Some Observations on the Surveillance Deal
(Cross-posted at Unclaimed Territory)
Glenn did a fantastic job on Wednesday explaining why the surveillance deal struck by the White House and the Republican Senators on the Intelligence Committee is a joke, and I just want to throw out a few additional observations.
Glenn noted that "[w]hat the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities." Based on this morning's Times article, it may actually be worse than that. Under FISA, the government must get a judge to sign off on each individual warrant before surveillance begins (or within 72 hours). It appears that under this "compromise," the administration may conduct surveillance without any outside approval for up to 45 days. At that point they must either seek a FISA warrant or explain to the special subcommittee why they need to continue without a warrant. In other words, the legislation replaces FISA judges with no one.
And let's be realistic, does anyone think that members of Congress--even well-intentioned ones--are going to provide the kind of individualized, careful review that a federal judge with lifetime tenure would? Moreoever, it's unclear what, if any, classified access will be given to the staff members of the Senators and Representatives who will serve on these committees. If clearance is given only to the members of Congress themselves, it is almost inconceivable that there will be any meaningful individualized review of surveillance decisions, even assuming the administration provides the committees with complete access to all relevant information, which I would certainly not count on them doing.
Sadly, this plan does not even allow for any meaningful program-wide review. Members of Congress have neither the expertise nor the inclination to subject the administration's activities to meaningful constitutional review. At least under Specter's plan, a court would have to bless the program as a whole, which would provide some assurance that minimum Fourth Amendment standards were met. I would be shocked if this Senate subcommittee ever spent a single afternoon grappling with the difficult Fourth Amendment issues raised by this sort of surveillance.
In fact, this bill may actually be worse than the status quo. When the presiding judge of the FISA Court first learned that the NSA had been bypassing FISA and conducting warrantless surveillance, she instituted a rule that forbid the government from using any information obtained from this illegal surveillance in its applications for FISA warrants. This was an attempt by the FISA Court to keep the warrantless surveillance program from rendering FISA totally meaningless. If this proposed bill becomes law, it will legitimize these warrantless intercepts and eliminate any legal justification for not allowing evidence obtained through such surveillance to be used to apply for FISA warrants. The result will be a system that would be comical if it wasn't so Orwellian; the government will be able to use warrantless surveillance to gather the evidence necessary to apply for a warrant. That's exactly like permitting the police to ransack your house and then use the evidence they find to secure a search warrant.
And most significantly, this proposed bill fails to address the elephant in the room: the administration's theory of executive power. According to the Post, immediately after this agreement was reached Scott McClellan "reiterated the position that Bush already has the power to institute the program." In their eyes, that power is far more expansive than what even this watered-down piece of legislation purports to authorize. So why does anyone think they'll abide by its terms? I thought this graphic at Think Progress summed the situation up pretty well.
On a final and somewhat tangential note, the editorial board of the Washington Post reacted to this news in a way that beautifully illustrates the compartmentalization problem I described the other day. The editors at the Post have the following advice for Congress:
Newsflash: we have "modernize[d] the compromise between national security and liberty that FISA represented in the 1970s." It's called the Patriot Act. Congress renewed it just yesterday, and there was a whole article devoted to it in the Post. As John Yoo wrote in 2003, "the Patriot Act contains . . . common-sense adjustments that modernize existing laws, like FISA." Or how about Bush himself when he signed the Patriot Act: "The new law recognizes the realities and dangers posed by the modern terrorist . . . Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists."
Glenn did a fantastic job on Wednesday explaining why the surveillance deal struck by the White House and the Republican Senators on the Intelligence Committee is a joke, and I just want to throw out a few additional observations.
Glenn noted that "[w]hat the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities." Based on this morning's Times article, it may actually be worse than that. Under FISA, the government must get a judge to sign off on each individual warrant before surveillance begins (or within 72 hours). It appears that under this "compromise," the administration may conduct surveillance without any outside approval for up to 45 days. At that point they must either seek a FISA warrant or explain to the special subcommittee why they need to continue without a warrant. In other words, the legislation replaces FISA judges with no one.
And let's be realistic, does anyone think that members of Congress--even well-intentioned ones--are going to provide the kind of individualized, careful review that a federal judge with lifetime tenure would? Moreoever, it's unclear what, if any, classified access will be given to the staff members of the Senators and Representatives who will serve on these committees. If clearance is given only to the members of Congress themselves, it is almost inconceivable that there will be any meaningful individualized review of surveillance decisions, even assuming the administration provides the committees with complete access to all relevant information, which I would certainly not count on them doing.
Sadly, this plan does not even allow for any meaningful program-wide review. Members of Congress have neither the expertise nor the inclination to subject the administration's activities to meaningful constitutional review. At least under Specter's plan, a court would have to bless the program as a whole, which would provide some assurance that minimum Fourth Amendment standards were met. I would be shocked if this Senate subcommittee ever spent a single afternoon grappling with the difficult Fourth Amendment issues raised by this sort of surveillance.
In fact, this bill may actually be worse than the status quo. When the presiding judge of the FISA Court first learned that the NSA had been bypassing FISA and conducting warrantless surveillance, she instituted a rule that forbid the government from using any information obtained from this illegal surveillance in its applications for FISA warrants. This was an attempt by the FISA Court to keep the warrantless surveillance program from rendering FISA totally meaningless. If this proposed bill becomes law, it will legitimize these warrantless intercepts and eliminate any legal justification for not allowing evidence obtained through such surveillance to be used to apply for FISA warrants. The result will be a system that would be comical if it wasn't so Orwellian; the government will be able to use warrantless surveillance to gather the evidence necessary to apply for a warrant. That's exactly like permitting the police to ransack your house and then use the evidence they find to secure a search warrant.
And most significantly, this proposed bill fails to address the elephant in the room: the administration's theory of executive power. According to the Post, immediately after this agreement was reached Scott McClellan "reiterated the position that Bush already has the power to institute the program." In their eyes, that power is far more expansive than what even this watered-down piece of legislation purports to authorize. So why does anyone think they'll abide by its terms? I thought this graphic at Think Progress summed the situation up pretty well.
On a final and somewhat tangential note, the editorial board of the Washington Post reacted to this news in a way that beautifully illustrates the compartmentalization problem I described the other day. The editors at the Post have the following advice for Congress:
The goal should be to modernize the
compromise between national security and
liberty that FISA represented in the 1970s:
to legitimize essential surveillance by law,
require judicial review when the targets are
U.S. citizens or residents, limit the use of this
material to counterintelligence purposes, and
ensure that irrelevant material is not
retained.
Newsflash: we have "modernize[d] the compromise between national security and liberty that FISA represented in the 1970s." It's called the Patriot Act. Congress renewed it just yesterday, and there was a whole article devoted to it in the Post. As John Yoo wrote in 2003, "the Patriot Act contains . . . common-sense adjustments that modernize existing laws, like FISA." Or how about Bush himself when he signed the Patriot Act: "The new law recognizes the realities and dangers posed by the modern terrorist . . . Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists."
posted by A.L. at 10:49 PM
4 Comments:
Well done, Anon. As this admin is the essence of bad faith, a more bitter brew awaits, steeping in a pot of "oversight."
My head hurts. I am glad you are paying attention AL.
glad you are running the interference downstairs at glenn's. I like to stop by here, but am really pleased with the way the recent troll infestation has subsided.
Course, its not the troll's fault -- that is what trolls do.
But since you have been there, the resident "copy and paste" crowd has spent lest time putting inane wingnut talking points on their clipboard and dumped these off-topic inflamatory statements into the comments.
Guess its the power of 2 thing -- hope you can keep it up!
you're aware, of course, that your post today is getting intense, and deserved, play over at dailykos. members are asking your permission to excerpt and send to their congressmen
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