Spineless
Last week, republicans called for a bill to amend FISA, and demanded that the bill be enacted into law before Congress took its summer recess. Republicans claimed that the move was "necessitated" by a still secret FISA court ruling that declared George Bush's electronic surveillance program unconstitutional.
Think about that for a moment: A judge declares the undisclosed practice unconstitutional so instead of abandoning the practice, the response is to change the law to 'authorize' the practice deemed unconstitutional?
Saying that 'it makes no sense to require the government to get a court order' when collecting intelligence on foreigners, even if the process involves circumstances where one party to the communication is a US resident, the administration suggested that the attorney general of the United States should be vested with this determination.
Think about that for a moment: the attorney general of the United States, meaning Alberto Gonzales. Under the proposal, the man who has shown absolutely no oversight of his own office and who has rubber stamped anything and everything the administration has done, is now supposed to provide 'oversight' on whether or not there is a legal basis for conducting surveillance under the act? The man who has expanded the powers of the executive branch at the expense of the individual is being asked to oversee the executive branch's use of power over the individual?
Surely a democratic party would be concerned about checking the claimed power of the executive, and most certainly this executive with this attorney general, right? Surely a democratic party would be concerned about the individual liberties of the citizens of the United States and block passage of this requested bill right?
Democrats should be ashamed of their party today. Not only did they remove the courts from conducting any meaningful oversight into these programs, but they strengthened the power of the executive branch in the process. If they do not see the dangers of expanding the powers of this executive, then they do not see the checks and balances the framers of our constitution carefully considered.
Montesquieu posited that when democracies break down, they lead to authoritarian governments. Democrats in Congress, on this issue and others, are proving him right.
Technorati Tags: 
.
.
changes to FISA
For a summary of how the House of Representatives voted on Changes to the Foreign Intelligence Surveillance Act (FISA) of 1978, please visit: House version of FISA bill
For a summary of how Senators voted on Changes to the Foreign Intelligence Surveillance Act (FISA) of 1978, please visit: Senate version of FISA bill
For more information on Changes to the Foreign Intelligence Surveillance Act of 1978 please visit Project Vote Smart or call our hotline at 1-888-VOTE-SMART.
A nitpick and a comment on a proposed fix
First, you're absolutely right on the merits; it was a terrible, terrible bill that effectively guts FISA as far as I can tell. Awful. Bush may not be listening on my grandmother, but I wouldn't be surprised to hear that he's listening in on DNC communications or something similar.
That said, the FIS court likely didn't find the program unconstitutional, but illegal. Bush's program violates the law (and is a felony, it bears noting), but probably doesn't violate the Constitution.
Lastly: Conyers proposed a bill in the last few days for when the law sunsets in 6 months. It takes the Bush administration at face value (which is more deference than what they're entitled to), and takes an audit based approach. The gist is that the Prez can spy on Americans w/o a warrant, but the Inspector General will go back and audit the intercepts every few months.
Not a bad start, IMHO.
Actually...
Bush (or, rather, antiterrorist officials) would only be listening to DNC communications if they were talking to foreign nationals overseas who were known or suspected anti-American terrorists.
Which, for some Democrats, isn't that far-fetched, come to think of it...
Why do you have to make such
Why do you have to make such a comment? Comments like your last line are so counter-productive and very much counter to the spirit of this blog.
That last line...
...was meant to be a lighthearted jab. Apologies to anyone it offended.
Anyone, For Any Reason
Michael,
I am not sure where you get the idea that the government is only listening to 'known or suspected anti-American terrorists.' The act categorically excludes from FISA any and all "surveillance directed at a person reasonably believed to be located outside of the United States." There are no modifiers to that provision; no requirement that the surveillance be in some way connected to a known terrorist, suspected terrorist, or even connected with any suspected wrongdoing. Alberto Gonzales' approval is not even required either. Simply put, my telephone call to my brother traveling in Spain, my grandmother visiting in Norway, or my telephone call to the local embassy (embassies are considered foreign territory) all fall within the exception for "surveillance directed at a person reasonably believed to be located outside of the United States." Under this act, the government can listen to these calls without warrant, for any reason it wants. It is not related to terrorism, or some other targeted issue, but all calls in a 'catchall' net.
So yes, if Hilary Clinton calls France's Prime Minister François Fillon, you bet they are listening, and they don't need FISA approval or Alberto Gonzales' rubber stamp for authority to do so.
I see your "actually," and raise you a "no, really"
Reread the legislation. The target just has to be "outside the United States."
ie, anytime Republicans are on a junket to St. Andrews golf course, President Clinton can wiretap them.
AP
I'll admit I got a little lost in the legalese of the bill itself, but apparently the (virulently anti-Bush) Associated Press is under the same impression I am:
Bush: Congress should modernize law on monitoring of suspected terrorists
Written by Deb Riechmann, AP
Saturday, 28 July 2007
WASHINGTON - President Bush today pushed Congress to modernize a law that governs how the U.S. intelligence community monitors the communications of suspected terrorists.
"This law is badly out of date," Bush said in his weekly radio address.
The Foreign Intelligence Surveillance Act - also known as FISA - provides a legal foundation that allows the U.S. intelligence community to collect information about terrorists' communications without violating the civil liberties of Americans.
Spin is Irrelevant.
How the press spins it, or describes it, or what GWB said about the old act, is irrelevant. What is written in the bill passed, and how it is used by whoever is in office, is relevant.
These are not targeted searches of known suspects, these (by all accounts) are data mining programs that look at anyone and everyone's communications. And if there is a reader of this website, sitting in the UK, I bet that would be justification for reviewing the words that I am writing now, especially when the 'hot words' like terrorist, Iraq, or who knows what else are used.
Not to belabor the point...
...but are you saying that you understand the fundamental tenet of the bill much better than the president, the AP legal correspondent, and every analyst I've heard discussing this issue?
I know how to read
Journalists are generally pretty bad when it comes to legal interpretation - they just listen to and reiterate the positions of the interested parties (snarky comments on IQ aside, Bush has a vested interest in increasing his power, so he'll say what he has to say) That said, the AP article was prior to the law's passage, and just talked about what the parties wanted.
I don't know analysts you're listening to, but I suggest you find other ones. Read the law yourself; it's pretty clear.
...and a more recent AP (from Aug 3)
WASHINGTON (AP) -- The Senate, in a high-stakes showdown over national security, voted late Friday to temporarily give President Bush expanded authority to eavesdrop on suspected foreign terrorists without court warrants.
It doesn't say that the spying is limited to terrorists
[insert light-hearted jab about conservatives and reading comprehension]
The Fix
About that fix,
Marty Lederman weighed in with a few comments on the sunset provision today, and they are worth reading. Add to those the comment from Matt Yglesias, who probably says it best:
Correction on 'illegal' is appropriate. However, since the FIS decision remains secret, we do not know whether the Court held the practice illegal as beyond the scope of some purported authorization, or illegal under the fourth amendment. I recognize that it may be the former, but it could still be the later. Either way, 'illegal' is a more accurate description.
Relevant action
Actually, if the judge found the program to be unconstitutional, changing the law would be irrelevant, right? So can't we assume the judge only found the program to be forbidden by the act?
And assuming the judge found the program to be forbidden by the act, isn't trying to change the act the exactly appropriate thing to do, if the President thinks the program is important to preventing terrorist action?
Unconstitutional
It is fair to assume that the judge found some portion of the program to violate law, a law other than the fourth amendment's prohibition on unreasonable searches and seizures. However, that would not make changing the law irrelevant. The difference centers upon whether you adopt a positive law or natural law perspective. By way of example, if the judge found some portion of the program to be an unreasonable search prohibited by the fourth amendment (which generally requires individualized suspicion, giving rise to probable cause and court approval for the action), FISA could be amended to say that the practice is reasonable, given the changes in society and the needs of the executive branch to perform this activity, exactly what Bush has argued. A positive law perspective would focus on the form over substance, does the act authorize, is it rationally related, and since the executive branch says its reasonable, a positive law court would probably say that since there is authority for the practice, it is rationally related to a valid objective, we are not going to second guess. A natural law perspective might focus on the reasons behind the fourth amendment, independently evaluating whether the search is reasonable, regardless of what the executive branch and legislative branches say. As a professor of mine used to say, the courts are the counter-majoritarian influence, designed to ensure the rights of the individuals in circumstances like these. That is balance of power. (Unless you get a judge with a positive law perspective who effectively looks for reasons to uphold the claims of the other branches of government, and not protect the rights of the individuals.) So changing the law even if the practice is unconstitutional is not necessarily futile or irrelevant- it still depends on judges, to some extent.
A great many misdeeds have been performed, both intentionally and by men with good intentions, because an elected official says 'trust me, this is what we need to do.' You look at this one example, and ask about this one event. I see a whole series of events where the executive branch has expanded its power and rendered the power of its co-equal branches meaningless. And in this case, the power of the executive branch is expanded further in a way that excludes from court oversight the threshold searches that this administration is performing (and the next one will be as well), and takes the authority for granting the searches from the independent judiciary and places it beneath the executive branch. To say 'isn't trying to change the act the appropriate thing to do' misses the forest for the trees.
Post new comment