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Specter Proposes NSA Surveillance Rules
Measure Would Make Administration Seek FISA Court's Permission to Eavesdrop

By Charles Babington
Washington Post Staff Writer
Sunday, February 26, 2006; A11

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago.

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An analysis of Specter�s legislation must begin with the still-staggering observation that this legislation would become effective not merely by Congress enacting it (even over a veto), but instead, only by the President agreeing to be bound by the law.

In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey).

The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law.

In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide � in secret � to violate the law. That�s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.

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Highlights of Specter's proposed legislation

In essence, Specter�s proposed legislation abolishes FISA�s requirement that FISA warrants be obtained for each eavesdropping target. Instead, the Administration would be free to eavesdrop without warrants as part of any warrantless eavesdropping program provided that it obtains permission for each such program from the FISA court -- permission which it must obtain every 45 days (Sec. 702(a)).

For any warrantless eavesdropping program the Administration wishes to implement, the Attorney General is required to submit an affidavit to the FISA court every 45 days detailing a wide range of information about the program (sec. 703(a)(1-14)), including:

(4) a statement that the surveillance sought "cannot be obtained by conventional investigative techniques" or by obtaining a FISA warrant;

(6) "the means and operational procedures by which the surveillance will be executed";

(7) a "statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted" is an agent of a foreign power" or a "person who has had communication with the foreign power" and,

(14(D)) "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program."

Even under such warrantless eavesdropping programs, surveillance of a person without a warrant is authorized only for 90 days, after which a warrant is required (Sec. 703(a)(12)).

Specter�s bill requires submission to the FISA court for approval of all warrantless eavesdropping programs -- i.e., not only the specific warrantless eavesdropping program which the New York Times disclosed, but any and all currently illegal eavesdropping programs. It thus requires FISA court approval of the program "sometimes referred to as the �Terrorist Surveillance Program� and discussed by the Attorney General before the Committee on the Judiciary . . . on January 6, 2006," and further requires "approval of any other electronic surveillance programs in existence on the date of enactment of this title that have not been submitted to the Foreign Intelligence Surveillance Court." Sec. 702(e)(2).

For each program for which the Administration seeks approval, the FISA court is required to authorize the program if, in essence, it finds (Sec. 704(a)(2-3)) that the eavesdropping program is consistent with constitutional guarantees (i.e., the Fourth Amendment) and that:

[T]here is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.

But critically, beyond this provision, the legislation vests substantial discretion in the FISA court to determine "whether the implementation of the electronic surveillance program supports approval of the application . . . " (Sec. 704(b)).

In other words, the FISA court is required to compare the information obtained by the program to be approved for three prior 45-day periods to determine that it has been implemented in accordance with the proposal submitted to the FISA court by the Administration. The FISA court may approve of the program only if it finds that the "benefits of the electronic surveillance program" justifies its authorization, and that it is being implemented consistently with the proposal previously submitted to the FISA court by the Administration. If it does not so conclude, it can (and must) reject the application. That is rather substantial and broad discretion to vest in the FISA court.

There is also a provision in the legislation for Congressional oversight. Section 705 requires submission of a detailed report to the Chairs and ranking members of the Senate and House Intelligence Committees every 45 days. The report must include a description of the information obtained by the program and the means and procedures by which the information was obtained.

A few other notes about the legislation:

(a) it allows warrantless eavesdropping programs not only for international calls from or to the U.S., but purely domestic communications as well;

(b) it expressly excludes from the approval requirement pure data mining activities or the obtaining of information reflecting the details of one�s communications short of the content of the communications -- i.e., the requirements "do not apply to information identifying the sender, origin or recipient of the electronic communications . . . that is obtained without review of the substance of the electronic communication." Sec. 702(d)(2); and,

(c) this legislation is clearly intended to supplant, not supplement, Specter�s prior announced intention to require submission to the FISA court of the question of the program�s legality.

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Sen. Feingold Calls for Censuring Bush

Potential Democratic White House Contender Feingold Proposes Censuring Bush Over Eavesdropping

By DOUGLASS K. DANIEL Associated Press Writer
The Associated Press

WASHINGTON - A liberal Democrat and potential White House contender is proposing censuring President Bush for authorizing domestic eavesdropping, saying the White House misled Americans about its legality.

"The president has broken the law and, in some way, he must be held accountable," Sen. Russ Feingold, D-Wis., told The Associated Press in an interview.

A censure resolution, which simply would scold the president, has been used just once in U.S. history against Andrew Jackson in 1834.

Senate Majority Leader Bill Frist, R-Tenn., called the proposal "a crazy political move" that would weaken the U.S. during wartime.

The five-page resolution to be introduced on Monday contends that Bush violated the law when, on his own, he set up the eavesdropping program within the National Security Agency in the months following the attacks of Sept. 11, 2001.

Bush claims that his authority as commander in chief as well as a September 2001 congressional authorization to use force in the fight against terrorism gave him the power to authorize the surveillance.

The White House had no immediate response on Sunday.

The resolution says the president "repeatedly misled the public" before the disclosure of the NSA program last December when he indicated the administration was relying on court orders to wiretap terror suspects inside the U.S.

"Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president," Feingold said. "And, hopefully, he will acknowledge that he did something wrong."

The Wisconsin Democrat, considered a presidential contender for 2008, said he had not discussed censure with other senators but that, based on criticism leveled at Bush by both Democrats and Republicans, the resolution makes sense.

The president's action were "in the strike zone" in terms of being an impeachable offense, Feingold said. The senator questioned whether impeaching Bush and removing him from office would be good for the country.

In the House, Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee, is pushing legislation that would call on the Republican-controlled Congress to determine whether there are grounds for impeachment.

The program granted intelligence officers the power to monitor without court approval the international calls and e-mails of U.S. residents, when those officers suspect terrorism may be involved.

Frist, appearing on ABC's "This Week," said that he hoped al-Qaida and other enemies of the U.S. were not listening to the infighting.

"The signal that it sends, that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that is making our homeland safer, is wrong," Frist said.

Sen. John Warner, R-Va., said on CNN's "Late Edition" that Feingold's announcement on a Sunday talk show was "political grandstanding. And it tends to weaken our president."

A longtime critic of the administration, Feingold was the first senator to urge a withdrawal timetable for U.S. troops in Iraq and was the only senator to vote in 2001 against the USA Patriot Act, the post-Sept. 11 law that expanded the government's surveillance and prosecutorial powers. He also voted against the 2002 resolution authorizing Bush to use force in Iraq.

Jackson was censured by the Senate in 1834 after he removed the nation's money from a private bank in defiance of the Whig Party, which controlled the Senate.

On Feb. 12, 1999, the Senate failed to gain enough votes to bring a censure resolution against President Clinton. The Senate had just acquitted Clinton after the House impeached him in December 1998, accusing him of committing perjury and obstructing justice in the Monica Lewinsky affair.

Impeachment is the only punishment outlined in the Constitution for a president. But the Constitution says the House and Senate can punish their own members through censure.

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Originally posted by Lee:
Treachery! Curse the traitor Emmanuruss Feingoldstein! Americania is at war with Irania! Americania has always been at war with Irania!

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Mark Noonan Calls for Censure of Senator Feingold

As Sister Toldjah noted earlier, Senator Russ Feingold (Defeaticrat-WI) has called for the censure of President Bush over the NSA program which gathers signals intelligence on our terrorist enemies.

Given that the only possible beneficiaries of such an action are the terrorist enemeis of the United States, I believe that we should urge the Senate to censure Senator Feingold for giving aid and comfort to the enemy. I would ask for his expulsion from the Senate, but as that requires a 2/3 vote its a non-starter - the Democrats, for whom political power is the be-all and end-all of existence, simply would not vote to harm one of their own. Censure, though, only takes a majority vote. There are 55 Republican Senators, and even a few Democratic Senators who haven't driven off the anti-war cliff.

It is way past time that we started holding Democrats accountable for their actions. For too long they have been able to slander President Bush, the Bush Administraiton, the American military and our allies in the War on Terrorism with no consequences for their destructive actions. How many people are dead today because the Democrats have chosen to use the war as a partisan political issue? How many more will die in the future because of it?

Every time a senior Democrats gets up in public and calls for an immediate withdrawal, or accuses American soldiers of abuses, or slanders the motives and statements of President Bush, it encourages the enemy. It helps the enemy to recruit more bomb-laden fanatics who can be convinced that the United States is about to quit because a Pelosi, Kennedy, Kerry or Feingold just said on national TV that "X" about the American effort is wrong or a failure. The free ride has gone on too long, and it is time for the patriots to smack down these people with firmness and let the enemy know that we will fight them until victory.

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How many people are dead today because the Democrats have chosen to use the war as a partisan political issue? How many more will die in the future because of it?

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