Whoa, it's been a long time since I posted last!

WASHINGTON -- Sen. Arlen Specter (R-PA) has authored a bill that he hopes will be a compromise between some semblance of Congressional oversight and the Cheney administration's hopes of unbridled executive power. Specter and Cheney brokered a deal in smoke-filled rooms in which they agreed to hold hearings about the administration's illegal, poorly-justified, warrantless wiretapping program in the Judiciary Committee instead of the Intelligence Commitee in exchange for Specter's guarantee that then-Supreme Court nominee Samuel Alito would make it through the Judiciary Committee to the Senate floor.

At first, I thought, "Well, I suppose we have the lesser of two evils, here." I thought Specter was concerned about transparency, as hearings of the Intelligence Committee are often closed to everyone without a security clearance. Turns out it's about power: Specter wanted some leverage in Congress' increasingly one-sided relationship with the administration, which, through a variety of techniques, refuses to allow Congress to question it on any matters, including legislation that Congress passes in order to exercise its constitutional checks on the executive.

Nope. Turns out that Specter just wants Congress' power back, even if he has to screw the American people to get it. S. 2453, an as-yet unnamed bill, would retroactively legalize the president's warrantless wiretapping program, allowing the president to sidestep the provisions of the Foreign Intelligence Surveillance Act of 1978, which requires the president to obtain a warrant from a Foreign Intelligence Surveillance Court before he engages in any wiretapping that involves a caller located in the United States.

But the administration's argument that it needs warrantless wiretaps is bogus.

The administration's major argument in favor of warrantless wiretaps is that the FISA court doesn't move quickly enough for us to keep up with the terrorists, and that the process of obtaining a warrant apparently takes so long that by the time the warrant is issued we may no longer be able to surveil the terrorists. "We use FISA still -- you're referring to the FISA court in your question -- of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect," said President Bush in a Dec. 19, 2005 press conference.

Unfortunately for the president, FISA does not require the president to obtain a warrant before initiating surveillance. 50 U.S.C. 1802 says that "the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" as long as the Attorney General follows several reporting requirements, one of which is that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." In other words, such spying must be between two people who are neither U.S. citizens nor U.S. nationals. This certification must be transmitted, under seal, to the Chief Justice of the U.S. Supreme Court and both the House and Senate Select Intelligence Committees. As far as we know, neither of these conditions has been met. President Bush claims that he's kept some members of Congress in the know about the wiretapping, but many members say that they never heard anything about it.

Also, FISA allows the president to begin to engage in warrantless wiretapping for a period of 72 hours before submitting a warrant application to the FISA court, whereupon the initial surveillance could be retroactively permitted.

Nevertheless, no application for a warrant has ever been submitted to the FISA court. President Bush has ignored the express intent of Congress -- as noted in FISA -- and in doing so has violated the law, which requires that he eventually obtain a warrant from the FISA court. Average citizens are not permitted to ignore the law whenever they feel it convenient; our president should be held to no less a standard. The president -- or his agents -- should be arrested for violating federal law and the justification that he has some sort of expanded powers in times of war should be evaluated by federal judges and put to sleep once and for all.

Additionally, the FISA court isn't very strict at all. Since 1978, when the court was created, it has outright rejected only four foreign intelligence surveillance applications out of thousands submitted between 1978 and 2005. Many applications are not rejected, but are instead amended by the FISA court judges, asking the submitters to modify parts of the application before it will be approved.

The FISA court is pretty much a done deal. Why, then, would the Bush administration want to bypass even such a rubber-stamp authority? Possibly Cheney felt that the activities of the program were so illegal that even the FISA court wouldn't approve them, and he couldn't risk details of the program's illegality being leaked to the public.

Now, Arlen Specter seeks to submit to his handlers and legalize warrantless wiretapping. The preamble to the legislation makes a big talk that keeping our nation safe is the responsibility of all three branches of government -- and then proceeds to exempt the executive from checks upon him by the judicial branch. It's as though the legislature and the executive are in cahoots to shut the judiciary (which is, coincidentally, the most independent branch of government) out of any decision-making, as the judiciary might actually challenge the executive's authority. And, hey, it's an election year: we can't have it appear as though the legislators are siding with the judiciary!

Here are some changes made to FISA by Specter's bill:

• Targets no longer have to be named "where it is not technically feasible to name every person or address every location to be subjected to electronic tracking." This is called a dragnet, and it comes from the way that fisherman used to drag giant nets under their boats to catch any fish they could. In law enforcement, a dragnet is an open invitation to surveil anyone who might be involved without naming names. In this way, the president no longer has to say that "X" is the subject of surveillance; he can surveil everyone and claim that "it is not technically feasible" to surveil everyone, and thus he is not subject to a warrant requirement. All the president has to do is create the situation governed by this section, and he will not need a warrant.
• If anyone objects to foreign intelligence surveillance, and demands review, then the case can be sent to the FISA court -- which is top-secret -- if the information under review would "harm the national security of the United States." This means that if the EFF wanted judicial review, the review would be completely blocked from public view if the president wanted it to be (and of course he would want it to be).
• Whereas FISA required that a "United States person" (a U.S. citizen or national) not be involved in the wiretapping, under Specter's amendments, a "United States person" is now subject to wiretapping if the Attorney General believes him to be "a person reasonably believed to have communication or be associated with a foreign power that is engaged in international terrorism activities."
• Language that only allowed the president to engage in international surveillance only as set forth in FISA has now been modified to give him the ability to engage in such surveillance under the guise of any law or his "Constitutional authority," which, as we have seen, has been interpreted very liberally by Cheney.
• Releases from criminal prosecution anyone who furnishes foreign intelligence information to the U.S. government, like, oh ... AT&T. (This same provision, though, exists in FISA now, but I guess they felt the need to reiterate it.)

While this bill doesn't remove the warrant requirement, it significantly degrades the standard of evidence for obtaining a warrant, and, more importantly, allows U.S. citizens and nationals to be the subject of electronic surveillance, something that was previously forbidden by FISA.