Senate Judiciary Committee To Blindly Consider NSA Legislation, Fails to Challenge White House Claims of Unlimited Executive Power

June 8, 2006 12:00 am

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WASHINGTON – As the Senate Judiciary Committee prepared to consider legislation today that would effectively approve the warrantless spying on Americans by the National Security Agency, the American Civil Liberties Union expressed its strong disapproval that lawmakers appear ready to accept unprecedented and unconstitutional claims of presidential powers. On Tuesday, Chairman Arlen Specter (R-PA) declined to order a hearing with leaders from telecommunications firms to investigate their involvement with the illegal program.

“Chairman Specter’s current course of ‘action’ in effect surrenders the right of Congress to investigate and oversee this illegal spying program to the Vice President,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “By calling off the telecom hearing in exchange for a vague promise from Vice President Cheney to ‘take a look’ at surveillance legislation written by Specter, Chairman Specter gives the White House far too much power over the legislative process. Congress must assert its independence and be a check on the president, not a rubberstamp.”

The ACLU has urged Congress to delay consideration of legislation related to the warrantless NSA spying until Congress has a clear understanding of the scope of the program. On Tuesday, the chairman refused to notice a hearing with telecom executives and announced that he would not press for subpoenas while the Vice President considered whether his legislation infringed on the inherent presidential powers the administration claims exist. At that meeting, Senate Specter indicated that the committee would defer to the Vice President’s objection to holding hearings with telecommunications companies or other witnesses.

However, on Wednesday, Senator Specter sent a letter to Vice President Cheney voicing his concerns with both the administration’s unwillingness to cooperate with the committee and attempts, by Cheney himself, to pressure members of the Senate Judiciary Committee from meeting their Constitutional requirements to conduct meaningful oversight.

“This is turning into a partisan whitewash of administration wrongdoing,” said Fredrickson. “Our government was designed to have separate branches – each with its own function and role. Sadly, this executive has usurped power – and has done so with the blessing of the majority in the national legislature. We hope that Senator Specter will hold the administration accountable for their obstruction and interference.”

The committee today is expected to consider several pieces of legislation regarding the illegal NSA spying program authorized by President Bush. Both Senators Arlen Specter (R-PA) and Mike DeWine (R-OH) had introduced bills that would effectively ratify the NSA’s illegal eavesdropping on Americans. In addition, Senator Dianne Feinstein (D-CA) has co-authored a bill with Senator Specter that reiterate that the NSA program must follow the procedures of the Foreign Intelligence Surveillance Act (FISA), the law governing national security surveillance of Americans that provide some privacy protections.

Senator Specter’s “National Security Surveillance Act” (S.2453) would essentially end any congressional investigation into the warrantless NSA program by amending FISA to allow the court to approve NSA monitoring of Americans without any evidence they are conspiring with al Qaeda.

He also has a substitute to that legislation written to win administration support by amending the criminal code to allow wiretapping at the direction of the president without any independent check. This move would create a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s direction under a claim of inherent authority and make future court review of surveillance of Americans optional. The bill would also permit the president to claim a right to conduct secret searches of American homes and businesses in wartime.

Senator DeWine’s “Terrorist Surveillance Program Act of 2006” (S. 2455) weakens the probable cause requirement for spying on ordinary Americans, makes judicial review for seeking a court order optional and permits the NSA to engage in its surveillance several weeks without any court oversight at all. Even after 45 days of warrantless surveillance, it would be up to the executive branch to seek judicial approval or bypass it.

The Feinstein-Specter bill would reinforce the long-standing principle that electronic surveillance of Americans must be “conducted pursuant to individualized court orders,” as outlined in FISA and other federal statutes. The bill, S. 3001, the “Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006,” would also streamline the administrative procedures used before seeking approval of the FISA court.

The ACLU has urged Congress to reject any attempts to amend FISA to ratify the NSA’s spying on Americans until the administration provides lawmakers with the information needed to conduct oversight. Thus far, the White House and it allies have stonewalled Congress.

In addition to its legislative efforts, the ACLU has also challenged the NSA’s warrantless wiretapping program in federal court. In legal papers submitted late Monday, the ACLU argued to a federal court in Detroit that the NSA’s spying program is unconstitutional and violates FISA. The court will hear arguments in the case on Monday, June 12.

Also late Monday, the ACLU filed papers with the Federal Communications Commission pointing out that the agency cannot permit a pending merger between AT&T and BellSouth without investigating the merits of allegations that these companies illegally provided customer information to the NSA.

“The administration has continued to conceal from the public critical information about its surveillance of the people in this country,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. “The bills the committee is expected to consider would reward stonewalling by the administration and put a stamp of approval on an illegal program that violates Americans’ right to privacy. We urge the committee to reject these terrible proposals that give the president a virtual blank check to monitor Americans.”

For more on the ACLU’s concerns with the warrantless NSA eavesdropping program, go to:

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