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Lawmakers Take Up NSA's Once-Secret Surveillance Program

A bill sponsored by Senate Judiciary Committee Chairman Arlen Specter (R-Penn), would give the closed Foreign Intelligence Surveillance Court authority to approve government requests for warrantless electronic surveillance. A number of groups opposed to the practice are also opposed to the bill for two primary reasons: it does not require the government to go through the secret court, but it could force lawsuits related to the practice before the court and out of the public realm.

A bill touted as a compromise between supporters and opponents of the National Security Agency's once-secret surveillance program is drawing fire from groups suing over the program.

Senate Judiciary Committee Chairman Arlen Specter is sponsoring a bill that he claims represents a compromise with the White House. Specter, a Pennsylvania Republican, claims the bill would allow the closed Foreign Intelligence Surveillance Court (FISC) to decide whether the President can legally authorize electronic surveillance without first obtaining warrants. It goes before the committee Wednesday.

"The negotiations with administration officials and the president himself were fierce," Specter wrote in a column published in The Washington Post this week. "The president, however, did personally commit to submitting this program for court review should the bill pass. Even without a legal mandate, his sending this program to the FISC would be a powerful precedent to be considered by future presidents."

While Specter touts the closed court as a fair venue for determining whether presidents should be able to authorize the NSA surveillance during times of war, groups that are suing over previous and current surveillance claim the bill undermines their cases.

About 37 cases are winding their way through the court system in several states. Plaintiffs are suing communications companies for cooperating with the government programs. The government and the companies claim they have done nothing illegal, but groups on the left side of the political spectrum and Civil Libertarians disagree.

In addition to determining the extend of executive power for years to come, the rulings in those cases are likely to determine the circumstances under which communications companies can and cannot share customer information with the government.

The Electronic Frontier Foundation is leading a lawsuit that targets AT&T for allegedly assisting federal authorities with data mining and eavesdropping. The Center for Constitutional Rights filed a similar suit. Both groups are blasting Specter for labeling his bill a compromise.

"Although the bill creates a process for the executive branch to seek court review of its secret surveillance programs, it doesn't actually require the government to do so," EFF said in a recent statement. "The bill would, however, require that any lawsuit challenging the legality of any classified surveillance program -- including EFF's class-action suit against AT&T -- be transferred, at the government's request, to the FISA Court of Review, a secret court with no procedures for hearing argument from anyone but the government."

EFF said the bill would also allow the federal government to block any information about the surveillance programs from getting to the plaintiff's lawyers.

"When the privacy of millions of Americans is at stake, we deserve more than a closed hearing by a secret court," EFF Senior Staff Attorney Lee Tien, said in a written statement.

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