan Justice lawyer Bruce Fein, and the Open Society Policy Center.
Next Wednesday, the House Intelligence Committee is holding a public hearing on various legislative proposals on the NSA program. I suspect that as the public absorbs the discussion, Senator Specter's bill will be dismissed as a non-starter.