Today's Washington Post reports that a new bill by Senator Arlen Specter will bring Bush's controversial NSA wiretap program under the authority of the FISA court.

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago.

Specter's plan could put him at odds with the administration, which has praised a rival proposal that would exempt the NSA program from the surveillance law. Specter's proposal would also require the administration to give a handful of lawmakers more information about the program than they now receive, such as the number of communications intercepted and a summary of the results.

I have thought that this sort of proposal - bringing the NSA wiretap program under the authority of FISA - sounded a little strange. After all, isn't the point of the controversy that the NSA wiretaps in question should already be under the authority of FISA and that, by telling the NSA to forgo FISA authorization, President Bush acted illegally? So, why do we need a new bill to codify something that is already law?

Law professor Marty Lederman writes at Balkanization that Sen. Specter's bill may actually be an effort to ex post facto legalize Bush's illegal wiretap program.

As I read the draft bill, however, [the idea that the bill would require that the NSA program be conducted only within the FISA framework] is wrong. It's not simply a a reenactment of the "FISA framework" -- instead, it's a wholescale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.

Lederman offers a word of caution, saying that he's only had a chance to conduct a cursory reading of the draft legislation, but his initial analysis underscores the importance of maintaining a strong public debate of this issue. The Washington Post article quotes Center for National Security Studies director Kate Martin as saying

"It's not limited to al-Qaeda or even terrorism," she said. Those who communicate with "foreign powers" could include a vast array of innocent people, Martin said.

Though the WaPo cites Martin, the subtitle to the WaPo article - "Measure Would Make Administration Seek FISA Court's Permission to Eavesdrop" - could easily mislead readers into believing that Senator Specter is proposing legislation that would reign in Bush's domestic spying program, rather than what it may really do, which is provide a legal framework for expanding it.

Update: Glenn Greenwald has an interesting take on Specter's proposed bill.

Specter's new law would be treated by the Administration as being just as irrelevant and optional as it has treated FISA. Enacting a new law which the Administration is claiming it has the right to ignore is an exercise in futility and idiocy. The Administration has seized the power to break the law. Until that problem is resolved, Specter and his distinguished colleagues and friends in the Senate can pass all of the laws they want, but those laws will continue to be viewed by the Administration as optional suggestions which can be followed if the Administration wants to, rather than actual laws that compel adherence.