Posted by Randy Gainer

Senate Bill S. 2453, which the Judiciary Committee passed 10-8 on a party-line vote on September 14th, would allow the President to ignore the restrictions on domestic surveillance passed by Congress in 1978. As the lawyers at Steptoe and Johnson described in their E-Commerce Law Week report : “S. 2453 would significantly . . . dramatically increase the Executive Branch’s authority to engage in surveillance without any court order at all. . . . [A]lthough the bill purports simply to acknowledge the President’s constitutional authority to engage in warrantless surveillance, without affecting that authority, the bill would actually alter the legal terrain significantly and make it more likely that courts would uphold the constitutionality of the NSA’s warrantless wiretapping program. This means the government could demand that communications providers assist with wiretaps even where there is no court order and no statutory authorization at all.”

Prof. Orin Kerr, in a September 14 post on the Volokh Conspiracy, asks “What explains Congress’s apparent openness to the Specter NSA bill given the very rough ride that the Patriot Act renewal bills encountered just a few months ago?” Prof. Kerr suggests several possible explanations, including:


“1. The comparison is premature. The Senate Judiciary Committee isn’t representative of Congress as a whole. The bill is out of Committee in the Senate, but it will encounter major roadblocks elsewhere that will kill the current version of the legislation.

“2. Most members of Congress and their staffers don’t particularly understand this complex area of law. The intricacies of surveillance law can be just a big blurry mess to them, and they don’t fully realize the scope of the NSA bill.

“3. Key figures in the Bush Administration really care about this one, whereas they didn’t care about the Patriot Act renewal. Informed insiders in the Bush Administration surely knew that the controversy over the Patriot Act didn’t matter much, and so they were happy to keep it a low priority. In contrast, this one is a biggie, and so they’re pushing really hard for it.”

Let’s hope that the first explanation is correct and that the Senate as a whole will defeat the bill if it is scheduled for a vote. Perhaps Democrats will assure that the bill is not passed, as Sen. Reid has been quoted as saying they will. However the bill is killed, the Washington Post was correct when it stated in an editorial in July: Senator Specter’s bill “must not pass. . . . This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power.”