FISA Update

So we're beginning to learn the full story behind the shameful Democratic cave on the FISA bill. Apparently a new judge was rotated into the FISA court, and he or she objected to the wiretapping of calls that are international but go through a US switcher. Everyone's hair burst into flames at the White House, and they initially wanted to dissolve the court altogether. And essentially, that's what they did, giving oversight of the wiretapping program to the people who conduct it, letting the hens run their own henhouse, really. As Anonymous Liberal points out, the final bill is an abomination.

The bill has two basic components. First, it creates a carve-out that exempts nearly all international communications (even when one party is in the U.S.) from FISA’s regular provisions (which require individualized warrants, minimization, judicial review, etc.). The second half of the bill then grants the Attorney General and the Director of National Intelligence the power to authorize warrantless surveillance of the category of communications carved out by the first half of the bill [...]

Most of the debate in Congress and coverage of the bill in the media has focused on whether these procedures and oversight requirements are sufficiently rigorous to protect Americans’ civil liberties. They’re not. But that’s more or less beside the point because–and this is what I think many people do not yet appreciate–given the way FISA is structured, the President is under no obligation to follow even these watered-down oversight requirements. They are merely optional.

This is because the bill changed the definition of "electronic surveillance" to something so narrow that all other intelligence-gathering activities exist outside of it, and therefore outside the scrutiny of the FISA court.

It is imperative that members of Congress and the media be made aware of the full scope of this bill. It is not as advertised. By carving out a large category of surveillance activities from the definition of “electronic surveillance,” the bill effectively exempts such surveillance from FISA altogether. And while the bill purports to establish conditions and procedures for conducting warrantless surveillance, these requirements are effectively optional and, in any case, there is no penalty in the statute for disobeying them. Those lawmakers who voted for this bill need to be confronted with these facts and shamed into doing something to correct the situation.

I know lawmakers don't read the bills, but seriously, how could they have allowed this and gotten rolled so easily? The fact remains that any contact with a "foreign intelligence" target, in other words anyone foreign, is now legally susceptible to spying. Which means American citizens will be caught up in that net. And this doesn't seem to bother anyone because it's "only temporary." Yeah, I'd like to see the strategy for that fight in 180 days. I'm sure it'll be just as sterling.

The Bush Administration sought an amendment of FISA to overcome roadblocks that the FISA court threw in its way. It put its case to Congress in secret and sent its national intelligence czar to negotiate a deal. When he concluded an agreement, Bush rejected it. The White House replied with threats, essentially stating that as soon as another terrorist attack occurs, we will pin the blame on Democrats in Congress because of their failure to amend FISA to give us what we want.

As usual, the White House was not really interested in compromise. In fact, their conduct demonstrated that they would have much preferred not getting their way; they were in search of a political issue. News of such a ploy might even be enough, with a full-court press from the heretofore pliant media, to reverse our current political doldrums and make people take notice.

But Congress looked Bush’s insatiable quest for power squarely in the eye, unlocked the chicken coop, and said to the fox “here–take anything you want.” The changes that were made were subtle, but arguably they gave the Bush Administration even more than it asked for. And from this point forward, any conversation any American has with a foreigner or a person overseas may be snooped upon, no warrants necessary.

Meanwhile, the government wasted no time in using their expanded data collection powers by punishing the official alleged to have revealed the illegal spying program in the first place.

During the very time Congress was debating codifying President Bush's lawbreaking by revising the FISA law many of his allies had been afraid to publicly challenge as unconstitutional, Alberto Gonzales' DOJ was raiding the home of a former Justice official to identify the person who first brought the illicit program to light [...]

The agents seized (Thomas) Tamm's desktop computer, two of his children's laptops and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told NEWSWEEK the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since The New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants.

The next thing that the Bush Administration will want is immunity. They know that they've expressly broken the law for five years, and while they have sanction for it now, after 2009 a real Attorney General may prosecute. So their next move is clearly to ensure that nobody, particularly not the telecom companies who have given over their infrastructure to the NSA so they can vacuum up millions of communications, is legally liable.

But the Center for Constitutional Rights is trying to head them off by seeking an injunction to declare the FISA bill unconstitutional.

Yesterday, lawyers for Guantanamo Bay detainees asked a federal judge in San Francisco to invalidate the recently-passed FISA law that lets the Bush administration conduct warrantless surveillance on suspected terrorists without first getting court-approved warrants.

“We are asking your honor, as swiftly as possible, to declare this statute unconstitutional,” said Michael Avery, a lawyer for the Center for Constitutional Rights. … “Neither Congress nor the president has the power to repeal the Fourth Amendment’s warrant requirements,” Avery said.

In CCR v. Bush, the Center is arguing that the government’s surveillance jeopardizes its ability to represent Gitmo clients. CCR reports that it has engaged in thousands of telephone calls and e-mails with people outside the United States in the course of its representation.

This whole episode reveals that fearmongering still works and that the Constitution really is just a piece of paper to those who swear an oath to defend it.