Legalizing Warentless Wiretapping

New legislation that would rewrite the rules governing foreign surveillance wiretaps is making its way through the Senate Judiciary Committee. The legislation's content is predictable: The GOP-controlled Congress is giving the President essentially what he wants, by approving his NSA wiretapping program.

What's surprising, however, is that it appears Committee Chairman Arlen Specter - previously a critic of warrantless wiretapping - is fully on board with the legislation. Based on his public statements, the key to Specter's support is his belief that the legislation sets up a meaningful judicial review of the whole wiretapping program, as well as of the President's authority in this area.

But the proposed legislation seems to do the opposite of what Specter says he intends. Far from ensuring meaningful judicial review of the President's power to engage in warrantless wiretapping, it seems the proposed legislation all but ensures judicial approval of the NSA wiretapping program -- even if the President continues to ignore the FISA court process that he now claims he is willing to honor.

Of course, the proposed legislation raises a host of profound questions. But for present purposes I will limit my consideration to the way it subtly (or perhaps not so subtly) changes the basic constitutional questions that will face a court when the program, under the new statute, is ultimately reviewed.

The Controversial Program, and Specter's Prior Position

The Bush Administration's program of secret warrantless wiretaps has been controversial ever since it was first revealed. Critics charge that the Administration violated the Foreign Intelligence Surveillance Act (FISA) by bypassing the secret FISA Court -- which Congress established more than 30 years ago as the exclusive vehicle for authorizing foreign surveillance wiretaps.

In defense, the Bush Administration has claimed that the President's inherent constitutional power to fight the war on terror justified the bypass of Congress' legislation, and thus of the FISA Court.

Specter put himself on record long ago as a skeptic when it comes to such claims. Indeed, as recently as last week, Specter continued to hound the Administration over its handling of the warrantless wiretap issue. Though sharp questioning, Specter got Attorney General Alberto Gonzales to admit that President Bush had personally intervened to scuttle an internal Department of Justice review of the controversial program.

The legislation that's pending in the Judiciary Committee - touted as a compromise - is meant to resolve the issue, and to quiet those who would make an issue out of Bush's aggrandized view of his own power. The proposed law has been touted as a compromise between the Administration and its critics - one that purportedly has Bush acquiescing in the need to have the FISA Court approve foreign intelligence wiretaps.

In fact, this legislation is no compromise. It aims to render the Executive's compliance with FISA voluntary - and that's Attorney General Gonzales's interpretation, not just my own. It also aims to ensure that no meaningful judicial evaluation of the Bush program will ever take place.

Under FISA, as noted above, the FISA Court is the one-and-only authority for granting permission for foreign intelligence wiretaps; circumventing the FISA Court is illegal, and indeed, a federal crime.

But under the new legislation, this would no longer be the case. Instead, the Executive branch could authorize its very own wiretapping, of its own accord.

To this effect, the proposed legislation adds an explicit disclaimer that the legislation "shall not be construed to limit the constitutional authority of the president to collect" foreign intelligence. And it expressly permits foreign intelligence wiretapping not only as authorized by FISA, but also "under the Constitution" - a clear reference to the President's purported independent power to surveil, which the Administration claims stems straight from our founding document.