Tuesday, August 07, 2007
When Does the Sun Set on Warrantless Surveillance?
Marty Lederman
http://balkin.blogspot.com/2007/08/when-does-sun-set-on-warrantless.html"...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.ACLU Analysis of the Protect America Act (8/29/2007)
http://www.aclu.org/safefree/general/31496leg20070829.html"Section 6
Continuation and Sunsets. Subsection (a) puts the bill into effect immediately...
Subsection (c) creates a 6 month sunset.
Subsection (d) mandates that any order in effect on the day of the sunset shall be in effect until its court ordered expiration date, which may be up to a year
It other words, orders issued in February of 2008 – immediately before the sunset – will be in effect until February of 2009, keeping this program alive through the end of the Bush Administration."Wiretap at Will
http://www.slate.com/id/2171747/pagenum/all/#page_start"....A year ago, we might have chalked this up to the kind of groupthink travesty that unfolds when the same party controls the White House and both houses of Congress. But the saddest thing about this whole affair was the haste with which congressional Democrats—some seeking re-election next year in conservative districts—folded up their objections and went on vacation. Jerry Nadler, D-N.Y., complained that Democrats were "stampeded by fearmongering and deception." What's extraordinary is not so much how craven the Republican rhetoric was, but that even now, after seven months of the obvious mandate conferred by their congressional majority, Democrats are still so easily cowed. However alarmist the talking points, congressional Democrats have "a Pavlovian reaction," Caroline Fredrickson of the ACLU observed. "Whenever the president says the word terrorism, they roll over and play dead."
Proponents of the Republican bill might have had a leg to stand on if the Democrats had opposed "modernization" of the old FISA law. But they didn't: They simply opposed modernization without accountability. It was the president and Republican lawmakers who held out for the latter, running the risk that the changes would not be written into law before the August recess. Yet Mitch McConnell, R-Ky., got away with lines like, "Al-Qaida is not going on vacation this month." Connecticut Sen. Joe Lieberman, another supporter of the bill, came up with this canard: "We're at war. The enemy wants to attack us. This is not the time to strive for legislative perfection." Huh? The bill passed the House 227-168 and the Senate 60-28.
The only concession in the new law is the promise that its provisions will sunset in six months, giving Congress an opportunity to work on something even Lieberman might deem "legislative perfection." In an effort to save face, many Democrats are vowing to fight another day. But if you look closely at the final subsection in the law, it indicates that while the legislation itself will sunset in six months, any programs authorized under the legislation may continue. When President Bush signed the bill Sunday, he made clear that he, for one, is looking forward to more comprehensive legislation on wiretapping, not because he thinks the Democrats are going to take anything away from him when they revisit this issue, but because he's kinda hoping they'll cough up even more. Specifically, he's hoping for "meaningful liability protection" for telecommunications companies, like AT&T, "who are alleged to have assisted" the government by furnishing NSA with warrantless access to domestic communications. Yale Law professor Jack Balkin highlights the peculiar wording of Bush's fervent hope: He can't acknowledge that the phone companies helped out, because what they did was illegal. But that's not going to stop him from asking Congress to shield them from liability. It seems a bit greedy—even cheeky. But then, you can't blame a guy for asking. And given Congress' willingness to definitively euthanize FISA and declare open season on domestic surveillance, he might just get what he wants."S. 1927: Protect America Act of 2007
Text of Legislation
http://www.govtrack.us/congress/billtext.xpd?bill=s110-1927Monday, August 06, 2007
Bush to Democratic Congress: Your Complete Capitulation is Not Good Enough
http://balkin.blogspot.com/2007/08/bush-to-democratic-congress-your.htmlJB
"From the President's Message on signing the FISA fix:
When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.
Note the key item on this wish list: legal immunity for having participated in the illegal NSA program..."
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