When Terrorists Talk

John Schmidt:

"In a Sept. 13 vote along party lines, the Senate Judiciary Committee moved Chairman Arlen Specter’s wiretap bill to the Senate floor. The bill would provide for a court review of the National Security Agency’s terrorist surveillance program. Yet many critics are still fighting the legislation.

They are vigorously protesting the bill’s elimination of the “exclusivity” provisions of the Foreign Intelligence Surveillance Act of 1978, which make it a crime for the president (or anyone acting under his direction) to carry out electronic surveillance on a foreign terrorist group or other foreign power in this country except in accordance with FISA’s statutory procedures. They claim the bill introduced by Sen. Specter (R-Pa.) is an “abandonment” of the principle that even presidents are subject to the rule of law.

In fact, the history of FISA’s exclusivity provisions demonstrates that they were a mistake from the beginning. Far from protecting the rule of law, they ignore the law of the Constitution. Eliminating them now would help end confusion about the president’s authority in this critical area of national security. "