Written by Ohio's Mike DeWine, the legislation tries, in effect, to put a fence around a wild horse. It would allow warrantless wiretaps and other electronic surveillance of people linked to groups plotting terrorist acts against the United States, while making a start at restoring legislative control over a White House that claims to be above the law in times of war. And since this is simply an agreement among Senate Republicans—the bill has an uncertain future, at best—there is no guarantee that other actors in Congress won't make the fence higher, or for that matter, lower.
The bill requires any surveillance of a suspected threat to be reviewed by either Congress or the secretive Foreign Intelligence Surveillance Act (FISA) court within 45 days. It requires the President to submit operational details of the program and specific surveillance whenever requested by a new Congressional subcommittee, which can require answers to detailed questions. It forces the Attorney General to certify in writing and under oath every 45 days that the program accords with the restrictions laid out in the new law. It also notably removes all authorization for the program after five years.
Still, many critics of the Bush Administration and Congress argue that the entire FISA needs to be rewritten to handle threats posed by the kind of low-lying, educated actors who perpetrated 9/11, rather than trying to tack provisions onto the existing law to account for the new danger. That is also the position of New Mexico congresswoman Heather Wilson, the chairman of the House subcommittee that oversees the eavesdropping at the National Security Agency. Wilson has been engaged in lengthy negotiations with the White House and other members of Congress over access to details of the program in advance of what she says will be her own attempt at a bill.
The current legislation simply piggybacks on the 1978 FISA law, which was designed to put restrictions on electronic spying against foreign powers rather than solo, stateless actors. So there is no change to the requirement, viewed as outdated by many national security experts, that one party to the tapped call be outside the United States. Which means that for Americas most powerful intelligence tools to be used against its most dangerous threats, any plot has to be discovered while it is still being hatched overseas. If plotters get inside the country as they did before 9/11, the powerful eavesdropping abilities of the National Security Agency cannot be brought to bear. In effect, the new bill manages to anger civil libertarians without fully addressing the security problem.
Similarly, the bill papers over the central power struggle under way between Congress and the White House. President Bush's advisors have repeatedly argued that when Congress authorizes the use of military force, the President is above the law when acting as Commander in Chief. Other than the Constitution, they argue, the Commander in Chief in wartime does not need to abide by laws that have been passed by Congress, period. This position scares even some on the right wing of the Republican party, but it is a bigger fight than any one Senator can tackle. Says Mike Dawson, an aide to the bill's author, DeWine, "We're trying to prevent terrorist acts by people that would be covered by this bill."
The irony, of course, is that until those larger issues are resolved, incremental bills like DeWine's will accomplish even less they intend to, since the White House will view them, for all intents and purposes, as optional.