High on Congress' agenda this week is legislation to authorize the National Security Agency's (NSA) Terrorist Surveillance Program (TSP). In the Senate, Judiciary Committee Chair Arlen Specter (R-PA) brokered a hollow compromise with moderate Republicans on the National Security Surveillance Act (S. 2453), increasing the likelihood of its passage. In the House, Rep. Heather Wilson's (R-NM) Electronic Surveillance Modernization Act (H.R. 5825) passed out of committee and is likely to see a floor vote this week. Both bills would legalize the warrantless surveillance program and provide exceptions to the judicial approval required by the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA).

The Hollow Compromise

Sens. Larry Craig (R-ID), John Sununu (R-NH) and Lisa Murkowski (R-AK), previously opposed to the Specter bill, recently announced three changes to S. 2453 that compelled their support.

First, the Specter bill allows for an entire surveillance program to receive a blanket order for surveillance. The compromise revises program-wide orders to incorporate a requirement for individual approvals. This means that after the Foreign Intelligence Surveillance Court (FISC) issues a program warrant for an entire surveillance program, additional approval would be needed from FISC after a "person of interest" has been identified to ensure that the surveillance is in conformity with the Fourth Amendment.

Second, Specter's bill allows for warrantless surveillance of "agents of a foreign power" for one year if the target of the surveillance is not a U.S. person (i.e. a U.S. citizen or legal permanent resident). The compromise revises the language to state that warrantless surveillance of an agent of a foreign power must not include communications of American citizens.

Third, language has been removed from Specter's bill that stated that the president has the power to wiretap at his own discretion under the constitutional power of the executive branch. According to the Washington Post, the White House is pleased with the three modifications.

While addressing some of the criticisms raised about Specter's bill, the revisions fail to ensure that TSP and other surveillance programs operate within the confines of the Fourth Amendment. The biggest loophole that the compromise fails to close is the redefining of electronic surveillance to permit what ordinary Americans would consider to surveillance.

Specter and Wilson Bills Redefine Electronic Surveillance

The Specter and Wilson bills offer the guise of increased oversight of domestic and international surveillance but, in fact, drastically reduce such oversight by restricting the protections embodied in the Fourth Amendment. The bills provide mechanisms for the FISA Court to review TSP, but at the same time, permit the program's continuation without judicial approval.

Though the language of the Specter and Wilson bills differ in some respects, they contain identical language on the most troubling provision of both bills. The House and Senate bills would restrict the definition of electronic surveillance to exclude TSP, thereby opening the door for untargeted warrantless domestic surveillance. According to the Specter and Wilson language, FISC would oversee surveillance programs that target people inside the U.S. who have a reasonable expectation of privacy. However, TSP targets people overseas, even though the communications of many innocent Americans may be collected in the process. Hence, FISA would not govern TSP, and the president would not have to receive judicial approval to wiretap these communications.

Moreover, the limited definition of electronic surveillance would allow programs to go far beyond TSP. First, the definition permits warrantless collection of communications between U.S. citizens and people overseas who have no connections with terrorism. Second, it would, presumably, authorize any untargeted warrantless program collecting a vast array of the domestic communications of innocent U.S. citizens.

House and Senate Versions Move

The Specter and Wilson bills recently passed out of committees on partisan votes and are expected to be voted on by the entire Senate and House, respectively, this week. It is yet unclear which vehicle will be used to present the Specter language. There are currently three possibilities. First, there is Specter's S. 2453. Second, Senate majority leader Bill Frist (R-TN) recently introduced the Specter language as the Terrorist Surveillance Act (S. 2931). Finally, Frist combined the Specter bill with revised military commission legislation and introduced it as the Terrorist Tracking, Identification and Prosecution Act of 2006 (S. 3929). Also uncertain is what will happen if the Senate passes the Specter bill and the House passes the Wilson bill, since there is limited time for negotiations between the two chambers.

If Senate Democrats are still opposed to the compromise language, they could attempt to block the Specter bill. On a conference call before the compromise was announced, Sen. Harry Reid (D-NV) told bloggers that the Specter bill was not going anywhere, hinting that a filibuster may be used. In a surprising turn sure to add another fold in the NSA surveillance saga, the Specter-Feinstein legislation (S. 3001) passed out of committee on a bipartisan vote Sept. 13 and would contradict Specter's other bill, the National Security Surveillance Act, by reasserting that FISA and the Fourth Amendment and the issuance of individualized court orders are the exclusive means for electronic surveillance of U.S. persons.