Senate Approves Bush’s Plan For FISA OverhaulAugust 4, 2007
OK, I’ve spent part of the afternoon trying to get a handle on what this whole thing means. I used memeorandum to comb blogs on the right and left to get some reaction and a little insight, so if you want to catch up, here’s the tab. Still, after all that, I’m not going to pretend to be an expert on this so I’ll just offer my thoughts on a few things I found while searching.
I’ve got to say though that my initial reaction was that the Dems in the Senate seemed to caved into Bush on this, and all he had to do was to threaten to delay their vacation, apparently. That fact alone is pretty disturbing. My Dem Senator here in Minnesota, Amy Klobushar, even voted for it.
Anyway, the first thing I want to mention is what seems to be the underlying rationale for a lot of people. First, from the Lieberman:
“We’re at war. The enemy wants to attack us,” Lieberman said during the Senate debate. “This is not the time to strive for legislative perfection.”
And Capt. Ed:
We are at war, and at war with a foe that operates exclusively through infiltration and espionage.
I know I get ridiculed for constantly stating this, but at war with who exactly? Terror? It’s this vagueness and sense of perpetuity that has always made me uneasy. If you’re taking actions that are going to go right at the heart of civil liberties in the context of being “at war”, well, it would help to know what or who we are at war against. Think about something: Would these provisions cease when the “war” is over? Of course not. This is a different type of “war”, one that is only over when people stop saying we’re “at war”. So, if one is to support giving the government this kind of broad power over surveillance, don’t say you support it because we’re “at war”. Instead, say you support it because you understand that we need it in order to more effectively deal with the “nature of threats in the 21st century”, or something like that. Let’s not kid ourselves here; there has always been and will always be a terrorist threat, so in a matter of speaking we have been and will always be “at war” against terrorism. That is the context in which we should be deciding to take bold steps in giving the executive this kind of power.
Look, I fully understand that intelligence is critical to stopping terrorist plots and attacks before they occur. I don’t like to envision a situation where the DNI has a lead on someone and cannot act on it because of a flaw in the system. And I am certainly more comfortable with the rationale behind this than, say, invading a country in the Middle East and hoping that will make us safer. But we have to be very careful to do this in a way that won’t result in abuse and eventually lead to a breakdown in basic civil liberties. We also have to make sure that there are checks and balances in our government. So when Lieberman said “This is not the time to strive for legislative perfection”, I gotta say that my jaw dropped a little.
So, what does the bill look like, and how careful were they? Are there checks and balances worked in here, or did they just hand over a black check?
A bill that House Democrats put forward today does not require the National Security Agency to seek warrants for surveillance of persons inside the United States — only that the Attorney General will issue “guidelines” as to how collecting the communications of U.S. persons should operate.
Attorney General. You mean this guy?
Back to Capt. Ed:
The second distinction may present more trouble. In the TSP program as explained repeatedly by the Bush administration, they monitored communications that had one terminus outside of the US — either someone here calling abroad or receiving a call from abroad. The NSA and the White House assured us that those calls only got monitored without warrants when they had some evidence that terrorist suspects were involved, usually because of a phone number found by previous investigations and intelligence.
This bill does not include that limitation. It gives the NSA carte blanche to monitor all international communications going in and out of the US regardless of whether any probable cause, or any cause, exists to suspect that the communication relates to terrorism. It’s a subtle but significant expansion of the NSA’s ability to operate without judicial oversight.
The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA’s requirements any and all “surveillance directed at a person reasonably believed to be located outside of the United States.”
For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is “directed” be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense “directed” both at persons overseas and at persons in the U.S.
The key term, obviously, is “directed at.” The bill includes no definition of it.
This doesn’t sound like they were careful. This sounds like they gave a relatively small group the ability to decide who is a “terrorist” and who might be suspected to be talking to one. In general, it appears that we are relying on these people to act in “good faith” without having the ability to have any oversight or knowledge of what the heck they’re really doing.
Maybe I’m wrong and I’m concerned over nothing. Maybe I just don’t understand. But maybe this really is taking us into uncharted waters here, and we’ve basically given the administration the ability to spy on whoever they want as long as they can say it’s in the name of national security.
I’ll conclude with one more thought from Michael P.F. van der Galiën:
One should also not forget that the one’s who advocate expanding the power of the goverment in this regard, are the one’s who made it their political goal to expand the power of the executive significantly. To them, terrorism is not the reason, it is merely an excuse. They know that if they play the terrorism card, they might be able to convince a majority of the American people that the power of the government / government agencies should be expanded.
Something to think about.