“President Bush’s electronic surveillance program has been a festering sore on our body politic since it was publicly disclosed last December,” wrote Sen. Arlen Specter (R-Pa.). His solution? Sweep the whole mess under the rug of the Foreign Intelligence Surveillance Court and out of the public eye.

The Senate Judiciary Committee is considering a bill which would allow — not require — the President to submit the terrorist surveillance program, or future programs, for review by the Court and explicitly make parts of the program legal.

The bill would also allow the National Security Agency to conduct surveillance, without a warrant, of communications between two countries which pass through the U.S., such as a telephone call between Pakistan and Canada, from within the U.S. Currently such communications must be intercepted from outside the U.S.

[NSA director Lt. Gen. Keith] Alexander testified that because no U.S. court order is needed to acquire communications of foreign intelligence targets overseas, even when they call to the United States, “it ought not to matter whether we do so from the United States or elsewhere.” — Washington Post

But it goes much farther: It would force all existing lawsuits related to the programs out of the open courts and into the secret courts. Specter, however, said that the bill would not provide as much judicial oversight as he would like.

“If any legislative action is required,” wrote Electronic Frontier Foundation activist Derek Slater, “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.”

“I could not in good conscience acquiesce in such a sweeping signing away of Americans’ liberties,” said Vermont Sen. Patrick J. Leahy, the committee’s senior Democrat. He said the bill would permit “vast new amounts of warrantless surveillance” by eliminating a requirement that all such surveillance be carried out under a warrant from the secret court. — Baltimore Sun

I don’t have a problem, in general, with NSA capturing foreign communications that pass through the U.S. on their way to some other country. I do have a problem with any attempt to eliminate the Fourth Amendment through back door measures. Never mind that it’s been done many times before, and little remains of the Fourth Amendment — or the rest of the Constitution — these days. I also have a big problem with any attempt to shut down an apparently valid court case through the government’s abuse of the so-called state secrets privilege. The open courts already know how to handle secrets and there’s no reason to think they can’t continue to do so.