Conflicting Bills on Warrantless Surveillance Advance in Senate

The Senate Judiciary Committee set the stage for further congressional debate over warrantless electronic surveillance by reporting out competing bills that are mutually contradictory.

A bill (S. 2453) sponsored by Committee Chairman Arlen Specter would sharply diminish judicial oversight of intelligence surveillance under the Foreign Intelligence Surveillance Act and expand unilateral presidential authority. On the other hand, a bill (S. 3001) sponsored by Senator Dianne Feinstein would reaffirm that FISA is the exclusive mechanism for conducting domestic intelligence surveillance, while making certain modifications in the Act. A third bill (S. 2455), sponsored by Sen. Mike DeWine, was also reported out.

“The [Specter] bill makes compliance with FISA entirely optional, and explicitly validates the President’s claim that he has unfettered authority to wiretap Americans in the name of national security,” said Sen. Patrick Leahy (D-VT) in a critical commentary.

“I have been briefed on the terrorist surveillance program,” said Sen. Feinstein, “and I have come to believe that this surveillance can be done, without sacrifice to our national security, through court-issued individualized warrants for content collection on U.S. persons under the FISA process.”

“So I have offered this provision to ensure that the program is carried out under the law and to make it clear that FISA remains the exclusive authority for the content collection on U.S. persons,” she said.

Sen. Jay Rockefeller (D-WV) charged that the Bush Administration had deliberately withheld information about the surveillance program from Congress to frustrate congressional oversight.

“This refusal to respond to legitimate information requests from the Oversight Committee, combined with the administration’s over-restriction of member and staff access to the NSA program, is part of a cynical White House strategy to prevent Congress from either acting or forcing it to legislate on vital national security and privacy issues in the dark,” he said.

Sen. Russ Feingold concurred that due to excessive secrecy, “The Judiciary Committee was left to legislate in the dark, with many members blindly seeking to legalize illegal behavior without even an understanding of whether those changes are actually necessary.”

Meanwhile, in the House, a bill sponsored by Rep. Heather Wilson (R-NM) faced opposition from the Bush Administration and its Congressional allies, as well as from civil libertarians.

The bill was examined in detail in a new report from the Congressional Research Service. See “H.R. 5825 (109th Congress): ‘Electronic Surveillance Modernization Act'” (pdf), September 8, 2006.

The various competing bills were discussed, and notably analyzed by James X. Dempsey of the Center for Democracy and Technology, in a September 6 hearing of the House Judiciary Committee on “Legislative Proposals to Update the Foreign Intelligence Surveillance Act.”

The full hearing record of three Senate Judiciary Committee hearings earlier this year on “Wartime Executive Power and the National Security Agency’s Warrantless Surveillance Authority” has just been published (908 pages).