Legislation introduced by Sen. Arlen Specter's (R-PA) that would retroactively legalize the president's NSA wiretapping program will be the focus of a Senate Judiciary Committee hearing scheduled for July 26. The National Security Surveillance Act (S. 2543) would also create a legal framework for future surveillance of American citizens.

With the recent announcement that Specter and the White House had reached an agreement on the bill, pundits have charged that the legislation is little more than a thinly veiled acquiescence to the president's claims of authority to conduct such a program without oversight. Specter spoke out in a July 27 opinion piece in the Washington Post, seeking to justify his position on presidential authority and oversight. He begins by declaring:

President Bush's electronic surveillance program has been a festering sore on our body politic since it was publicly disclosed last December. Civil libertarians, myself included, have insisted that the program must be subject to judicial review to ensure compliance with the Fourth Amendment.

In the same piece, however, Specter reverses course, stating that the president's position--that his program is justified by his Article II powers granted by the U.S. Constitution--may be legally defensible. Specter touts his bill as a solution to the legality problem that would "permit a determination of the program's legality" by submitting the program to the Foreign Intelligence Surveillance Court for review and approval.

OMB Watch, as pointed out previously in The Watcher, finds the Specter bill to be a disastrous solution to a dangerous problem. According to Specter, "the bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist."

By retroactively acknowledging that the president has "the constitutional authority of the executive," however, the bill allows the federal government to wiretap anyone's phone calls or read anyone's emails without judicial approval or oversight. No longer would the government have to obtain a court's approval to eavesdrop on communications.

Moreover, the bill destroys any attempt to challenge surveillance through the federal court system. Not only would the bill retroactively justify the legality of Bush's wiretapping program,, it would immediately shift all pending legal challenges (approximately 20 or so currently winding their way through the system) to the jurisdiction of the Foreign Intelligence Surveillance Act (FISA) court. This would place the cases before a court that is highly deferential to the president's authority, rejecting only 4 of the 20,810 requests for surveillance since its inception in 1979.