Is This the End of FISA (Specter proposes new FISA law: read danger)

[ProSense]

Sunday, February 26, 2006

Mother of Mercy, Is This the End of FISA?!*

Marty Lederman

*Hat tip: Edward G. Robinson.

The Washington Post reports today about legislation drafted by Senator Specter to respond to the NSA/FISA imbroglio. The Post makes it sound as if Senator Specter would be clamping down on the Administration:

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). 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 federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants.

Snip…

The draft legislation isn't at all what Senator Specter has been talking about in recent weeks -- namely, a bill to facilitate judicial review of the legality of the current NSA docmestic surveillance program. This bill would appear to do absolutely nothing to address whether the current and ongoing program(s) is (are) permisisble under current law -- that is to say, it would not seek to facilitate judicial review of the AUMF and Article II arguments on which the Administration is relying.

As Glenn Greenwald notes, it is "disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them."


Snip...

Under FISA, in order for the federal government to engage in electronic surveillance targeted at someone here in the U.S. -- i.e., at phone calls and e-mails going out of the U.S. -- there must be probable cause that the person targeted is a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(3). The Specter bill would go much, much further. Under that bill, it would not be necessary for the NSA to show that either party to an intercepted phone call or e-mail has anything to do with Al Qaeda or any other terrorist organization. It would not even be necessary for the government to show probable cause -- or reason to believe, or any evidence -- that etiher party to the call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power.

more...

http://balkin.blogspot.com/2006/02/mother-of-mercy-is-this-en_114098414956416326.html

As the author of this piece puts it: 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.

[ProSense]

1. In summary

More from link:

Snip...

Therefore, if I'm reading it correctly, if you've ever had any communication with a foreign government or organization, or its U.S. agents or employees -- that is to say, if there's "probable cause" that you live and breathe here in the U.S. -- this bill would permit the President to wiretap you indefinitely, without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda.

Snip...

As Glenn describes it, reading of the Specter bill "is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks." I don't think that's quite right -- in fact, it's like hearing that a lifelong, chronic bankrobber was arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it lawful to rob banks. (Well, with all respect to Glenn, the bank-robbing analogy isn't the best, because the conduct in question here is not as inherently wrongful as grand theft. But the Specter initiative does respond to wanton illegality with a bill to make the conduct lawful.)

[Disturbed]

3. "The law the Administration has been deliberately breaking."

NO accountabilty for BushCo and they are still breaking the law. The FISA Law doesn't need to be changed. It needs to be followed.

The US, Govt., Congress, and the Justice Dept no longer abide by the Constitution of the USA.

The USA is now a Neo Fascist State.

[IsItJustMe]

4. Don't need FISA when you have a king

[marmar]

2. And some people try to credit Specter as being reasonable...

For all the false bravado, in the end he's just an enabler for Bush and the neocons, a lot of bluster on the outside but all bullshit inside. F%@!k him!

:nopity:

[IsItJustMe]

5. He does a great phony sence of outrage, Well I never. Don't fool me.

[regnaD kciN]

7. Not to mention...

...that Arlen "Magic Bullet" Specter was also the prime mover on attacking Anita Hill's character and thus paving the way for Justice Clarence Thomas and the 2000 election decision. :puke:

There are certain Republicans who have tried to establish a "moderate" image based on disagreeing with the Republican leadership on a few meaningless issues of high "symbolic value" while scrupulously following the party line on every matter of import. McCain is the master of this, and Specter seems to be every bit his eastern counterpart.

[Mythsaje]

6. Not like I didn't see THIS coming...

I already knew Specter wasn't to be trusted.

[TomInTib]

8. Old "Magic Bullet" is at it again. You can predict ol' Arlen so easily..

Outrage

"We are going to get to the bottom of this"

"Laws may have been broken"

"After a review it seems as if there were minor procedural mistakes made at lower levels"

"We will rewrite the legislation to insure this doesn't happen again"

Get out the black pens and whitewash.

[regnaD kciN]

9. Any new law would be meaningless even if it WAS tougher...

Bush would simply go along with it, and then issue a "signing statement" that said that a) his warrantless surveillance was in perfect accord with the new law and thus would be cotinuing without modification, and b) that the new law gave him full authority to act in whatever manner necessary to protect national security as "commander-in-chief," regardless of whether it followed the actual provisions of the law regarding getting court approval.

[Minnesota Libra]

10. Welcome to Facist Amerika where even.......

....Russia is more free than we are. Now we're striving for daily life North Korea style. :hide:

[president4aday]

11. Can anyone in DU-land say if this goes through.....

whether there would be any conceivable situation where a warrant would be required?

[ProSense]

12. Presidential Secrecy and the NSA Spying Controversy

Presidential Secrecy and the NSA Spying Controversy

Snip...

Two of the most frequent and most apt criticisms made about the secret Presidential order authorizing spying by the National Security Agency (“NSA”) are:

1) the order violates the Constitution’s separation of powers by authorizing activity in violation of the Foreign Intelligence Surveillance Act (“FISA”) and by thus usurping legislative authority; and

2) the secrecy of the Presidential order violates principles of democratic accountability.

While each point independently has merit, it also is important to understand the connection between the two points. Presidential adherence to legislative mandates is so important in large part because of the protections that are built into the legislative process, including the relative openness of that process. It is no accident that the Constitution both leaves room for the President to operate in secret and subjects the President to substantial legislative control. This constitutional design suggests that while secrecy often is a legitimate tool for the President to use in executing legislative policy, the propriety of such usage itself must be subject to reconsideration and to checking by the legislature to prevent it from turning tyrannical. White House arguments in defense of the secret spying program -- that a general military force authorization should be read so broadly as to encompass such a program and that such a program is within the President’s inherent powers even absent legislative authorization -- fly in the face of a constitutional design meant to keep the President, and Presidential secrecy, under careful control.


Snip...

Finally, experience since discovery of the NSA spying program reflects the dangers of unchecked Presidential secrecy. First, while the program eventually came to light due to leaks, the program took place for roughly three years without public or general congressional knowledge and thus with no opportunity for political oversight. Second, while the White House apparently notified a handful of congressional leaders about the program while it was ongoing, reports indicate that the leaders were instructed that the information was classified and that they were to share it with no one, a situation hardly conducive to oversight. Indeed, a striking aspect of Attorney General Gonzales’ recent Senate testimony on the program is the tension between his claim that the notified congresspersons surely could have “done something about ” were they concerned about it, and his repeated criticism of the leaking that led to the program’s disclosure. Third, in spite of public and congressional concern since the program came to light, the White House to date has refused to release key details necessary to understand and evaluate the basic parameters of the program, including precisely when the program began. Fourth, a number of factors suggest that the White House’s reticence to answer questions in the wake of the program’s revelation is politically strategic. These factors include the Attorney General’s relative amenability to answering questions posed by senators friendly to the program and President Bush’s sudden public disclosure of details of a terrorist plot against Los Angeles in the wake of the program’s revelation. These examples, by no means exhaustive, illustrate the President’s special capacity for secrecy and the dangers that such capacity breeds. Such illustration reveals the wisdom of the Constitution’s structural protections against unchecked Presidential secrecy and the damage that can be done by erosion of those protections.

Heidi Kitrosser currently is a visiting associate professor at the University of Minnesota Law School and an assistant professor at Brooklyn Law School. She will be an associate professor at the University of Minnesota Law School as of fall 2006.

February 27, 2006


http://jurist.law.pitt.edu/forumy/2006/02/presidential-secrecy-and-nsa-spying.php

[ProSense]

13. Dean Yale Law School on Specter proposes bill

Though Koh and Specter exchanged warm greetings after the hearing, Koh devoted the latter portion of his opening statement to criticizing Specter's proposed bipartisan legislation as "premature" and "irresponsible" if enacted before Congress became privy to the full story behind the spying program.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=2487724&mesg_id=2487724

[Independent_Liberal]

14. Start telling the Dem Senators about this now guys!

We must put a stop to this arrogance! Robert Byrd, get on the floor of the Senate right now and tell the Repugs that this is a democracy, not a dictatorship!