For the last several months, Senator Arlen Specter has pushed for legislation that could threaten vigorous judicial oversight of the NSA spying program by sweeping cases into the shadowy FISA court system. We have urged Specter to let cases proceed through the traditional court system, and, after several judicial decisions including Judge Walker's in our case against AT&T, it seems Specter might be changing his tune:
"We now are at a state where the provisions of earlier legislation which I introduced, which would call for judicial review by the Foreign Intelligence Surveillance Court, are no longer necessary. Events have overtaken the situation, with litigation having been started in a number of district courts, and a decision has come out of the U.S. district court in Detroit. The issue is now on appeal to the Sixth Circuit, and there is no longer any need to provide for a referral to the Foreign Intelligence Surveillance Court because the matter is now in litigation and will be carried through on the appellate process."
The rest of Congress should heed this sentiment -- after courts have had a chance to weigh in, Congress will be in a better position to assess what, if any, legislative action is needed to ensure appropriate judicial review.
At the same time, the lame duck Congress shouldn't consider Specter's new bill, which he introduced yesterday. Although not nearly as bad as his previous proposal, this latest bill would still unjustifiably expand the government's power to wiretap without a warrant in the US. Newly-elected representatives should be allowed to take office before Congress considers any legislation related to the NSA spying program, especially since the president has kept the current representatives in the dark and refused to disclose crucial aspects of the program.