Senate Approves Bush’s Plan For FISA Overhaul

August 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? 

From TPMmuckraker:

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.

From Balkinization:

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.


  1. Great research on this post. Trying to find out the logic or lack thereof for the passage of this bill is not easy.

    The passing of this bill baffles me. I don’t think it’s a cut and dry reason for the Democrats to go long with this. If they did it to get on with their vacations then shame on them, if they did it to get support for their September vote on withdrawal from Iraq then maybe they can save themselves. .

    However, a court secretly orders Bush to stop because it violates our Constitutional rights but Bush continues. Boehner exposes it on national TV. Congress authorizes what a court says is illegal. Is Congress not also in violation of the court order?

    The bill is schedule to expire in 6 months but I doubt it will go away. The war on “terror” is so broad a statement that anything can be construed as terror to continue this violation of the Constitution.

  2. What a bunch of hypocritical assholes the Democrats are. They bitch and scream that Bush is violating the constitution (which was a red herring to begin with) and then they turn around and give him the exact same power that they were bitching about to begin with.

    This congress is totally out of control. From cutting off debate in the house the other night when they lose a vote to this little escapade, the Democrats have shown that they are complete phonies. They make up scandals out of thin air and have turned the legislative branch of government into the investigative branch. These people aren’t even worthy of serving as dog catchers.

    ~Thank you for your time and the use of your blog.


  3. Meet the Democratic enemies of the Constitution:

    Sen. Evan Bayh (IN)
    Sen. Tom Carper (DE)
    Sen. Bob Casey (PA)
    Sen. Kent Conrad (ND)
    Sen. Dianne Feinstein (CA)
    Sen. Daniel Inouye (HI)
    Sen. Amy Klobuchar (MN)
    Sen. Mary Landrieu (LA)
    Sen. Blanche Lincoln (AR)
    Sen. Claire McCaskill (MO)
    Sen. Barbara Mikulski (MD)
    Sen. Bill Nelson (FL)
    Sen. Ben Nelson (NE)
    Sen. Mark Pryor (AR)
    Sen. Ken Salazar (CO)
    Sen. Jim Webb (VA)

    Defeat them all next time they’re up for reelection.

  4. Why, why, why?..This administration’s abuse of power is just sickening.

  5. Off topic, but did you hear that Political Pale Horse is a parody blog? I always gave them the benefit of the doubt but it’s been proven. What a shocker!

  6. The bill is schedule to expire in 6 months but I doubt it will go away. The war on “terror” is so broad a statement that anything can be construed as terror to continue this violation of the Constitution.
    Exactly NYTEXAN!

    I want my country back!!

  7. I want my country back too!!!…

    ….from the socialist, leftist, totalitarian Democrats!

  8. After reading in CQ.com (Congressional Quarterly – a non-partisan publication) about how the House Democrats stole the vote from a Republican victory in the wee hours of the morning, I’m just flabbergasted on just how low these scum have sunk in just 6 months.

    I’ve never seen anything as despicable as these Democrats in congress.

    *I really, really, really want my country back!

  9. Sage- Does the idea of giving the govenment the ability to eavesdrop on anyone they choose without a warrant bother you in the slightest?

  10. Chen- Yes, it does. But what bothers me even more is that the Democrats made a huge political issue out of this last year, then they go ahead and give the executive branch even more authority then they were bitching about to begin with.

    I can’t keep up with the hypocrisy- and I’m sure you would agree.

    My head is spinning.

  11. Yea I don’t get it either. Perhaps they know that this has a sunset date in 6 months and they want to see if Bush is gonna abuse his new toy. Although I’m not quite sure how they’d know about it if he did at this point.

    Either that, or they’re actually falling for the “If we get hit again, it’s YOUR fault if we don’t pass this” BS. If that’s the case then that really is pathetic.

  12. […] you want to read more on this topic see the entry at ChenZhen’s Chamber with its links to reactions on the Senate vote from both the left and the […]

  13. This is just another nail on the coffin. Nothing less, nothing more.

  14. You are absolutely right. In it something is also to me it seems it is good thought. I agree with you.

    By the way, what do you think about this icons site?

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