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Specter introduces new compromise bill on NSA surveillance

[JURIST] US Senate Judiciary Committee Chairman Arlen Specter (R-PA) introduced a new NSA oversight bill to the committee Thursday modifying his earlier proposal [JURIST report] to require the NSA to seek FISC approval before conducting surveillance. The new proposal, a compromise plan written with Sen. Jon Kyl (R-AZ), has three major features:

  • in a major concession to the Bush administration, the bill cannot "be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States;"

  • no official acting under presidential authority can be held criminally liable for conducting warrantless surveillance if the NSA warrantless surveillance program [JURIST news archive] is eventually found unconstitutional;

  • finally, the bill would consolidate the 29 cases before federal courts challenging the constitutionality of the NSA program, including the ACLU lawsuit against the big three phone companies [JURIST report], and would provide exclusive jurisdiction over the consolidated case to the Foreign Intelligence Surveillance Court [FJC backgrounder]. Any FISC decision would be subject to Supreme Court review and would bind future federal court decisions.
Now that Specter's proposal gives the Bush Administration some flexibility in deciding when to seek FISC approval of warrantless wiretaps, and creates a reasonable person standard for authorizing warrantless wiretapping of any person "reasonably believed" to be associated with terrorism, Specter hopes the administration will work towards passing a warrantless surveillance bill. Vice President Dick Cheney has previously suggested that the NSA surveillance program requires no additional legal framework to be constitutional [JURIST report], a claim disputed by Specter. Specter's new proposal comes one day after Specter sent a letter [PDF text; JURIST report] to Cheney accusing him of interfering with his plan to subpoena telephone companies regarding the NSA program. The Washington Post has more.

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