Posted by Randy Gainer

The Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1811, currently makes FISA court orders and judicial warrants issued in criminal proceedings the exclusive means by which the President and other executive branch officials may lawfully intercept telephone calls and emails sent or received by people in the United States.  Section 109 of FISA, codified at 50 U.S.C. §1809(a), states in pertinent part:  “A person is guilty of an offense if he intentionally – (1) engages in electronic surveillance under color of law except as authorized by statute . . . .”  In other words, with certain exceptions, “electronic surveillance of a foreign power or its agents may not be conducted unless the FISA Court authorizes it advance.”  ACLU Foundation of S. Cal. v. Barr, 952 F.2d 457, 461 (D.C. Cir. 1991).  

Congress adopted FISA in 1978 to curb abuses by the NSA, which were documented by the Senate Committee chaired by Senator Frank Church.  The NSA abuses included the interception of telephone calls of Americans.  See Vol. II of the Church Committee Report, 308-09 (1978).  The Church Committee stated: "To the extent other agencies are required to obtain a warrant before monitoring the communications of Americans, the NSA should be required to obtain a warrant."  Id. 

Senator Specter recently revised his pending bill, S. 2453, to eliminate the protections that Congress adopted in 1978.  Section 9 of Senator Specter’s bill would rewrite FISA section 109 to state "A person is guilty of an offense if he intentionally – (1) engages in electronic surveillance under color of law except as authorized by statute or under the Constitution." That and other similar changes in the bill would engraft into FISA the executive’s "Article II on steroids" argument that the President has constitutional authority to conduct electronic surveillance of Americans for foreign intelligence if he believes it’s appropriate.  Section 9 of Specter’s bill confirms that intent by proposing that a new section 801 be added to FISA that would state:  "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers."

Senator Specter’s bill has been condemned in blogs as "a complete and total sham", as a bill "that gives the Administration everything it wanted", as "ludicrous policy", and one that "largely tracks the David Addington/John Yoo approach to Article II".   The Washington Post condemned Senator’s Specter’s proposal as "a very dangerous bill" that would "legitimize not only what the NSA may be now be doing but lots of other surveillance it might dream up".

Senator Specter claims that "[t]he bill does not accede to the president’s claims of inherent presidential power; that is for the courts to either affirm or reject.  It merely acknowledges them, to whatever extent they may exist."   The fallacy of that argument can be seen by looking at the currently pending cases that have challenged the NSA domestic surveillance program.  The plaintiffs claim that the NSA is violating section 109 of FISA, among other statutes and constitutional protections, because the NSA did not get warrants before it intercepted the telephone calls and emails of U.S. residents.  See, e.g., Judge Vaughn Walker’s order denying the defendants’ motions to dismiss in Hepting v. AT&T, at 2 .  The Specter bill is transparently intended to eliminate such claims.

Senator Specter’s bill is no compromise; it is the Bush Administration’s fallback, legislative defense to the cases that challenge the NSA’s domestic surveillance program.  If the courts agree that FISA prohibits the NSA domestic surveillance program, the Administration will have a bill ready to try to overrule that part of the courts’ rulings. 

It should not be surprising that the Administration would have a legislative fallback plan.  It will be surprising if anyone accepts Senator Specter’s claim in paragraph 17 of the preamble of his bill that the bill protects "the civil liberties and constitutional rights that we cherish."