| Fact
Sheet - The President’s Agreement with Chairman Specter
on NSA Wiretapping Not as Advertised
July 17, 2006
A review of Senator Specter’s legislation
shows why the President would agree to this “compromise”
– because it gives him even more power than he has asserted
under his illegal NSA wiretapping program, based on public
descriptions of that program. What’s more, as Senator
Specter has emphasized, the President will only agree to judicial
review of the NSA program if these broad new authorities –
and every aspect of the bill – remain unchanged.
Here are some of the problems with the
bill:
- The bill provides specific authority
for the Foreign Intelligence Surveillance Act (FISA) court
to issue broadly defined “program-wide” warrants,
unlike the current FISA, which generally requires the government
to specify the individual whose phones are to be tapped
and provide the basis for believing the individual is a
terrorist or spy.
- The bill reinstates language similar
to a provision that Congress repealed when it passed FISA
in 1978 –language that explicitly validates the President’s
claim that he has constitutional authority to wiretap individuals
in the United States for foreign intelligence purposes without
judicial approval.
- FISA currently provides that it is the
exclusive means for such surveillance, one of the main reasons
that many legal experts believe that the NSA program is
illegal. The bill repeals that provision. In combination,
this change and the provision concerning constitutional
authority essentially make compliance with FISA entirely
optional.
- The bill deletes the wartime exception
under which the President can wiretap anyone he wants for
15 days after a declaration of war without seeking a warrant
under FISA. This eliminates another strong argument raised
by those who believe the NSA program is illegal –
Congress has specifically provided in FISA for what happens
in a time of war and it does not include a warrantless surveillance
program with no time limit.
- The bill allows the Attorney General
to transfer any lawsuit challenging electronic surveillance
for purposes of intelligence gathering, possibly including
pending cases that are making their way through the courts
now, to the FISA Court of Review. And that court could dismiss
any challenge to surveillance “for any reason.”
- The bill includes another new blanket
exception to the FISA warrant requirement for an individual
who is inside the United States but is not a U.S. citizen
or legal permanent resident. Under the bill, such individuals
could be wiretapped at any time upon a declaration by the
Attorney General once a year that they are working for a
foreign power or terrorist organization.
- The bill provides that all FISA warrants
will authorize surveillance for an entire year. Currently,
warrants authorizing surveillance of U.S. persons have to
be renewed after 90 days.
- The bill amends the provisions of FISA
authorizing secret physical searches of people’s homes
in a way that suggests the President would not need to seek
court approval to conduct these searches.
In other words, the President is willing
to submit the NSA program to the FISA court only if the Congress
passes a law making the program legal, thus predetermining
the outcome of the highly touted judicial review of the President’s
authority to violate FISA. And only if other very troubling
expansions of executive authority under FISA are made without
modification.
- A few points about the FISA court proceedings
are also important to note:
- The proceedings, and the decisions,
are completely secret, unless the court decides to release
information about them.
- Cases are conducted ex parte. In other
words, the government presents its arguments and the court
rules. No one is on the other side to present opposing arguments.
- If the government loses, it can appeal
to the FISA Court of Review, and can seek review by the
U.S. Supreme Court. If the government wins, there is no
appeal.
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