Today's Washington Post reports that the Bush Administration has asked Congress for greater authority to conduct surveillance of foreign citizens and international communications.
Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. The White House proposes expanding potential targets to include non-citizens believed to possess, transmit or receive important foreign intelligence information, as well as those engaged in the United States in activities related to the purchase or development of weapons of mass destruction.
The proposed revisions to FISA would also allow the government to keep information obtained "unintentionally," unrelated to the purpose of the surveillance, if it "contains significant foreign intelligence." Currently such information is destroyed unless it indicates threat of death or serious bodily harm.
And they provide for compelling telecommunications companies and e-mail providers to cooperate with investigations while protecting them from being sued by their subscribers. The legal protection would be applied retroactively to those companies that cooperated with the government after the Sept. 11, 2001, attacks.
Lyle Denniston's analysis focuses on the court-stripping provisions, similar to those extant in Congress last year. These provisions could bar ordinary federal courts from hearing challenges to foreign-intelligence eavesdropping, shifting the venue to the secret Foreign Intelligence Surveillance Courts. (In one such challenge, now pending on appeal before the Sixth Circuit, the government's so-called "Terrorist Surveillance Program" was held by a district court to be illegal and unconstitutional.) The legislation also would immunize telecom firms from lawsuits such as several now pending against them.
The draft also includes fundamental changes to FISA's definitions section, which drives the whole statute and determines its scope. Similar changes failed to pass Congress last year, although they did pass the Republican-controlled House. Orin Kerr analyzed some of that definitions language here last year.
Administration must realize this.
Sounds like a "Democrats-love-terrorists" ploy to me,
perhaps to move public attention away from other...
successes... that are in the news lately.
EnglandAmerica can't have secret courts with secret evidence then thePuritansterrorists will have won, it's that simple.Hypothetically, if crime-associated people read your blog, or shop at your online store, or walk past a telephone pole in your neighborhood and stop to read stapled-up "lost cat" posters, does that tar every other person who passes the same spot with the same brush?
I'm too scared to show any interest in tne answers.
The story includes some skeptical congressional reaction, including that from Sen. Specter. After carrying the administration's water last year in a failed effort to gut FISA, Specter now reverts to his favored public persona as a watchdog.
In any event, it is difficult to imagine the current Congress adopting this draft. Some of these proposals were contained in Rep. Wilson's bill that narrowly passed the House last year. The Times says the White House "did not endorse" it, but DOJ and intelligence-agency witnesses testified openly and favorably about the "modernization" proposals. Some of those same provisions were also included last year in Specter's bill, which he negotiated with Bush and Cheney.
What is different politically today, aside from the obvious change of partisan control of Congress, is that there no longer is a political case to be made for urgency as was claimed last year before the elections. The bills last year also would have legalized the "Terrorist Surveillance Program," which AG Gonzales now says has been discontinued because the FISC court has approved surveillance under existing law that meets the government's needs. Another factor right now, of course, is that Gonzales is regarded as a dead man walking.
It's about time!
Specific and particular instances of misuse of authority by the administration would be helpful in evaluating your generalization.
Text searches are not a substitute for reading.
If you would read Denniston's post, you would see how laughably authoritarian the proposed legislation appears to be.
As for the date of passage of FISA, I have never been under the misimpression that our government was completely virtuous before January 2001.
Recent events ought to be compelling a revision of FISA in the opposite direction, towards less secrecy and greater reviewability. Perhaps this presumably dead-on-arrival proposal by the White House is a clever effort to frame the debate to avoid such a revision.