Fact Sheet
from U.S. Senator Russ Feingold:
Senator Specter's NSA Wiretapping Bill Still a Failure
A
new version of the Senator Specter’s S.2453, the National Security
Surveillance Act, was introduced in the Senate on Friday, September
22. But the changes to the bill do nothing to address its core problems,
and in some ways make it worse. Here are some of the ways that the
new version of Senator Specter’s bill still fails:
- Courts and Congress Become Irrelevant: Even with the most recent
changes, the bill still strongly bolsters the Administration’s
argument that the executive branch doesn’t have to follow
the laws that Congress writes, and can wiretap Americans without
judicial involvement. First, the bill repeals the existing law that
says that FISA and the criminal wiretap statute are the exclusive
means for conducting electronic surveillance. Second, the bill amends
the criminal provisions that currently make it a crime to conduct
a warrantless wiretap, so that anyone conducting a warrantless wiretap
under the asserted authority of the President would be immune from
criminal liability. In combination, these changes amount to congressional
approval of the executive branch conducting wiretaps without complying
with FISA.
- Allows Wiretapping of Americans Without Demonstrating a Connection
to Terrorism: The bill still authorizes the government to obtain
constitutionally suspect and broadly defined “program”
warrants, which would permit Americans to be wiretapped without
the government proving to a judge that they have any connection
to terrorism or espionage. In addition, it now states that if the
Attorney General determines that the executive branch can satisfy
the requirements for a FISA warrant, then the government must go
to the FISA court. That means that if the government cannot prove
probable cause that an American is a terrorist or a spy, it does
not need a warrant to read their email and listen to their phone
calls. But if it can meet the probable cause standard, then it would
have to get a warrant. In other words, the weaker the evidence that
the government is relying on, the less likely it is that the government
has to get a warrant to conduct surveillance. This would put the
privacy of Americans’ phone conversations and emails at great
risk.
- Enormous Loopholes to the Warrant Requirement: The bill still
makes the surveillance statutes optional, meaning the Administration
is no longer required to obey the laws that Congress writes in this
area. But then it goes even further and dramatically expands the
statutory authority of the government to read the emails and listen
in on the phone conversations of innocent Americans without a warrant.
The most recent changes do not solve this problem.
- Repeals Patriot Act “Fix”: As part of the Patriot
Act reauthorization process, many Senators advocated for a change
to FISA to ensure that the government could not conduct “John
Doe” roving wiretaps, where neither the individual to be wiretapped
nor the particular phone or computer is identified in the wiretap
order. That change was made in the reauthorization package that
became law earlier this year. The new version of the NSA bill would
repeal that change and reopen the possibility of statutorily authorized
John Doe roving taps.
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