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Future of NSA Surveillance Legislation:
President Bush has urged the lame-duck Congress to pass legislation restructuring the Foreign Intelligence Surveillance Act and explicitly permitting the NSA Terrorist Surveillance program. As you might expect, Democratic leaders are, um, unenthusiastic about the plan: they have suggested that they'll filibuster any attempt to pass the legislation before the new Congress.

  Today the AP is reporting that the Bush Administration isn't giving up:
  The Bush administration has a backup plan. In speeches over the next few weeks, the Justice Department will launch a new campaign for the legislation by casting the choice as one between supporting the program or dropping it altogether - and appearing soft on al-Qaida.
  Attorney General Alberto Gonzales will make the eavesdropping program the focus of a Nov. 18 speech at the U.S. Air Force Academy. Kenneth L. Wainstein, assistant attorney general for the national security, will make a similar pitch Wednesday to the American Bar Association.
  The problem with this "backup plan," it seems to me, is that authorizing the Terrorist Surveillance Program is only one of several goals of the NSA legislation. The legislation does much more than authorize the program; it amounts to a dramatic shift in the relationship between executive and legislative power in the area of intelligence surveillance, and authorizing the TSP is only one consequence of that shift. I hope that Gonzales and Wainstein won't suggest that the choices are to pass this particular legislation or shut the program down. There are a lot of other options.
Oren (mail):
Patrict Leahy and Robert Byrd are consummate masters of arcane parliamentary maneuvers - delaying a bill for a few weeks will be a piece of cake.
11.11.2006 3:04pm
godfodder (mail):
To be honest, I don't understand the hullabaloo about this NSA program. It seems obvious to me that locating spys, saboteurs, and other "operatives" of the enemy in a time of war was/is quite different than typical, non-military legal searches. During WW2, did the government routinely obtain court orders for counter-espionage operations? If a German speaking man with binoculars was found watching ship movements outside a naval base, would he be let go? Because, afterall, he was committing no crime! Even in wartime, you can look at ships, right?

The executive branch and the military have to have some legal flexibility when confronting an enemy's military. Otherwise, our foes would just exploit these obvious weaknesses. Thank goodness that the Germans never realized that they were "untouchable," if they just took off their uniforms, and denied they were german soldiers, huh? Actually, German soldiers out of uniform behind enemy lines were likely to be shot on sight, not held until the police could conduct a proper investigation. I guess we weren't very civilized back then.

For Democrats, having Bush be president is a "worst case scenario" for executive privilege. So please, imagine Bill Clinton as president during a time of war, with thousands of spies, murders and saboteurs spread out across our country. How do you think he should address that situation? Do you think he should be accused of "fascism" and "tyranny" everytime he suggests that current court processes are too slow to apprehend these killers? Do you think President Clinton's primary desire is to perform an end-around the Constitution, merely so he can arrogate more power to the Executive Branch? Why are you convinced of that? Why is it not credible that Bill is trying to remedy a real and serious problem? Why are you convinced that current FISA procedures are adequate, even when President Clinton says they are not? Doesn't he have more experience in this matter?

Of course, Bill Clinton is no longer president. Instead we have that evil idiot George Bush. His motives are clearly not like those of Bill Clinton. For starters, he's evil, right? It is best to assume that he's up to no good, and that the FISA court is always the right thing to do. We have zero, zip, nada evidence that the NSA program has been misused, but Bush seems so interested in keeping it that it makes one suspicious. Afterall, he's an idiot, right?
11.11.2006 3:40pm
Wintermute (mail) (www):
Orin, you working in Chicago now, and through when?

I've just sent one of my very longest-time friends to the new House; and I want you to meet him.
11.11.2006 3:41pm
OrinKerr:
Godfodder,

Do you feel the same way if it turns out that the program works by vaccuuming up most of the e-mails and phone calls sent in the United States in the last 5 years and sending them all to the NSA where it can analyze them? Does your view that this is okay depend on whether the program works or doesn't work?

Wintermute,

Send me an e-mail at my gwu.edu account.
11.11.2006 4:15pm
rfg:
" I hope that Gonzales and Wainstein won't suggest that the choices are to pass this particular legislation or shut the program down."

Unfortunately, the AP report suggests exactly that.

Godfodder: Since whe are we at war? Did Congress declare war? Is the Authorization for the Use of Military Force (AUMF) a declaration of war? Against who? A noun? A country? Anyone found responsible for 9/11? Anyone that does not like the US? If the last, when does the search end?

Unfortunately, the use of the term war to describe what is little more than a punitive expedition confuses the issues.

Maybe I'm just weird, but I would not care to see any administration with these powers. I am reminded that after the Oklahoma City bombing, the Clinton administration requested an expansion of the government's surveillance cabailities which was then described in quite unflattering terms by many of the current administration's supporters.

It still depends on whose ox is gored.
11.11.2006 5:33pm
Anderson (mail) (www):
I hope that Gonzales and Wainstein won't suggest that the choices are to pass this particular legislation or shut the program down. There are a lot of other options.

That's exactly what Bush &Gonzales do NOT want us to think. Of *course* it's going to be "either/or." I really don't understand why anyone would expect anything different of this administration.

Remember, if the Democrats win, the terrorists win. And the Dems have won. Ergo ...
11.11.2006 5:45pm
BobNSF (mail):
The newly elected Dem majority is pledging to work with the minority. The current majority could do the country and itself a lot of good by sitting down the the Dems and working out what the Congress wants instead of doing Dubya's bidding again.

Heck, they could even consider the constitution while drafting the legislation.
11.11.2006 6:55pm
jrose:
Why are you convinced that current FISA procedures are adequate

I'm not, and wouldn't be surprised if they are aren't. However, that is no reason to withdraw oversight - only to change how oversight is provided. Bush should make his case (behind closed doors to Congress if national security dictates) as to why the current process is inadequate, and if convinced Congress can craft legislation that balances the needs of security and freedom.
11.11.2006 7:03pm
picpoule:
I second godfodder's comment.
11.11.2006 7:24pm
A.S.:
Is there any actual legislation proposed whose sole effect is to explicitly permit the NSA Terrorist Surveillance program? My understanding of the other actual legislation that has been proposed is that they do not simply permit the program as it currently exists. Of could be wrong about that though - I haven't followed the various legislative proposals all that closely.

However, unless and until there is actual legislation proposed whose sole effect is to explicitly permit the NSA Terrorist Surveillance program, I think that Orin is wrong: the only options are to pass the proposed legislation or to leave the program to the vagaries of the courts. So long as Orin's "other options" are purely theoretical, they aren't real options.
11.11.2006 7:46pm
OrinKerr:
A.S.,

I don't understand your proposed distinction between "theoretical options" and "real options." You could allow the program with a single phrase amending FISA; just a few words could do the trick. If I write out the words for you, does that mean that the option has ceased to be a "theoretical" option and has now become a "real" option? I realize that the Administration can do no wrong in your view, but I think you're taking a rather far-fetched position to get there here.
11.11.2006 8:51pm
Richard Aubrey (mail):
It would appear that some of the resistance to such actions on the part of the intel community was primarily partisan. A lot of the clowns in congress have no intention of being hobbled by the constitution when it is inconvenient, but they are determined that it will hobble their enemies as much as possible. Their enemies being the other party, not secondary considerations like people trying to kill us.

Perhaps this could be seen as a threat: Play your games, and we'll just use some different rules. You had your chance and you blew it.
11.11.2006 9:56pm
Howard Gilbert (mail):
NY Times Nov 10:
Prime Minister Tony Blair said Friday that the threat from homegrown Islamic terrorism would last "a generation," reinforcing a highly unusual warning by the head of the MI5 domestic intelligence agency that it was keeping some 1,600 suspects in 200 terrorist cells under surveillance...
Dame Eliza Manningham-Buller, head of MI5, said ... "What do I mean by numerous? Five? Ten? No, Nearer 30 — that we know of. These plots often have links back to Al Qaeda in Pakistan and through those links, Al Qaeda gives guidance and training to its largely British foot soldiers here on an extensive and growing scale."

So is it rational to assume, as NSA critics seem to insist, that if MI-5 is keeping 1600 people in Britain "under surveillance" who have ties to Pakistan, and has always had the same telephone numbers that the NSA had, that for some reason they are not monitoring calls to those numbers. Because, if they are monitoring such calls (in a country where such monitoring is completely legal), then they are also intercepting all US calls that switch in Cornwall between US transatlantic cables (TAT-14, TAT-12, ...) and the FLAG cable that connects England to the Middle East and Pakistan.

It is nonsense for the President to claim that FISA has to be updated for the NSA program to continue. Currently FISA only applies "if the conversation is aquired in the United States". There are people who insist that the program was illegal in the past. I don't find that convincing, but even if the program was done illegally before, there is simply no rational argument that says it can't change in the future. Simply let MI-6 acquire all the conversations, including conversations that transit the UK from the US, and send us a copy. Then everything is 100% legal under the current FISA wording.
11.11.2006 11:04pm
Just an Observer:
A.S.:Is there any actual legislation proposed whose sole effect is to explicitly permit the NSA Terrorist Surveillance program? My understanding of the other actual legislation that has been proposed is that they do not simply permit the program as it currently exists.

We can't know for sure how to craft specific legislation unless the administration is more forthcoming with operational details.

FWIW, there is one bill, the DeWine bill in the Senate, that seems intended generally to ratify the de facto program, using language that roughly tracks the general public descriptions promulgated by the administration.

However, Bush is asking for immediate passage of a sweeping bill sponsored by Specter that effectively repeals the core requirement of FISA and makes the whole statute optional, and fundamentally restructures what is left. It goes far beyond simply ratifying the "Terrorist Surveillance Program" as its limits have been described.

There also is a bill, sponsored by Feinstein, that is drafted to address the specific practical complaints articulated by the administration about FISA's current procedures. Feinstein says that having been briefed about the program, she is convinced that the current surveillance could be accommodated within the more incremental amendments to make the warrant procedures more flexible.

Of course, there is always the option of passing no legislation at all. Since the administration claims to believe the current program is actually lawful under current law, despite one District Court decision to the contrary, and wrote that really keen 42-page "white paper" advancing its legal theories, all it has to do is put those theories into a real brief and file it in real cases before real judges. Surely the Supreme Court eventually will see the light and uphold them as righteous! (Caveat: Not even the administration really believes that spin, and has been afraid to brief the merits at all. If the courts reach the merits, Bush almost surely will lose. But there is a significant chance that the cases against the government will fail on procedural questions such as standing.)

In any event, since the injunction shutting down the program is stayed pending appeal, and stays are likely in the event of adverse lower-court rulings in similar cases being litigated, it is not necessary to pass any legislation now just to keep the controversial surveillance going in the short run. There is ample time for the 110th Congress, after due diligence and fact-finding, to consider what amendments to FISA are desirable, if any. And there is no compelling reason to act precipitously in the lame duck.
11.12.2006 2:04am
Lev:
If they can figure out how to stick in the omnibus budget bills that have to be passed, then it can't be filibustered and only needs 51 votes to pass.
11.12.2006 2:08am
Brett Bellmore:
Typical, they've only got this incredibly narrow window in which to reestablish Republican credibility by doing some of the things they know the public wants, but they've put off for 12 years. And Bush wants them to squander it trying to give the President who led them to defeat more power.

Congressional Republicans should laugh in the President's face, and work on some kind of omnibus reform bill to steal the Democrats' thunder should they actually make an effort to position themselves as sober reformers. They could call it "The Stuff We Were Really Elected To Do Act of 2006".
11.12.2006 7:54am
Justin (mail):
"I hope that Gonzales and Wainstein won't suggest that the choices are to pass this particular legislation or shut the program down. There are a lot of other options."

Ummm, did anyone pay attention to the President's position on torture?
11.12.2006 9:56am
A.S.:
I don't understand your proposed distinction between "theoretical options" and "real options." You could allow the program with a single phrase amending FISA; just a few words could do the trick. If I write out the words for you, does that mean that the option has ceased to be a "theoretical" option and has now become a "real" option?

No. It would take an actual legislator to introduce an actual bill, that could be actually voted upon. Which, as I wrote, I don't believe exists (although, to reiterate what I wrote above, I could certainly be wrong about that; JaO indicates that perhaps the DeWine bill is such).

After all, I can write words that would permit the program too ("FISA is hereby repealed", among other things, would do the trick).

If the Democrats in Congress (the persons who the President was addressing) want to object along the lines you seem to be objecting - that they would be willing to support explicitly permitting program but object to the other changes - then they could introduce and support a bill to do so. Have they? It is disingenuous for them to make the objection you are if they do not introduce an actual bill to do what you propose.

I realize that the Administration can do no wrong in your view

I don't know why you have to personalize the matter.

Moreover, I don't think you can appropriately draw that conclusion from the comments I've made on your posts, which have generally been on national security matters, or even on other Conspirators' posts. It would be fair to characterize me as someone who generally supports the Administration's national security policies; how you get from that to "realiz[ing] that the Administration can do no wrong in [my] view" is beyond me.
11.12.2006 1:07pm
OrinKerr:
A.S.,

Would you mind sending me an e-mail? Let's chat.
11.12.2006 1:28pm
jrose:
A.S.,

Over many posts, JaO has summarized the various competing (actual) bills.
11.12.2006 2:05pm
dick thompson (mail):
Orin,

What other options are there to capture this kind of intelligence without tipping off the enemy about it? How do you plan on finding out who is a terrorist potential, then go make up all the paperwork, get the attorney general in person to sign it and then carry it to the FISA judge and get it signed, all this before you listen to a word or even look at a transcription - and it all has to be done firs according to what the LLL dems demand if you do it all under FISA.
11.12.2006 8:28pm
OrinKerr:
Dick,

There are lots of options, including exlicitly authorizing the program and having no judicial review. It's just that the Specter bill does a lot more than explicitly authorize the program.
11.12.2006 10:48pm
dick thompson (mail):
Orin,

That was the question. Not are there lots of options, but what are the options. Of course explicitly authorizing the program with no judicial review is one. What others?

The other problem I have is that assume you do vacuum up all these emails and phone calls. Where are you going to get the people to analyze them? Nobody else would be able to do anything but that. The program as defined was that calls to areas with terrorists and from terrorists would be checked and dropped if the code words weren't present. If they were then the tapping would ensue and the determination to follow up made. That does not sound even remotely like "vacuuming up all the emails and phone calls." The other part is that those calls not followed up were erased.

When you consider that you have a presently disbarred lawyer who was passing on messages from a terrorist to his followers which resulted in the attacks by said followers and you have the reports from the Brits about all the people they are tapping because of terrorist activity, do you favor any sort of tapping here and how would you make it likely to be worth doing. If you have to go the FISA way, the phones are gone before the right to tap is in place and they are on another phone and number. With the changes in technology how do you remotely think legislation will keep up with the changes so that the administration in power, whether it is the Clintons with Echelon or Bush with the NSA, so that the administration can fulfill its primary mission which is to protect and defend the country.
11.13.2006 5:41pm