At issue is an announcement late last week by Sen. Arlen Specter of Pennsylvania that the Bush administration, in what appeared to be a reversal of its earlier stance, had conditionally consented to a review of the warrantless eavesdropping program by the top-secret Foreign Intelligence Surveillance Court.
The Senate Judiciary Committee chairman hailed the agreement, reached after weeks of negotiations with Vice President Dick Cheney and administration lawyers, as recognition that the president does not have a "blank check."
But civil liberties advocates and major newspaper editorial boards with knowledge of the draft proposal have charged in recent days that the real picture is vastly different. Some say that Specter's intended bill is a "sham" that would not, in fact, bind the administration to submitting existing or future surveillance programs for scrutiny--and could erode checks on the chief executive's power and constitutional safeguards against unreasonable searches.
"The reality is, Specter is filling in the exact amount--it's not a blank check; it's whatever you want," Lisa Graves, the American Civil Liberties Union's national security lobbyist, said in a telephone interview. She added that the proposal is "far worse than the Patriot Act."
Electronic Frontier Foundation staff attorney Kevin Bankston deemed Specter's draft measure "a rubber stamp for any future spying program dreamed up by the executive," saying it "threatens to make court oversight of electronic surveillance voluntary rather than mandatory."
Scathing editorials in The Washington Post, the Los Angeles Times, and The New York Times this weekend took a similar tack.
"Mr. Specter has not been briefed on the NSA's program," the Post's editorial board wrote. "Yet he's proposing revolutionary changes to the very fiber of the law of domestic surveillance--changes not advocated by key legislators who have detailed knowledge of the program."
A Judiciary Committee spokeswoman on Monday declined to supply the language of the bill to CNET News.com, saying it has not yet been distributed to the media. It's expected to be discussed further and perhaps formally introduced at the committee's business meeting on Thursday.
It's also likely to be a topic of discussion on Tuesday, when the committee plans to grill Attorney General Alberto Gonzales at a Justice Department oversight hearing.
A copy of Specter's draft bill (click for PDF) posted by the EFF contained language that would authorize--but not require--the Foreign Intelligence Surveillance Court to review and sign off on wiretapping programs like the one being conducted by the NSA. It's unclear whether the court would have to reveal its ruling, should it find the program unacceptable, and the administration would be able to resubmit such programs numerous times.
Specter, who had been one of the few Republicans to question the NSA's activities, has said he is chiefly concerned with determining whether the program is constitutional. He assured reporters at a press conference last Thursday that the president would, indeed, submit the program for review, provided that the bill negotiated with the administration "is not changed."
The bill would also require that all cases involving legal challenges to the program or other "classified communications intelligence activity relating to a foreign threat" be transferred to that secret court, placing a new shroud over such findings. More than two dozen cases related to the program, including high-profile challenges against the government and AT&T lodged by the American Civil Liberties Union and the EFF, are pending in various federal courts.
Those are just a few of the concerns embedded in the 18-page draft, civil liberties advocates said. The ACLU's Graves charged that the bill, among other shortcomings, would undermine Fourth Amendment protections against unreasonable searches because it would require the program to be reviewed as a whole, omitting an existing requirement that the secret court receive the names or aliases of people being spied on--or even the number of people being swept up in any given surveillance scheme.
"We believe there's going to be strong opposition to it from the right and from the left," Graves said.
Specter, for his part, told reporters at a press conference last week that he believed "the committee will accept the bill. I believe that the Senate will accept the bill. And, with the president's backing, I think the House will as well."
