Stop The Bush Administration's Power Grab - San Francisco Chronicle

As the only two Democrats who serve on both the Senate Judiciary and Intelligence committees, we are deeply concerned that the Bush administration continues to violate the Foreign Intelligence Surveillance Act (FISA) by wiretapping the phone calls of Americans without a warrant. The biggest mistake Congress could make in response to one of the biggest presidential power grabs in modern American history would be to cede the president the authority he is asserting and make his illegal wiretapping program legal, without any justification from the administration as to why it can't follow the law. But Senate Judiciary Committee Chairman Arlen Specter's bill would grant the president that authority and more, in a dramatic expansion of government power over its citizens.

The bill promoted by Sen. Specter, R-Pa., is flawed not only because it lets the government wiretap calls of Americans without a warrant, but also because it effectively predetermines the outcome of any legal challenge to that wiretapping program. Specter has argued that no statute can limit the reach of the president's constitutional powers. The U.S. Supreme Court, however, takes a different approach in evaluating assertions of executive power. As both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito explained at some length in their nomination hearings, the court uses a three-tiered test to evaluate presidential power. The president's power is strongest when Congress has authorized the particular activity at issue. If Congress has not addressed the issue, then we are in a middle tier, called a "zone of twilight." But the president's power is at its lowest ebb when Congress has explicitly prohibited the activity at issue.

Such a clear prohibition makes a big difference to the constitutional analysis; indeed, a group of law professors has pointed out that "[e]very time the Supreme Court has confronted a statute limiting the commander-in-chief's authority, it has upheld the statute."

Congress explicitly banned wiretapping individuals in the United States without a court order, except in limited circumstances such as emergencies, when it passed FISA in 1978. That means the president's power to wiretap Americans without a warrant would be viewed very skeptically by the Supreme Court. If Congress were to pass Specter's bill, however, the legal analysis would be much more deferential to the president. By repealing the ban on wiretapping without a warrant, explicitly stating that Congress is not limiting the president's authority to engage in such activities, and even eliminating a provision in FISA that permits warrantless surveillance after a declaration of war for only 15 days, Congress would help the president make his case. Specter's bill does not merely bring the issue to the courts, it virtually instructs the courts how to rule. That is why the much-touted "compromise" with the president is no compromise at all.

In its decision in the Hamdan case more than a month ago, the Supreme Court ruled that the administration must follow the law that Congress has passed. The court did not accept the Bush administration's extreme theories of executive power in the Hamdan case, and there is no reason to think that it would accept those same theories when they are used to try to justify the illegal wiretapping program -- unless, of course, Congress changes the law to encourage the courts to defer to the executive branch.

We are prepared to support reasonable modifications to FISA if the administration makes the case that such changes are needed. For example, the current and former directors of the National Security Agency recently testified that FISA may technically apply to calls that both originate and are received overseas if they pass through the United States. We agree that should be fixed. But in enacting FISA, Congress made it clear that the executive branch can't simply wiretap anyone it feels like based on some theory of unlimited executive power. Specter's bill weakens FISA's protections of the privacy of the American people. We shouldn't make a bad situation worse, and further weaken a system of checks and balances that has already been seriously undermined. Congress should stop the Bush administration's power grab.

Democrat Russ Feingold is the U.S. senator from Wisconsin. Democrat Dianne Feinstein is the U.S. senator from California.