When Does the Sun Set on Warrantless Surveillance? (hint: Iceland)

[ProSense]

Tuesday, August 07, 2007

When Does the Sun Set on Warrantless Surveillance?

Marty Lederman
I happen to have been in Iceland this year right around the summer solstice, when the sun never sets. Twilight in the middle of the night was somewhat haunting, spooky even.

Well, as several of our commentors have noted, the so-called six-month sunset provision of the "Protect America Act of 2007" is a bit of a ruse, because it's not clear the sun ever sets on the unchecked electronic surveillance of the Bush Administration. Although section 6(c) provides that the operative provisions of the Act "shall cease to have effect 180 days after the date of the enactment of this Act," i.e., on February 1, 2008, there is an express exception in section 6(d), which reads as follows:

AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).

Thus, "acquisitions" authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date. I think it's fair to assume that the Attorney General will authorize a system of such acquisitions on or close to February 1, 2008, which will mean that the warrantless surveillance can continue until . . . February 1, 2009, or twelve days after the next President is sworn in.

Congress could, in theory, repeal section 6(d) if and when they enact a replacement statute. But it's safe to say this President would never sign a bill containing such a repeal. So it's likely the new surveillance will be in effect throughout the Bush Administration, even in the unlikely event that Congress lets the new Act "expire" on February 1, 2008.

Provision to be Voted On in Six Months or Sooner

FOR IMMEDIATE RELEASE
CONTACT: [e-mail]

WASHINGTON -- The following can be attributed to Caroline Fredrickson, Director of the ACLU Washington Legislative Office:

“This past weekend, Congress capitulated to the Bush administration and gave it the authority to conduct warrantless dragnets of American's international phone calls and emails. And did the administration thank Congress? No. It called for more authority and for a hand out to the telecommunications companies that turned over our records and calls in the absence of a warrant, which they knew was required.

“Just whom did Congress give this unfettered power to? The woes of the Alberto Gonzales Justice Department are well known, but the National Security Agency is no better. Last May, The Baltimore Sun reported that an internal management review at the NSA found the agency ‘lacks vision and is unable to set objectives and meet them,’ and just last week Newsweek reported the NSA so poorly managed it can’t even keep the lights on.

“Where will Congress go from here? More unfettered power for an administration that has no respect for the privacy of the citizenry that elected it? A get out of jail free card for the companies that facilitated wiretapping, that until Sunday, was a crime?

“Congress was meant to be an independent branch of government. Democratic leaders should step up and assert their prerogative to get to the bottom of what the administration has been doing with our private information for the past six years. Congress has still not received basic answers about how intelligence on American soil works or how many of us have had our rights violated. Congress must also rein in the unconstitutional authority it granted the administration this past weekend. Democrats were elected to stop a president who is out of control – not grease the wheels for further abuse. Hopefully it won't take the full six months to pass legislation that will protect American communications. With any luck, congressional leadership will grow a spine before then.”

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Marty Lederman: "But it's safe to say this President would never sign a bill containing such a repeal."

So where will the veto-proof majority come from?

The FISA Amendment and The Founders

[ProSense]

1. Editorials On FISA: ‘Unnecessary And Dangerous Expansion of President Bush’s Powers’

Editorials On FISA: ‘Unnecessary And Dangerous Expansion of President Bush’s Powers’

Last week, under heavy political pressure from the White House, Congress approved the White House-backed version of the Foreign Intelligence Surveillance Act (FISA), which provided expansive spying authority to the Bush administration. The White House had earlier rejected a compromise bill that provided powers sought by the Director of National Intelligence, opting instead to play politics with the issue.

In the past two days, at least nine major newspapers have editorialized against the FISA legislation, with the New York Times today calling it an “unnecessary and dangerous expansion of President Bush’s powers.” Some examples:

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[ProSense]

2. Kick! n/t