Fact
Sheet - Senator Specter's NSA Wiretapping Bill Still a Failure
September 25, 2006
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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