Eavesdrop pass

Jacob Sullum
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Posted: Jul 19, 2006 12:01 AM

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.

In case this understanding of permissible surveillance is not broad enough for the government's eavesdropping to pass judicial muster, Specter's bill also says the Foreign Intelligence Surveillance Court "may dismiss a challenge to the legality of an electronic surveillance program for any reason " (emphasis added). So even if there were valid statutory or constitutional arguments against a program, the court could dismiss them because it did not like the tie worn by the lawyer presenting them.

Could the reason really be that frivolous? Since this court does not produce public opinions, we might never know. And did I mention that the bill allows the attorney general to move all lawsuits challenging the government's surveillance programs to the one court that can secretly dismiss them on a whim?

In any event, review by the Foreign Intelligence Surveillance Court is optional under Specter's bill, which allows but does not require the administration to seek the court's opinion.

Indeed, the bill encourages the president to go it alone by repealing the provision that identifies the Wiretap Act and Foreign Intelligence Surveillance Act as "the exclusive means" by which the monitoring of communications involving people in the United States "may be conducted." That change and several others proposed by Specter seem to endorse the president's position that he has inherent constitutional authority to conduct whatever surveillance he thinks is required to combat terrorism.

The administration has never clearly explained why the current legal restrictions on surveillance impose an unreasonable burden. Maybe it makes sense to allow more time for retroactive approval of surveillance in emergencies, or to loosen the evidentiary requirement for surveillance aimed at preventing terrorist attacks, especially if it involves automated filtering rather than human eavesdropping, provided the information gleaned in this way is not used for other purposes.

If so, Congress should change the rules rather than give the president permission to rewrite them at will.