July 27, 2006 | By Derek Slater

Judicial Review We Should Live With

While Sen. Arlen Specter continued to defend his dangerous surveillance bill, he also declared his willingness to consider alternatives in a hearing yesterday as well as in recent press reports. That's welcome news. From the moment the NSA's massive and illegal spying program was first disclosed, Specter has tirelessly called for meaningful limits and judicial review. To fulfill those laudable intentions, we hope Specter will consider amending the bill so that it reaffirms statutory limitations on surveillance and allows legal challenges like ours to proceed in the traditional court system.

In a Washington Post op-ed published Sunday, Specter asserted that "President Bush's electronic surveillance program has been a festering sore on our body politic" and "If someone has a better idea for legislation that would resolve the program's legality ... I will be glad to listen." Specter conceded in a recent Baltimore Sun article, as he did yesterday, that his bill "would not provide as much judicial oversight as either he or his critics would like."

In that article and at the hearing, Specter specifically pointed out the court's decision in our case last week denying the government's and AT&T's motions to dismiss. He hoped that our case and others related to illegal spying would be allowed to proceed.

We agree, and, for that reason, ask Congress to allow the courts to continue to assess the legality of the warrantless wiretapping program through litigation like ours. With Judge Walker and others continuing to address pending motions, Congress can simply hold off on Specter's or any other FISA bill until the courts have an opportunity to issue decisions. After reviewing the courts' decisions, Congress is in a better position to assess what, if any, legislative action need be taken.

If any legislative action is required, we humbly suggest that Congress clarify that all cases dealing with purportedly secret surveillance can be litigated in the regular district courts pursuant to established security procedures for handling sensitive evidence, as in our case against AT&T. If the administration has a legitimate concern about divulging highly classified evidence, Congress could enhance existing measures to balance the importance of security with the need for allowing a court to test the government's extreme theories of executive power. Congress should also explicitly clarify that these procedures preempt the government's often misused state secrets privilege and reaffirm FISA as the exclusive means of electronic surveillance.

We commend Specter for his willingness to consider alternatives, and we hope he reconsiders the bill as drafted. For now, it's still critical that you take action to stop the surveillance bills.

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