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Today's Must Read
Even as Congress seeks to determine whether Alberto Gonzales lied under oath about the administration's warrantless wiretapping program, the Democrats have been negotiating with the administration to update the surveillance under the Foreign Intelligence Surveillance Act (FISA).
As The Los Angeles Times reports this morning, the alleged need for such a fix was precipitated by a FISA court judge's ruling, which restricted the ability of the National Security Agency to collect information on multiple surveillance targets under a single warrant. Additionally, the FISA Court apparently balked at allowing the NSA to collect intelligence on persons whose location inside or outside the U.S. is unknown. Indeed, there's a lot that isn't clear about the ruling -- the FISA Court meets in secret -- but the Bush administration has apparently persuaded congressional leaders that it creates a cumbersome standard for surveillance, given the extent of the threat from terrorism.
Back in January, remember, the administration brought its warrantless wiretapping program -- known as the Terrorist Surveillance Program, which monitors communications between persons in the U.S. and "known" terrorists abroad -- under the auspices of FISA, making it no longer warrantless.
The administration's first proposal, apparently, was to take the power to authorize NSA surveillance of foreign targets away from the FISA court and give it to the attorney general . The Democrats, unsurprisingly, said no -- noting that it's generally a bad idea, but especially a bad idea with this attorney general. The administration came back late yesterday with a proposal that the director of national intelligence would have to sign off too. Again, the Democrats said no.
And here's the Dem proposal, as described by The Washington Post this morning:
Congressional Democrats outlined a temporary plan yesterday that would expand the government's authority to conduct electronic surveillance of overseas communications in search of terrorists.The proposal, according to House and Senate Democrats, would permit a secret court to issue broad orders approving eavesdropping of communications involving suspects overseas and other people, who may be in the United States. To issue an order, the court would not need to identify a particular target overseas, but it would have to determine that those being targeted are "likely," in fact, overseas.
If a foreign target's communications to a person inside the United States reaches a "significant" number, then an court order based on probable cause would be required. It is unclear how "significant" would be defined.
This would seem to lower the bar in terms of the evidence needed to initiate surveillance. The FISA court has a probable cause standard to initiate surveillance of a member of Al Qaeda or some affiliated group. Apparently the Democrats' plan would initially lower that bar -- allowing the targeting of "suspects" -- but then require probable cause once the number of wiretaps became "significant," whatever that means.
Hopefully clarity will enter into whatever ultimate compromise bill emerges. Negotiators are racing to finish and vote on a proposal before the congressional August recess begins Monday. Unless the bill defines critical terms like "significant" and specifies what standard the government will have to meet to begin surveillance on a given target, the compromise will either snarl in congress, depriving the NSA of a tool it says it urgently needs, or protections on Americans' civil liberties will erode even further. Pick your poison.
Comments (24)
Bearpaw wrote on August 2, 2007 10:44 AM:"Significant": One or more.
Anything else is a travesty. It's essentially saying that a single person doesn't have the same rights as they would if they were part of a group.
Slim Pickins wrote on August 2, 2007 10:54 AM:Please! Why are they even talking about this? It's like catching a burglar coming out of your house with your television in his arms, and then stopping him to get his opinion on your landscape design.
No FISA revision!
No funding!
Nothing.
Congress, get answers to your questions! Do your job.
Listening to Jebnnings hearing, it's a circus of no-answers and stonewalling. How long will this go on?
David Dobson wrote on August 2, 2007 10:57 AM:US citizens should have the full protection of "probable cause." Any one else, I can't say I care. I don't understand why the fact that a "sigal" passes through an electronic box on US soil matters. I do not however, want my government to have the right record ALL "signals" and then not be subjected to oversight when it comes to combing through those.
M M wrote on August 2, 2007 10:59 AM:I'm all for tracking the bad guys but this administration has proven why oversight and auditing needs to remain with FISA (and not the AG or DNI).
Anonymous wrote on August 2, 2007 11:16 AM:Ok, folks, time to guess President Bush's nickname for Mr. Jennings... I propose "Pugsley"... Who's with me?
jonerik wrote on August 2, 2007 11:20 AM:I can't imagine lowering the bar for a FISA warrant more than it already is. It requires "probable cause" sure, but here is what it is "probable cause" of:
"probable cause to believe that—
"(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
"(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;"
I'm disgusted with the Democrats for even talking about this. I'd be very suspicious of the Bush administration claiming anything about a secret FISA court ruling. Ashcroft appealed a prior FISA Court refusal to issue a warrant and the FISA Court of Appeals reversed it. So why doesn't Bush appeal if this ruling is so wrong.
The main thing FISA seems to be geared to preventing is the protection of First Amendment rights of "US persons" meaning Bush and other presidents or their minions can't wiretap people and blackmail them like J. Edgar Hoover did.
Doc Rock wrote on August 2, 2007 11:21 AM:Bush calls SCHIPS a 'slippery slope', but these attempts to "reform" FISA are the real slippery slope to subverting our constitutionally protected rights. FISA is just fine the way it is!
thomas wrote on August 2, 2007 11:27 AM:Repeat after me.
Footsie wrote on August 2, 2007 11:29 AM:"Those Who Would Sacrifice Liberty for Security Deserve Neither."
Franklin had it right over 200 years ago. Why are we forgetting this now.
Why are the Dems negotiating *anything* with this administration? He's just going to screw it up. Eighteen months isn't so long to wait; they should just block anything Bush proposes and take it up when the new admin comes to town. My current nightmare is that he's going to want to get involved with the Minneapolis disaster, turning it into another Katrina.
Dem message to Bush: Please stay out of it - whatever "it" is. The answer to any of your requests is "No."
SocraticGadfly wrote on August 2, 2007 11:44 AM:COMPROMISE bill?
What we need is NO bill. It's ridiculous how much of the store Congressional Dems are already ready to give away.
Mark wrote on August 2, 2007 11:55 AM:NO bill is right..the ReThuglicans CAN'T risk any oversight because they've been spying on all political enemies, including US citizens and interest groups. It's the same thing Reagan did as Governer of California, and Nixon did as both Veep and President. It's the holy grail of Rovedom.. use US spy agencies to dig into any group from Greenpeace to Planned Parenthood without a reason. It's a prime propaganda source.
J. Thomason wrote on August 2, 2007 12:33 PM:Judicial oversite has already been eroded around intrusions pursuant to National Security Letters by way of the Patriot Act. This is a continued effort to bring "police court" standards where one individual acts as prosecutor and judge into probable cause determinations.
The movement is the logical precursor of a "police state." And FISA with its Star Chamberesque abandonment of due process notice standards was the first breach in the Constitutional protections securing the right of individual confrontation of prosecutorial impositions.
judyinnm wrote on August 2, 2007 12:44 PM:But, the terrorists "hate us for our freedoms" - so we must continue to appease them, by taking away those freedoms. That way they won't have any reason to attack us, again. Logical....
kentuck wrote on August 2, 2007 12:52 PM:Basically, if the Congress says that it is OK for Bush to eavsdrop now, how can they turn around and say that it was illegal for him to do so before?? That is the corner that Bush is trying to get the Democrats herded into. Unfortunately, I have little faith in the intelligence or political savvy of the Democratic Party and they may fall right into this little trap?
Mark F. wrote on August 2, 2007 12:54 PM:Slowly, slowly the Bush administration, with the help of feckless congressional Democrats, chips away at the Bill of Rights. Decay never sleeps. Carelessness and a lack of clarity about who we are are the enemy.
An old Zen proverb, paraphrased: "The wise person sees horns over the horizon and knows there is an ox."
Buckaroobanzai wrote on August 2, 2007 1:03 PM:What drugs are the Dems taking? This is no compromise, its a surrender.
If you give this administration the right to issue blanket warrants and don't restrict the jurisdiction they will drive a truck through this loophole and put the entire country under a warrant.
Isn't strange...everytime the courts try to reign in this activity the Congress grovels before Bush and changes the law.
This is not the kind of legislation that should be rushed before a vacation. The Dems should just put it on hold until they have spoken with their constituents.
More importantly they should this legislation as the opportunity have a public debate about the effectiveness of the Bush anti-terror policy.
Nell wrote on August 2, 2007 1:11 PM:For those who think there's any chance lobbying your members of Congress would make a difference, the ACLU's excellent 'Myths and Facts on FISA' addresses each of the administration's talking points:
http://www.aclu.org/safefree/nsaspying/31144res20070731.html
If the Charlie Brown Democratic leadership proves just as deaf to constituent pressure as in the last six times they were rolled into granting yet more unchecked power to an out-of-control regime in the name of "national security", then at the very minimum they have to insist on the 60-day sunset provision some versions of the bill require.
The best position is a hard no -- the regime needs to prove it's obeying the current law before any discussion of changes. But even to the most easily spooked politician, there should be absolutely no justification for giving away more power permanently.
KWM wrote on August 2, 2007 1:12 PM:Could the urgency be related to the fact that the Senate Judiciary Committee is closing in on the real scope of the 'Program"?....
kentuck wrote on August 2, 2007 1:22 PM:And they complain about the Iraqi government going on vacation for the whole month of August? It is much more dangerous for our Congress to go on vacation for August than it is for the Iraqis. They are fearful that the country might be attacked while on vacation and Bush would say it is "their" fault. They must tread very carefully on this...
StephenH wrote on August 2, 2007 3:29 PM:It seems obvious that the administration has been using the NSA to conduct surveilance on American citizens for reasons other than for national security - otherwise they would be able to say who they are spying on and where they are. This was the FISA court's way of sounding the alarm. The Congress should not be making it easier for Bush to break the law. They should heed the warning from the court and make it harder for him to spy on American citizens.
WhatdHesay wrote on August 2, 2007 4:43 PM:A lot of Democrats on this forum would throw the baby out with the bath water. All or nothing. Either or. As wack as the right wingnuts only on the other side. Its pathetic to read the drivel. Sometimes I wonder if their not posting from the secret bunker.
Anonymous wrote on August 2, 2007 5:08 PM:Get this... the FISA courtroom is on the top floor of the main DoJ building. Is that where the AG's office is, too?
Bonnie wrote on August 2, 2007 7:27 PM:I think Congress should find out who Bush has been spying on before they start letting Bush spy on any body. They act like this man is trustworthy, which he is not.
dircha wrote on August 2, 2007 11:09 PM:It's like signing a deal with the school bully who has been beating you up and stealing your lunch money, stating that you shall henceforth permit him to do so only on Mondays, Tuesdays, and Fridays.
No. No compromise. Withdraw our forces from the middle east. Defund the military industrial complex. Secure our streets and our borders first.
If Bill Kristol and Dick Cheney want to start their own private mercenary force to spread imperialism by the sword, let them leave the U.S. and do so with their own resources, but never again in our name, with our hard earned tax money, exploiting our service men and women.