Specter Still Doesn't Understand His Own Bill

While there's little doubt that Senate Judiciary Committee head Arlen Specter is a smart man, it's pretty clear from his op-ed in the Washington Post on Monday and from this morning's hearing on his proposed surveillance bill that he doesn't understand how radically his bill rewrites the nation's surveillance laws.

One of the major changes the bill (S. 2453) makes (and the one that nearly every blogger has picked up on) is to amend the Foreign Intelligence Surveillance Act so that it no longer says that the statute is the only way the government can spy on suspected terrorists or spies inside the United States.

Instead, the new bill says that the only way to do such spying in the U.S. is through the president's constitutional authority or through the FISA Act.

This removes the current tension between the Administration's defense of the ongoing NSA warrantless wire as an extension of the president's wartime powers and its obvious conflict with Congress's intention to regulate such wiretapping.

Specter, in his op-ed and again at today's hearing, said the change was basically meaningless.

Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say.

That's just wrong and Specter clearly shows he doesn't understand a basic tenet of constitutional law regarding separation of powers. And, more simply, if this is true, then why did the administration insist on that language?

Professor Orin Kerr, an expert on surveillance laws who thinks Spector's "efforts to hammer out a compromise over the NSA program are very admirable," nails why Specter's logic is flawed:

I think Senator Specter is mixing two questions when he writes that "[t]he president's constitutional power either exists or does not exist, no matter what any statute may say." There are actually two distinct questions here: The president's constitutional power to act without Congress's explicit approval, and the president's constitutional power to act in the face of Congress's explicit disapproval. The two are not the same.

Specter is ignoring a key ruling on presidential power, known as Youngstown, which established that a president 1) has the widest authority when working within Congress's limits, 2) has broad, but more limited, authority to use his powers when Congress hasn't passed a law regulating that area and 3) is at his lowest power when in conflict with laws passed by Congress.

That's exactly why the Supreme Court just ruled in Hamdan that the Guantanamo trials were illegal -- because Congress had already set rules about the treatment of prisoners of war. That's exactly what the Washington Post's editorial page argued today.

The odd thing is that Specter thinks he's pulling the reins back on the Administration, when its clear from a close reading of the bill that Specter is the one being ridden.

Hell, he wrote this bill in close consultation with the White House, but since Specter isn't on the Intelligence Committee, he still hasn't been briefed on the details of the NSA's warrantless wiretapping program.

Note the first line from his op-ed:

President Bush's electronic surveillance program has been a festering sore on our body politic since it was publicly disclosed last December.

Like most mainstream news commentators and most bloggers, Specter has yet to address his proposed bill's radical changes to the FISA procedures, namely the changes made to Section 1802.

I outlined these changes in a long post from last week but here's the relevant change:

[T]here are a huge number of changes in the bill regarding how the executive branch can bypass the secret court, including one provision that would make it possible for the government to never have to use the court at all.

The current wiretapping statute leaves open a provision that allows the Attorney General to authorize on his own authority wiretaps of foreign embassies. That's because foreign embassies have always been thought of as de facto foreign soil. The only catch was that the surveillance had to only catch communications between agents of a foreign power AND that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

The new bill expands the definition of an agent of a foreign power and removes the prohibition on surveillance that might target Americans. The bill also redefines the term Attorney General to mean the Attorney General and anyone that he designates his authority to. The Attorney General can also order any electronic or communications service or a landlord to secretly help without telling anyone. They have no legal way to protest such an order.

The only limitation left is that communications that aren't found to be about terrorism have to be "minimized," which means blacked out in some manner after a government agents reads the email or listens to the call and finds it non-incriminating.

So, under Specter's bill, the Attorney General could order AOL, Yahoo and Microsoft to send a copy of every instant message to the government, every credit card company to send a copy of every transaction of every one of its customers, and every email provider to siphon off to the FBI a copy of every email sent by and to Americans -- all WITHOUT ever seeing a judge. And none of these companies or organizations could say anything publicly or contest the order in court (though they would get paid for the service).

If this bill passes, the Attorney General could also decide that getting warrants from the secret court (which they did more than 2,000 times in 2005) was too burdensome. Instead, he could deputize the Special-Agents-In-Charge at each FBI branch in the country and instead of proving to a court that they have reason to spy on someone, they simply write their own warrants.

I'd love to hear someone tell me my reading of the bill is wrong.

And for those of you who want an analysis of Specter's schizophrenia on this issue, try Michael Scherer's Salon story.

Image: Brooklyn