In remarks on the Senate floor on Tuesday afternoon, Judiciary Committee Chairman Arlen Specter marketed his new 11-page proposal as "a significant advance in protecting civil liberties." Once one of the few Republicans to question openly the legality of the National Security Agency's warrantless terrorist surveillance program, the veteran Pennsylvanian politician drew criticism this summer for endorsing a bill that would allow--but not require--the Bush administration to submit the operations for court review.
The Senate Judiciary Committee chairman's latest effort drew near-immediate skepticism from the American Civil Liberties Union and from California Democratic Sen. Dianne Feinstein, who co-sponsored what civil liberties groups viewed as a more stringent bill with Specter earlier this year. That bill narrowly cleared a committee vote in July but has since stalled.
"I am really unsure why passage of this bill now would achieve anything," Feinstein said in her own Senate floor remarks.
Specter's new bill arrives less than a week after President Bush called on the lame-duck Congress to prioritize legislation that would effectively authorize the administration's terrorist surveillance project, which is already the target of a few dozen lawsuits. The House of Representatives in September approved an administration-backed bill that drew fire from civil libertarians, who argued it would expand the government's electronic spying powers to unprecedented levels.
Titled the "Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2006," the latest Specter bill does not appear to grant as much latitude for warrantless spying as the approved House bill. Specter's proposal, for instance, would require the U.S. Supreme Court to review all appeals of cases challenging the legality of the specific spy program acknowledged by the president last December, whereas the version approved by the House would effectively quash all such challenges.
The bill also proposes a number of changes to existing law that some found troubling.
One section, for instance, would require the U.S. attorney general to "fully inform" the Senate and House of Representatives intelligence committees semiannually of any electronic surveillance undertaken without a court order. But it would also scale back a 1947 law that governs reports on government intelligence activities to Congress, requiring only that the chairmen of each congressional intelligence committee be privy to those documents.
Perhaps most notably, one section would erase the need for the government to obtain a warrant when tapping into "foreign-to-foreign" communications, even if Americans are involved in those exchanges, said Mike German, a policy counsel for the ACLU. Under existing law, a showing of probable cause is required, he said, meaning that "a U.S. person located abroad would lose his right to privacy under this section of the bill."
Among other provisions, the bill would also permit hiring of new lawyers as needed by the Department of Justice, the FBI, the National Security Agency and the secret Foreign Intelligence Surveillance Court, which is tasked with issuing court orders for eavesdropping on conversations when at least one end is located in the United States. It would also allow authorities 168 hours--rather than the existing 72--to make after-the-fact applications for warrants in "emergency" situations when higher-ups decide surveillance must begin immediately.
"With these additional resources, I am advised that the NSA will be in a position to have individual warrants for all calls which originate in the United States and go overseas," Specter said.
The ACLU's German disputed the extended window, saying "there has not been an adequate showing that they need that extra time."
It remains unclear whether the Senate will take up Specter's proposal during the lame-duck session, as a number of spending bills still await action. An aide to Senate Majority Leader Bill Frist, who sets the schedule, said the issue was "not totally off the table, but time is the problem."
