Jacob Sullum

The "findings" that precede Arlen Specter's National Security Surveillance Act are full of tough-sounding rhetoric about the limits of executive power, including former Supreme Court Justice Sandra Day O'Connor's observation that "a state of war is not a blank check for the President." Unfortunately, the National Security Surveillance Act is.

Specter, the Pennsylvania Republican who chairs the Senate Judiciary Committee, portrays his legislation as a way of reasserting the roles of Congress and the courts in an area where President Bush has claimed unilateral authority. But if enacted, the bill would give a statutory blessing to warrantless surveillance and encourage the president's habit of doing whatever he considers appropriate to fight terrorism, regardless of what the other two branches say. No wonder the bill has been endorsed by the White House.

The National Security Surveillance Act ostensibly would subject the monitoring of telephone calls and e-mail messages in terrorism investigations to judicial review. But instead of seeking approval for eavesdropping on particular suspects, as required by the Foreign Intelligence Surveillance Act (a law the president has been ignoring), the administration could ask the secret court established by that statute to authorize entire "electronic surveillance programs," which might involve thousands of unnamed targets.

Unlike the administration's description of the warrantless surveillance the National Security Agency already is conducting, the communications monitored by these programs need not involve anyone outside the United States; they could be entirely domestic. And they need not involve suspected agents of terrorist organizations; a person "reasonably believed to have communication with or be associated with" a suspected agent of a terrorist organization would do.

Hence anyone who talks to or spends time with a suspected terrorist, even unknowingly, would thereby become a legitimate target, and any communication between that person and anyone else could be monitored without a warrant. You could never safely assume your phone calls or e-mail messages were private, since either you or the person on the other end might have had inadvertent contact with a suspected terrorist.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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