License to wiretap

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ARLEN SPECTER WAS one of the first members of Congress to raise questions about the National Security Agency’s warrantless wiretapping of Americans. So Americans who value their privacy should welcome his agreement with the Bush administration to bring NSA spying under judicial oversight, right?

Wrong. There is less to this “breakthrough” than meets the eye. Yes, the legislation proposed by Specter, the Pennsylvania Republican who is chairman of the Senate Judiciary Committee, has been approved by the White House and would bring the administration’s program under the purview of a special federal court that approves wiretaps of U.S. citizens suspected of being an agent of a foreign power. But it would do so at the cost of undermining that court’s responsibility to scrutinize individual requests for electronic surveillance.

That court, known as the Foreign Intelligence Surveillance Act court for the law that created it, was the watchdog that didn’t bark in the NSA controversy. To his credit, Specter was among those in Congress who called for bringing the NSA into the FISA framework. In addition to offering his own bill, Specter endorsed one by Sen. Dianne Feinstein (D-Calif.) reaffirming the role of the FISA system.


Unfortunately, that is not the bill Specter has sold to the Bush administration.

Instead, President Bush and Atty. Gen. Alberto R. Gonzales have signed on to a different Specter proposal under which the FISA court would not authorize individual wiretaps or e-mail intercepts, but rather would rule on whether an entire program was constitutional and “reasonably designed to ensure” that intercepted communications had a terrorist connection. By definition, this “program-wide” review would pay less attention to the privacy rights of individuals whose calls might be monitored.

Assigning this broader role to FISA opens up a can of legal and constitutional worms. For example, if the FISA court -- and its appellate division -- ruled that a proposed surveillance program was unconstitutional, the government apparently could petition the Supreme Court for review. But the high court would be ruling not on a specific case or controversy but on the legality of the program as a whole, which is hard to square with its long-standing refusal to issue “advisory opinions.”

The Specter compromise has other weaknesses, traceable to the desire to win White House support. For example, the bill does not require that the president seek FISA court review of electronic surveillance programs, though Bush apparently has agreed to do so. Specter said he was deferring to Bush’s desire not to bind his successors, but in a piece of legislation designed to reinforce the rule of law, it is incongruous to make presidential compliance voluntary.

Specter is right that the wiretapping should be tethered to FISA. But the way to do that is to require the government to secure the FISA court’s approval for individual NSA surveillance operations. Specter deserves credit for demanding that the administration obey the law when it spies on Americans. But his compromise solution is too much of a compromise and not enough of a solution.