Tech-SHOW

By a 10-8 vote, the Senate Judiciary Committee approved S.2453, the "National Security Surveillance Act," (.pdf) which was co-written by the committee's chairman Senator Arlen Specter (R-Penn) in concert with the White House.

The committee also passed two other surveillance measures, including one from Senator Dianne Feinstein, one of the few senators to be briefed on the NSA program. Feinstein's bill, which Specter co-sponsored before submitting another bill, rebuffs the administration's legal arguments and all but declares the warrantless wiretapping illegal.

In contrast, Specter's bill concedes the government's right to wiretap Americans without warrants, and allows the U.S. Attorney General to authorize, on his own, dragnet surveillance of Americans so long as the stated purpose of the surveillance is to surveill suspected terrorists or spies.

Lisa Graves, senior legislative counsel for the ACLU, called the bill "stunning."

"The administration has taken their illegal conduct in wiretapping Americans without court orders, in violation of the Foreign Intelligence Surveillance Act and the Constitution, and used it as springboard to not only get FISA changed to allow the Terrorist Surveillance Program, but to actually, going forward, not give protections to American's privacy rights," Graves said.

Jim Dempsey, the policy director for the more moderate Center for Democracy and Technology, described the bill's passage out of committee as "light years or miles beyond the Patriot Act."

"What started out as Senator Specter wanting to rein in the president's program has turned on its head and is now not just a legislative ratification of the program, but an expansion of warrantless wiretapping of Americans," Dempsey said. "It would allow the NSA to turn its vacuum cleaners on even domestic phone calls and e-mails of citizens.

"They do all of this in Alice-in-Wonderland fashion by defining all kinds of categories of surveillance to be not surveillance," said Dempsy.

Specter, who called NSA's warrantless surveillance a "festering sore on our body politic", champions his bill, since it allows, but does nor require, the Administration to submit the whole surveillance program to review by a secretive court. Specter says President Bush promised to submit the NSA program to the court, if the bill passes.

The bill also strikes from U.S. law a requirement that that all surveillance of suspected spies and terrorists be done in accordance with FISA. But an aide for Specter disputes that this radically changes FISA or the balance of powers: Specter considers this to be an update to FISA, that moves the law towards where technology is now, according to the aide who spoke on background.

President Bush has acknowledged the NSA program monitors Americans' international phone calls and e-mails without court authorization, but says the program only targets communications where one side or the other have suspected terrorist connections.

Feinstein says her briefings lead her to believe the current system needs only minor changes, such as increasing the number of judges that issue warrants.

"I have been briefed on the terrorist surveillance program, and I have come to believe that this surveillance can be done, without sacrifice to our national security, through court-issued individualized warrants for content collection on U.S. persons under the FISA process," Feinstein said Wednesday in a press release.

That program has recently been declared unconstitutional by a federal judge in Detroit, and is being challenged by more than 20 lawsuits across the country.

The bill:

• Redefines surveillance so that only programs that catch the substance of a communication need oversight. Any government surveillance that captures, analyzes and stores patterns of communications such phone records, or e-mail and website addresses, is no longer considered surveillance.
• Expands the section of law that allows the Attorney General to authorize spying on foreign embassies, so long as there's no "substantial likelihood" that an American's communication would be captured.
• Repeals the provision of federal law that allows the government unfettered wiretapping and physical searches without warrants or notification for 15 days after a declaration of war. The lack of any Congressional restraint on the president's wartime powers arguably puts the President at the height, rather than the ebb, of his powers in any time of war, even an undeclared one.
• Repeals the provision of federal law that limits the government's wartime powers to conduct warrantless wiretapping and physical searches to a period of 15 days after a declaration of war.
• Repeals the provision of federal law that puts a time limit on the government's wartime powers to conduct warrantless wiretapping and physical searches against Americans. Under current law, the president has that power for only 15 days following a declaration of war.
• Allows the Attorney General, or anyone he or she designates, to authorize widespread domestic spying, such as monitoring all instant messaging systems in the country, so long as the government promises to delete anything not terrorism-related.
• Moves all court challenges to the NSA surveillance program to a secretive court in Washington D.C. comprised of judges appointed by the Chief Justice of the Supreme Court. Only government lawyers would be allowed in the courtroom.
• Allows the government to get warrants for surveillance programs as a whole, instead of having to describe to a judge the particular persons to be surveilled and the methods to be used.

A markup of the corresponding House bill, sponsored by Rep. Heather Wilson (R-New Mexico) was scheduled for today, but was cancelled.

Specter has moved to have his bill voted next week on via a voice vote, called a unanimous consent motion, according to the ACLU's Graves. Such a procedure would leave no record of who voted for or against the bill.