More False "Compromises" on Wiretapping
We wish we could offer you some good news on the warrantless wiretapping front, but everything we hear seems to get grimmer. Below is the text of a press release we sent out today regarding the latest developments in support of the dangerous Cheney-Specter proposal. .... CDT Calls Changes to Senate Wiretapping Bill "Meaningless" Three Senators today indicated that they would support Senator Arlen Specter's (R-Pa.) warrantless wiretapping bill in response to changes made to the legislation since it was first introduced. The announcement represents the latest of many attempts by bill supporters to paint wiretapping legislation as some sort of compromise. This is simply not the case. The changes to the Specter Bill cited by Senators Larry Craig (R-Idaho), John Sununu (R-N.H.) and Lisa Murkowski (R-Alaska) are meaningless. The version of the bill introduced by Majority Leader Bill Frist (R-Tenn.) would be just as disastrous -- from both a national security and a privacy standpoint -- as previous iterations, Center for Democracy & Technology Policy Director Jim Dempsey said today. "This bill hasn't changed for the better since Senator Specter and Vice President Dick Cheney unveiled it earlier this year. The provisions that threaten to undermine our privacy and erode -- rather than strengthen -- our national security remain very much intact. Although we are eager for Congress to do something to limit this administration's program of illegal, warrantless wiretapping, this bill is not the answer. Indeed, it would be better for Congress to do nothing than to pass this measure, which not only validates the administration's program, but also grants sweeping new powers to all future Presidents," Dempsey said. The Senators specifically cited the deletion of language they said raised questions about the roles Congress and the Executive Branch play in regulating surveillance activity within the United States. The deleted language was meaningless. The current version of the bill still repeals the exclusivity provision contained in the Foreign Intelligence Surveillance Act (FISA), thereby rendering FISA's judicial review provisions optional. The amended bill will still encourage the President to proceed with electronic surveillance of US citizens without judicial approval. The Senators also cited language they say clarifies the scope of the Foreign Intelligence Surveillance Court's authority to review and approve, not only electronic surveillance programs, but also surveillance of specific individuals identified by an approved electronic surveillance program. Under this provision, supporters say, once an electronic surveillance program has identified an individual of interest, further FISC approval is needed to ensure that an individual's Fourth Amendment rights are not violated. This is misleading. First, it must be made very clear that under the Cheney-Specter proposal, there would no longer be any "must" under FISA. Under Chairman Specter's proposal, all of FISA's requirements become voluntary, including the section on programmatic warrants. Secondly, the language regarding an individual order only applies if the individual meets the standards for a regular FISA order -- that is, if there is probable cause to believe that the specific person is a terrorist. If the person is not suspected of engaging in terrorism or espionage or otherwise being an agent of a foreign power, then he doesn't "satisfy the criteria for an application under section 104 for an order" and surveillance can continue without a warrant. That is illogical, of course (known bad actors gets the benefit of court proceedings, while surveillance of innocent people can continue without a warrant), but that is what happens when you tinker with a complex statute like this.