GOP Senator Specter’s new proposal to “reform” FISA provides immunity to Bush for impeachment based on an illegal NSA surveillance program and provides amnesty from criminal prosecution to Bush, administration officials, Telecom corporate executives and others who participated in the illegal NSA spying. And, it gets worse.

Specter’s proposal essentially eliminates or repeals the FISA law as it was intended to operate and replaces it with Bush’s secret law to continue to conduct surveillance as he wishes. Existing protections for Americans, such as warrants based upon probable cause and independent judicial review are eliminated. In its stead would be a FISA law whose controlling principle is that all provisions must be consistent with Bush’s inherent constitutional presidential authority. The present FISA law would exist in name only as the controlling substantive provisions would be those that codify the legal defenses and standards that serve Bush’s interest.

Prior drafts of proposed FISA legislation constituted implied Congressional ratification of Bush’s prior illegal NSA spying programs, thereby rendering by law that his prior illegal acts were now legal. Specter’s new proposal provides express Congressional ratification that  validates Bush’s prior illegal acts in the NSA spying programs by mandating that these provisions are retroactive to when FISA was enacted, years before Bush’s tenure commenced.

Sen. Specter recently circulated a new substitute to the evolving FISA “reform” legislation of S. 2453.  This 5/11 substitute proposal is not online but was circulated by a MS Word draft named `Specter Substitute to S.2453_5.11.06.doc’ (`the 5/11 substitute’).”  For that reason, the provisions of the 5/11 substitute were obtained from 3 organizations that reviewed the memo, the American Bar Association (ABA), the ACLU and the Center for Democracy. Specter’s proposal has also been described by the Washington Post.

These are the key provisions to the 5/11 substitute which essentially abolish the FISA law while providing carte blanche to Bush in the future:

(1) Shifts burden to establish the legality of Bush’s surveillance programs from Bush to private citizens to retain important legal defense for Bush.

Specter had earlier discussed a provision to require that the Bush administration obtain a “mandatory review of the legality of its electronic surveillance activities” from the FISA court. Requiring Bush to prove that his NSA surveillance programs are legal would be an impossible task as the experts have already stated that the program is illegal, notwithstanding Bush’s claims of inherent presidential authority and his theory of the unitary executive.  Caving into conservative opposition to this requirement, the 5/11 substitute eliminates the mandatory review requirement and shifts the burden of review of the legality of Bush’s surveillance activities from Bush to individual plaintiffs who challenge NSA programs.  

The purpose of this change is to provide Bush with an “important legal defense by allowing the court … to review the program only by hearing a challenge from a plaintiff with legal standing.” Legal standing requires that the plaintiff prove that he or she has suffered damage. Bush benefits in two primary manners.  One, a lawsuit by an individual plaintiff would not proceed because the individual will not be able to prove damage because the facts of Bush’s NSA surveillance programs are secret. The Bush team has already used this defense in the AT&T case, “arguing that customers can’t prove their phones were tapped or that the company or the government broke the law — and that, in any event, the entire case endangers national security.” Two, individuals or groups — such as privacy rights groups or advocacy watchdogs —  that may not be directly impacted by surveillance often file lawsuits to declare rights on behalf of the public or to try to stop or change a law or program. These suits would also be barred for lack of standing. Therefore, it is quite likely that no one will be able to challenge the legality of Bush’s NSA surveillance programs.

(2)  Mandates a transfer of all such lawsuits questioning legality of surveillance programs to the FISA court of review.

If a plaintiff does establish standing, the Specter proposal vests exclusive jurisdiction over citizen lawsuits in the FISA court of review.  While ostensibly judicial review would be provided to cases Bush would otherwise have dismissed by invoking state secrets privilege, the reality is that the best case scenario is a secret proceeding outside the public forum, and even this may not be achievable.  

Transferring cases to the FISA court of review is just another way of conducting a massive dismissal as this new law dictates that “nothing in this Act shall be construed to limit the constitutional authority of the President.” This means that the FISA court of review judges will be directed to construe statutory provisions or interpret legal cases consistent with not limiting the President’s constitutional authority, which is undefined but most certainly expansive.  

To ensure correct interpretations, there is a fail-safe measure built into the FISA court of review system.  This forum shopping mandate will provide judicial review by 3 judges hand-picked by the Chief Justice of the US Supreme Court. In 2002, which was the last time that the FISA court of review heard a FISA case, Chief Justice Rehnquist selected 3 Reagan appointees, including a “former official who served in the Nixon and Ford administrations and fought against the creation of FISA along side the vice president.”

(3) Provides jurisdiction to FISA court of review to issue an order authorizing “program-wide” approval of electronic surveillance programs or the creation of a “general warrant.”

If a plaintiff is able to overcome procedural obstacles and establish standing in the FISA court of review, the court then has jurisdiction to issue an order authorizing “an electronic surveillance program.” The ABA characterized this “program-wide” approval as creating a “general warrant” for foreign intelligence purposes contrary to 4th Amendment particularity requirements that surveillance be reasonable, supported by court-issued warrants and based upon specific probable cause. It should be noted that general warrants have been prohibited by the Fourth Amendment in accordance with US Supreme Court decisions.

Program warrants authorizing a NSA surveillance program may be issued by the FISA court provided that “some of the communications intercepted involve agents of a foreign power.” Bush would not have to provide any evidence that an American is working with al-Qaeda as long as the program is “designed to sweep in communications of a foreign power, which basically would allow a dragnet over our communication system.” The program warrant would also be authorized if the court finds that the program is “reasonably designed” to “intercept the communications of suspected terrorists” or persons “reasonably believed [by whom it doesn’t say] to have communication with or be associated with” suspected terrorists.”

This means open surveillance season on all Americans:

“Thus, any legislator, journalist, attorney, scholar, doctor, or bus driver who has had any contact with someone the government suspects of international terrorism–even innocent contact based on exercising one’s freedoms as an American–could have every telephone call monitored for an unlimited period.  This provision, Section 704 of the bill, offends both the protections of the Fourth Amendment and the First Amendment.  This guilt-by- association standard, without any evidence whatsoever of wrongdoing, will easily entangle many innocent Americans and chill the exercise of their rights.”

If Bush should exercise his discretion to obtain an individual warrant (rather than using a program warrant or just ignoring warrants entirely), this bill would eliminate the probable cause requirement if “the administration claimed it could not identify all potential targets of a terrorism investigation, an exceedingly broad standard. Indeed, even though the bill does not repeal all of the rules in FISA for individualized court orders, it is difficult to imagine the administration ever seeking a warrant based on individualized evidence of wrongdoing by an American when it can simply get an order to allow a program of surveillance without showing probable cause an American is aiding the enemy.”

(4)  Creates exception for warrantless and secret physical searches of Americans’ homes and businesses during a time of war.

Presently, the FISA law permits the President to secretly search an American’s home as an exception to the court order requirement during a 15-day period after war is declared. Specter’s deletion of this provision means that “if America were to go to war against Iran or any other country, under these changes to FISA, President Bush would argue that he has been given power to secretly search the homes and businesses of any and all Americans under the guise of national security without any judicial check whatsoever.”

(5)  Subjugates FISA to “advisory” law that Bush may comply with or ignore in favor of exercising his presidential constitutional authority, thus essentially eliminating FISA.

Current FISA law expressly includes an exclusivity clause which states that “it a crime to conduct electronic surveillance under color of law except as authorized by FISA or the criminal code (Title 18).” Title VIII of the 5/11 substitute “repeals the exclusivity provisions of FISA” and provides that “nothing in this Act shall be construed to limit the constitutional authority of the President” to conduct foreign intelligence surveillance, thus “essentially giving the President the freedom to ignore the existing FISA structure.”

Repealing the FISA exclusivity clause and including the presidential constitutional authority clause means that Bush may, at his discretion, choose between complying with FISA or following Bush’s own method of gathering intelligence under constitutional authority of the President.  This is exactly how Bush is operating his existing illegal NSA surveillance programs by construing FISA as merely advise from Congress which the President may ignore. In addition, this means that Bush may conduct surveillance under standards and procedures that he creates rather than in compliance with FISA standards and procedures, and the public will remain in the dark as to the substance of the law governing surveillance.

Moreover, this provision would elevate Bush’s untested theory of unitary executive authority by codifying his theory in legislation. This was the hurdle that Bush faced when his illegal NSA spying was publicly disclosed because Bush could not cite a statute or constitutional provision which codified his theory. If this 5/11 substitute becomes law, then so will the unitary executive theory. And, that is what the White House wanted in any FISA legislation, that it should “further codify the President’s authority.”

Congress addressed this issue of inherent presidential authority in 1978 and rejected it, only to now have Specter insert such authority in this 5/11 substitute:

“The legislative history of FISA provides an important rebuttal to the claims of this White House regarding inherent authority to ignore federal law: `[E]ven if the president has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted.’  H.R. Rep. No. 95-1283, pt. 1, at 24 (1978).  By eliminating the exclusivity of these procedures, Congress will be destroying one of the pillars of FISA that has helped to protect civil liberties from unilateral spying by the executive branch.”

The impact is paving the road toward surveillance of Americans for political purposes:

“By adding back into the federal statute language embracing the idea of inherent presidential power to wiretap, this bill would resurrect the very provision in the criminal code that President Nixon relied upon in his warrantless wiretaps of countless Americans based on their political views.”

And, the very purpose in Congressional enactment of FISA would be eviscerated by this 5/11 substitute:

“Senator Specter’s bill would undo the Senate’s very intent in passing FISA, which `was designed   . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.'”

But, the impact will be even more devastating for Americans. Bush’s theory of inherent presidential authority includes the unitary executive theory which he cites in his signing statements as grounds for not complying with over 750 laws. And, these laws extend well beyond the issue of surveillance.

(6)  Provides blanket amnesty from criminal prosecution to participants of Bush’s surveillance programs.

The substitute legislation “exempts from offense warrantless electronic surveillance conducted outside the FISA process under Executive
constitutional authority.”
Prior to the 5/11 substitution, it was a criminal act to conduct warrantless surveillance without complying with the exclusive law on the subject, which was FISA.  The 5/11 substitution removes that exclusivity in both FISA and the criminal code and proclaims that such warrantless surveillance is permissible if Bush so provides by executive constitutional authority. This exemption, in conjunction with the exclusivity repeal, creates “a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s direction under a claim of inherent authority.” If there was any question about amnesty from prosecution, the 5/11 substitution further provides that the new FISA legislation is effective retroactive to 1978, or before Bush became President. This means that Bush personally, officials in his administration and executives at private corporations that participated in these NSA surveillance programs can not be criminally prosecuted under what may soon become the old FISA law that prescribed criminal liability for warrantless surveillance.

(7)  Express retroactive ratification of Bush’s illegal NSA spying programs.

The big whopper in the 5/11 substitute is “making these provisions retroactive to the enactment of FISA” in 1978. As the ABA noted, this provision constitutes express retroactive ratification of Bush’s prior illegal NSA spying activities. This substitute provision validates Bush’s warrantless NSA programs, both those known and those not yet publicly disclosed, by retroactively validating back to the date FISA was enacted, which was prior to when Bush assumed office. If this 5/11 substitute becomes law, and someone manages to reach a court for review, legality will be determined by this new law, not the provisions which existed at the time the acts were committed.  And, this new law codifies the major components (at least those publicly disclosed) of Bush’s NSA surveillance programs.  This virtually ensures that Bush will be immune from impeachment based upon these programs. While  impeachment is a political process after it has been commenced in the House, the event which triggered commencement of the impeachment process in all 3 cases — Nixon, Clinton and Johnson — was the president’s violation of a law. Thanks to Specter, the law will now deem Bush’s prior illegal acts as legal.

Will this legislation pass?

“Republicans say that under the new compromise all Republicans on the Judiciary Committee are expected to support the Specter bill. Support for that legislation is seen as smoothing the way for the DeWine bill. Several Judiciary Committee Republicans have demanded that either both bills pass out of committee or nothing NSA-related does.”

Please stay tuned for Part II, which addresses the legality of this amnesty program for government and corporate executives.

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