Specter's Trojan Horse

Arlen Specter has been saying for weeks that he plans to submit a bill to the Senate aimed at resolving the controversy over the President's secret warrantless surveillance program. A copy of that draft legislation has now surfaced, and it's troubling in a number of ways.

Marty Lederman has a copy of the actual text of the bill, and his initial take on the proposed legislation is well worth reading.

The bill would amend FISA to add a number of substantive provisions. These new provisions would establish a procedure through which the executive branch could seek judicial authorization from the Foreign Intelligence Surveillance Court for surveillance programs--like the now infamous "Terrorist Surveillance Program"--that do not meet the current requirements of FISA. In order to secure such authorization, the Attorney General would be required to submit an application to the Court which would explain--among other things--how the proposed program works, why the information the program seeks cannot reasonably be obtained by way of FISA's normal procedures, an why the program does not violate the Constitution.

This application would be considered by the Court on an ex-parte basis (in the same way a FISA warrant application is) and the Court would then authorize the program if:

approval of the electronic surveillance
program in the application is consistent
with the duty of the Foreign Intelligence
Surveillance Court to uphold the
Constitution of the United States

and

there is probable cause to believe that
the electronic surveillance program will
intercept communications of the foreign
power or agent of a foreign power
specified in the application, or a person
who has had communication with the
foreign power or agent of a foreign power
specified in the application

So instead of having to demonstrate that probable cause exists on a warrant by warrant basis, the government would only have to demonstrate that there is probable cause to believe the program as a whole will intercept at least one communication involving a foreign power or agent of a foreign power or someone who has communicated with such a person. That's a comically weak standard, so weak that I doubt any conceivable surveillance program would fail to meet it, including dragnet-style data-mining programs.

And it should be noted that there is absolutely nothing in Specter's bill that would limit the use of these special purpose programs to the interception of international communications (as opposed to purely domestic ones). This bill would clearly allow for programs far broader than the "Terrorist Surveillance Program."

As Marty Lederman puts its:

In other words, there would no longer be any
meaningful substantive statutory restriction
on the federal government's electronic
domestic surveillance of U.S. persons -- the
end of FISA as we know it. The only check
would be an odd constitutional check: The FISA
court would be required to certify that the
program as a whole (again, not any particular
surveillance) is "consistent with" the Fourth
Amendment. This would, if I'm not mistaken,
bring us right back to the pre-FISA days, when
the Fourth Amendment was the only legal
constraint on domestic electronic surveillance
by the federal government.

Perhaps even more disturbing than Specter's bill, however, is the fact that the Bush administration opposes it. This bill would essentially give the administration carte blanche to utilize any surveillance program whatsoever so long as it is consistent with the constitution. The fact that the administration prefers the rival DeWine legislation (which would provide only for Congressional, not judicial oversight), only reinforces my belief that the administration's primary concern is that if this program is ever subjected to judicial scrutiny, it will be found to violate the Fourth Amendment. The administration wants to avoid at all costs having a court opine on the constitutionality of what they are doing. It's not enough that Specter's bill would undo 27 years of Congressional work developing and fine-tuning a statutory procedure meant to protect the constitutional rights of Americans from executive abuse. No, the administration wants to make sure that the last remaining check, the courts, are as marginalized and as far out-of-the-loop as possible.