Tuesday, July 18, 2006

No Kudos This Time

 In the past,  I think I've offered kudos for Senator Spectre on more than one occassion.   This can"t be one of those time . plk

When a Compromise Isn't a Compromise

a Talking Point from the Center for American Progress

July 18, 2006

Last week, Senate Judiciary Committee Chairman Arlen Specter (R-PA) announced that he had struck a "compromise" with the White House over the illegal National Security Agency (NSA) domestic spying program. The bill isn't a compromise for President Bush, who would receive a "blank check" to continue operating the program. Specter, however, has compromised his principles. Specter's latest effort to amend the law — which has been inaccurately portrayed by some in the media as a White House "concession" — "is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power."

  • The Specter compromise makes court review optional and expands presidential authority. Specter’s legislation does not require Bush to submit the program to the Foreign Intelligence Surveillance Act (FISA) court; it merely gives him the option. Nothing in the Specter legislation requires the attorney general to obtain court approval before engaging in electronic surveillance. The compromise is a sham because it makes optional what Bush is already required to do. Section 801 of the Specter bill also leaves "open the interpretation that Bush has the power to conduct other surveillance outside FISA's purview, a possibility [Bush] administration officials noted with approval."
  • The compromise does away with the need for individualized warrants. Under FISA, individual requests for foreign intelligence surveillance inside the U.S. may be approved if there is probable cause presented to show that the target is a foreign power or an agent of a foreign power. Under FISA, applications by the government to conduct foreign intelligence surveillance inside the U.S. must show probable cause that the target is a terrorist or spy. The Specter bill repeals this requirement by allowing the FISA court to authorize the entire NSA surveillance program. The Fourth Amendment to the U.S. Constitution explicitly requires particularized suspicion before approval of a warrant.
  • There is a better approach to address the perceived problems with the current law. Rep. Jane Harman (D-CA), the ranking member on the House Intelligence Committee, has introduced a bill that asserts FISA "is the exclusive way to conduct electronic surveillance of U.S. persons and makes clear that any attempt to listen in on Americans, or collect telephone or e-mail records, must be conducted in accordance with FISA or Title III of the criminal code." Another positive approach may be found in an earlier bill on which Specter collaborated with Sen. Dianne Feinstein (D-CA), offering a genuine compromise that would meet the claimed need for greater speed and flexibility. Their bill, which also maintains the exclusivity of FISA, proposes specific, targeted amendments "to address the administration’s need for additional flexibility to pursue intelligence-gathering activities by providing additional resources and streamlining the current FISA procedures." Reps. Adam Schiff (D-CA) and Jeff Flake (R-AZ) also have proposed bipartisan legislation.

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