The Senate Caves In

The Senate, with the assistance of 16 defecting Democrats (and Joe Lieberman), has passed the President's version of FISA legislation. That after the President reneged on a deal negotiated by Director of National Intelligence Mike McConnell and then accused the Democrats of endangering national security by failing to come up with legislation that is acceptable to McConnell.

And let's keep in mind the overall context of this legislative wrangling. The Bush administration has been outright violating FISA for years. When these illegal activities were disclosed, legislators from both parties offered to work with the administration to amend FISA to allow these programs to operate within the law. But the administration and its allies in Congress wanted none of it.

February 7, 2006:

In an interview to air on Tuesday night on PBS' "Newshour," Cheney was asked whether President George W. Bush was willing to work with Congress to settle some of the legal questions about the spy program.

"We believe... that we have all the legal authority we need," Cheney said.

February 2, 2006:

Senate Majority Leader Bill Frist, standing firmly with the White House on the administration's eavesdropping program, said Sunday he doesn't think new or updated legislation is needed to govern domestic surveillance to foil terrorists.

January 23, 2006:

JIM LEHRER: So, you're okay then with Congress passing new legislation that would either -- new legislation or amend the FISA law to bring this in to all kinds of -- to make it -- to make real sure it's legal and the critics have no more complaints?

ALBERTO GONZALES: Well, we believe that the Congress has already spoken on this issue. We do believe the president has inherent authority under the Constitution.

But now all this is inoperative. Why? Because the FISA court, in a secret order that the administration has not yet made available or even acknowledged, has ruled that even the scaled-back version of the NSA program that it was finally allowed to review in January of this year, is illegal.

So now, after almost six years of operating outside of FISA and while still claiming the authority to do so in the future, the Bush administration is demanding that Congress amend FISA in exactly the way it wants, immediately. Anything less endangers the country.

Nevermind that the administration could have easily secured this legislation in 2001 but chose not to (because it wanted to aggrandize power and operate without oversight or public opposition).

So what about the legislation itself? What does it do? For that, I recommend reading all the posts over at Balkinization, particularly this one by Marty Lederman. Marty writes:

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

It seems to me that this provision is intended to allow the wholesale warrantless interception of virtually all international communications. I think this passage from the the New York Times December 24, 2005 story is highly relevant:

Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.

Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. "If the government is gaining access to the switches like this, what you're really talking about is the capability of an enormous vacuum operation to sweep up data," he said.

What's important to understand is that this bill would allow much broader surveillance than what the Bush administration has so far acknowledged doing. Until the administration actually discloses what activities it has engaged in and promises to abide by FISA, I just don't see how any self-respecting member of Congress could vote to give the administration additional powers. I understand that FISA is not a perfect law and there are ways it could be improved and further-modernized, but until you actually know what the administration has been doing over the last six years and the extent to which it is willing to comply with even an amended FISA, you're just legislating in the dark. It's craven and reckless.

The six months sunset provision doesn't give me much reassurance either. If Congress is too craven to withstand administration pressure in this scenario, does anyone believe they'll actually have the stones to take existing powers away when they come up for renewal? Not likely.