FISA, the NSA, and the Specter Bill:
In the last 24 hours, there have been some important developments concerning legislation to address the NSA domestic surveillance program. The White House and Senator Specter have agreed to a bill, although the MSM is doing a pretty bad job (at least so far) of reporting what is actually in it.
If you really want to know what is going on, I recommend sticking to the blogs. I have posted a few things at my solo blog, including this recent post: The Specter Bill's Major Shift in Constitutional Authority to Conduct Monitoring. Balkinization has several very critical posts, including Jack's post Specter Gives Up The Game -- The Sham NSA Bill and Marty's The Specter Monstrosity. Over at Prawfsblawg, Steve Vladeck has a post entitled The Specter Bill, the TSP, and the FISA Court: Some Thoughts.
If you really want to know what is going on, I recommend sticking to the blogs. I have posted a few things at my solo blog, including this recent post: The Specter Bill's Major Shift in Constitutional Authority to Conduct Monitoring. Balkinization has several very critical posts, including Jack's post Specter Gives Up The Game -- The Sham NSA Bill and Marty's The Specter Monstrosity. Over at Prawfsblawg, Steve Vladeck has a post entitled The Specter Bill, the TSP, and the FISA Court: Some Thoughts.
It seems to me the republic and its citizens survived just fine from its founding through 1977.
How about a little bit of reason from all these "professors"??
Says the "Dog"
(As usual, I don't understand the JYLD's regular use of scare quotes. Does he not believe that the people linked to are actually professors?)
For instance, will someone please tell the Times and WaPo that there is a big difference between submitting a program for legal review AFTER it has been legalized, which is all the president has agreed to do, and submitting it for legal review now, when it is almost surely illegal. Why does the first scenario count as an concession?
Moreover, from a civil liberties perspective, this bill makes the Patriot Act look like something written by the ACLU. The Patriot Act just made some minor adjustments to FISA. This bill makes a joke out of FISA; it makes the entirely statutory scheme optional. Maybe that is worth reporting.
You're so correct. In the good ol' days, J. Edgar Hoover could spy on wheoever he damned well pleased. And what was wrong with that? Men were men, and hippes were enemies of the state. Just the way America was meant to be.
/snark
/nosnark
To the posters worried about the return of Nixon. 1. The only thing Nixon did that Clinton didn't was cover up a third rate burglary. In terms of misuse of the IRS and surveillance Clinton did more of that with the IRS and Echellon. I'm sorry but FISA was bad law created out of democrat hysteria and desire to milk watergate for all the could, even if that meant laying the groundwork for 9/11. The Church Committee reforms so gutted effective intelligence gathering that 9/11 was inevitable.
So sorry, but I don't find unwinding the wrongheaded actions of an overwhelmingly democrat and hysteria riddled congress to be such a bad or scarry thing.
To the guy who question my use of quote marks: No I don't question the fact that they are professors, I am questioning their state calm and reasonableness of their reactions to some reworking of some bad laws from a hysteria ridden and out of their minds 1970's congress.
Says the "Dog"
Senate Judiciary Committee Chairman Specter is too much a publicity hound for his statements alone to mean much, and recent immigration bill events demonstrate what happens when Sensenbrenner's opinions are disregarded.
That she does this at Balkin's blog is more interesting.
Obviously, I need to go home early. Thanks, Anon.
Almost as good as the time I bitched about John Woo's torture memos ....
The Senate has a different tradition, and minority senators have a little more clout if they stick out their necks to exercise, such as in a filibuster. But most Democrats there have shown no backbone over this issue. With few exeptions, such as Feingold, they almost certainly lack the will.
Early on in this controversy, there appeared to be some principled Republican opposition to Bush in the Senate. But it has evaporated, as Specter's performance demonstrates, after the White House succeeded in making this a party-loyalty issue.
What is amazing is that Specter has the lazy press fooled into thinking he is vigorously pushing back against Bush and Cheney over executive power issues, while his actions are now those of a White House pawn.
Now that Bush has adopted this as his legislative vehicle, there no doubt will be a strong leadership push in both houses to enact Specter's bill. There are two things Bush and Cheney care most about -- executive power and the "war on terror." While the administration has been losing in the courts on these issues, they have played the political venue masterfully and probably will continue to do so.
Are there no Bob Barr-types left in the Republican side of the House?
Well, there's Ron Paul. You wanna bet FISA's future on his support (if he does support it)?
Besides, Hastert only allows votes on propositions favored by a majority of the majority.
I have to add for the record, as someone who considers himself a legal conservative, how appalled I have been at the performance of certain Republican senators.
Those who were out front expressing principled opposition to the legal rationale for NSA surveillance -- Lindsay Graham and Arlen Specter -- have completely caved. Specter's recent thespian performance as a defender of congressional prerogatives, while doing the White House's bidding, deserves an Oscar.
Specter has convinced the Washington press corps, which does not look beyond Specter's spin to analyze the content of his legislation, that capitulation on his part is really a serious concession by Bush! Orin's observation that "the MSM is doing a pretty bad job (at least so far) of reporting what is actually in it" is absolutely correct.
One can always hope for some judicial action. From the news stories I have seen about the Detroit case, Judge Taylor seems to have probed the plaintiffs mostly on the standing issue, while the government is centering its own attention on the claim of state-secrets privilege.
Face it, things have changed since Nixon. In particular, the technology has changed, as has the enemy. FISA was originally written with the USSR and the PRC in mind. The procedures implemented in FISA are just much too cumbersome in today's fast moving communications world. The NSA has a very short time frame to determine whether to surveil a conversation (actually, they seem to record it automatically, and then have to decide whether to listen to it). Compare this to the weeks required to get a FISA warrant. And the Emergecy Orders provision is no help either, according to the one person who has to sign them, the AG.
So, a good part of what is being proposed is program oversight at a more gross level. Instead of having to get thousands of warrants to listen to mostly garbage communications, they could just show on a routine basis that it isn't being abused.
Finally, I see the "savings" provisions being directly related to Hamden and the final apparent acceptance by at more than the most liberal members of the Supreme Court the Jackson concurrance, presumably moving this out of the Jackson III category. Needless to say, the Administration doesn't buy that the Youngstown Jackson concurrance is binding, but this would presumably make it explicit.
I don't see anyone in this thread opposing updating FISA as necessary in light of current technology and new threats. But that is not what Specter's bill does. Indeed, it doesn't even provide for oversight--the bill leaves it solely up to the President's discretion whether or not he even seeks FISA approval for a program, and the FISC can simply dismiss any legal challenges "for any reason".
So, this bill isn't about what FISA should look like. It is about a much deeper question--namely, how we as a society are going to go about making these decisions during what is undoubtedly going to be a decades-long struggle. Are we going to use democratic processes and the rule of law to make these decisions? Or will we simply let the Executive Branch alone make these decisions, unchecked, unbalanced, and unreviewable, and hope for the best?
And maybe you think such a concentration of power over the next several decades is for the best, but I don't. Indeed, I would have thought that if the last few years had taught us anything, it would be that an unchecked, unbalanced, and (what they hoped was) unreviewable Executive Branch tends to end up being not only abusive of their power, but also downright incompetent.
Anyway, that is the real issue. If it was just about updating FISA, then something like Harman's approach is all we would need.
"To the posters worried about the return of Nixon. 1. The only thing Nixon did that Clinton didn't was cover up a third rate burglary. In terms of misuse of the IRS and surveillance Clinton did more of that with the IRS and Echellon."
1) It's amazing that a fanatical whackjob GOP House, in 1998, didn't seem fit to make such allegations in the bill of impeachment. Perhaps they had a sudden fit of Christmas cheer.
2) "third rate burglary" - anybody who considers a president staging illegal break-ins and buggings of political opponents to be commiting merely that, frankly, has shown their political stripes.
3) After implying that Clinton committed all sorts of such crimes, your reaction is to enable Presidents to be able to more such things, with greater latitude and far less accountability. Interesting.
"Face it, things have changed since Nixon. In particular, the technology has changed, as has the enemy. FISA was originally written with the USSR and the PRC in mind. The procedures implemented in FISA are just much too cumbersome in today's fast moving communications world. The NSA has a very short time frame to determine whether to surveil a conversation (actually, they seem to record it automatically, and then have to decide whether to listen to it). Compare this to the weeks required to get a FISA warrant. And the Emergecy Orders provision is no help either, according to the one person who has to sign them, the AG."
IIRC, FISA allows retroactive search warrants, which, to my 20th-century mind, allows for 'fast movement'. Perhaps in the 21st century, retroactive is not fast enough. Second, and again IIRC, the FISA court record is something like well over 99% of warrants being granted. That, again to my stodgy 20th-century mind, is not the mark of a court which is unwilling to allow massive fishing expeditions.
Now, perhaps the NSA, in a fit of restraint largely unkown to the national security state apparatus, was being very, very circumspect with what warrants they requested, in order to maintain this 99%+ rate - perhaps they were only going after 'sure things'. However, we now know that the NSA was absolutely on board with the Bush administration's highly illegal programs, even after enough time had passed to rework the laws, to allow for a 'post-9/11 world'. So the 'circumspect' hypothesis can be ruled right out.
That leaves us with a 99%+ approval rate, for operations about which J. Edgar Hoover would have creamed his skirts.
And as a general matter, I think that at this point, one would have to be willfully ignorant to believe that this Administration only seeks freedom from legal restraints because they have carefully calculated that such freedom is necessary in light of particular recent events. It is absolutely clear that people like Cheney, Addington, and Yoo came into this Administration with a longstanding desire and intent to systematically remove legal restraints on executive power, and that they have simply seized on 9/11 and other recent events as a public rationalization for this preexisting intent.
So, any argument that starts with blindly accepting the Administration's contention that a particular freedom from restraint is actually necessary is a nonstarter for me. We simply have far too much information at this point about how this Administration deals with such issues to place such faith in this Administration's claims.