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What's in the FISA Bill?
From the Bush administration's perspective, the House proposal to amend the Foreign Intelligence Surveillance Act goes way too far to restrict the intelligence community from collecting crucial information on terrorists. Yet looking at the bill, it's hard to see what the White House's objections could be.
For one thing, as TPMmuckraker reported earlier today, under the bill, the primary role for the FISA Court is in issuing generalized surveillance warrants for "persons reasonably believed to be outside the United States." Those warrants don't have to name their targets, nor locate where the surveillance will take place if the attorney general shows that the surveillance methods used will mostly exclude U.S. citizens and residents. Such warrants will be approved, according to section 105(c)(1)(C), if the FISA judge determines that collecting "foreign intelligence information" is merely a "significant purpose" of the AG's request.
What happens to U.S. persons who may be tapped? There isn't any requirement for a probable-cause-derived warrant to continue surveillance on them. Instead, the attorney general would only have to create "guidelines" for surveillance on people in the U.S. as the result of one of the aforementioned warrants. Every 60 days the Justice Department's inspector general would have to report to the FISA Court and to the Congressional intelligence committees on compliance -- including handing over a list of names of those U.S. citizens and residents under surveillance during that time period. Nothing in the bill indicates any power for either the court or Congress to do anything about any American caught in the surveillance web.
Additionally, for reasons that aren't explained, the attorney general gets one last dalliance with warrantless surveillance: he can authorize surveillance for up to 15 days after the bill's passage if he says there's an "emergency situation," and the court can bless an extension of not longer than another 30 days.
The Bush administration doesn't get everything it wants under this bill. There is still, after all, some role for the FISA Court. There's no post-facto approval of FISA warrants, as Admiral McConnell wanted. And there's no retroactive liability from lawsuits brought against telecommunications companies who complied with warrantless NSA surveillance from 2001 to 2006. But on most issues, the House bill provides a great deal of flexibility to the president, who today said that "so far the Democrats in Congress have not drafted a bill I can sign. We've worked hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk."
Update: See Marty Lederman and Jack Balkin for more.
Josh
Zachary
Were the Patriot Act and the Military Commissions Act pre-summer break bills as well? It's one thing to use the vacation leverage to pass domestic spending bills but quite another on national security/civil liberties issues. The House bill seems ok except for no redress/review of American names once they are in the system (sounds like the ever useful "no fly list" problems).
August 3, 2007 4:55 PM | Reply | Permalink
As I recall it, the Patriot Act was passed so fast after 9/11, it almost made your head spin.
I thought at the time they must have had some of it ready... just in case they needed it. It just happened way too fast. Too little deliberation. And bam! It was law!
Correct me if I'm wrong here.
August 3, 2007 5:02 PM | Reply | Permalink
This is all smoke and mirrors anyway. As Glenn Greenwald has noted, both online and in his first book, FISA has been amended before. It has been amended in accordance with the Bush Administration's wishes AFTER 9/11. This isn't about keeping Americans safe (what, all of the sudden, almost 6 years after 9/11, in the middle of August, Bush realizes FISA is holding him back? That is absurd). It's not about FISA being "outdated". It's about parts of his pet program being illegal.
Bush only gets desperate about this stuff when the legal system might start to breathe down his neck. The last time he was this crazy about a bill passage was the hideous MCA. I am glad to see this Congress not bending over like the last one, though the fact they entertained this at all is dissapointing.
August 3, 2007 5:04 PM | Reply | Permalink
Why are we parsing the content of this move by Bush as anything other than a blatant act of Facism to deride the Democrats as "softees" on terrorism that King George has potentially manifest more of worldwide...while he steals (by way of "blackmailing" the Dems) into giving him more power to abuse. The end result will continue to be the eroding of this country's last vistages of freedom and has laid the groundwork for the country to move to a complete "police SS state", where the citizens can be detained, apprehended under the "new rules' and eventually sent to the detainee camps...IT IS HAPPENING, IT IS REAL, and the Dems are part of the problem.
WAKE UP AMERICA... the wolves are at the door and they are ravenous!!
SPEAK OUT, DEFEND, and protect yourselves at all costs...the survival of the Nation is at stake!
August 3, 2007 5:15 PM | Reply | Permalink
Fourth Branch, time to stand up!
Congress, time to listen! Take a firm stand here!!!
August 3, 2007 5:19 PM | Reply | Permalink
So, Congress passes a law and Bush vetoes it. What's the downside?
FISA continues with the exception of what the court found to be unconstitutional. When a FISA judge won't sign anything put under their nose, you know it's rotten.
I'm just surprised that Bush didn't ratchet up the 'threat level' color code a notch, just to make everyone piss themselves.
And by the way, just what are the rest of those super secret 'terrorist surveillance programs' we can't know anything about? Certainly nothing to be concerned about there.
August 3, 2007 5:22 PM | Reply | Permalink
Good time to start impeachment hearings.
August 3, 2007 5:25 PM | Reply | Permalink
It would be a mistake to so much as let Alfredo Gonzalez make copies of this bill to hand out to anyone.
August 3, 2007 5:35 PM | Reply | Permalink
Bush is a pathological liar...he is trying to again change the Constitution and get permission to spy on American citizens....will our country and our Constitution survive these madmen....?
August 3, 2007 6:37 PM | Reply | Permalink
The Bush junta has been spying on us since BEFORE 9/11. Wake up folks.
Even FISA is unconstitutional (according to Jonathon Turley) because it violates the Constitution.
August 3, 2007 8:25 PM | Reply | Permalink
Vote them all out! We the people have lost control of our country. We gave our rights away without a fight. Have all those men and women who have given their lives to defend the freedoms we have always enjoyed died for this? Are we to follow in the footsteps of the Romans? It is time to rid ourselves of this political cancer called the Republican and Democrat party.
August 3, 2007 8:45 PM | Reply | Permalink
Someone mentioned in another thread that thismay be Bush's way of avoiding an impeachment charge that would actually stick. His FISA violations, unless the program gets a retro-active change, may be the thing they know could get the POTUS in any impeachment that might come up...
Food for thought...
August 4, 2007 12:05 AM | Reply | Permalink
If a picture tells a thousand stories that one is certainly representative of the Idiot in chief.
August 4, 2007 3:34 AM | Reply | Permalink
Maybe Bush really did us a rare favor this time. This bill was terrible - little more than a back-door way to allow surveillance on US citizens with no real judicial oversight. The previous FISA was bad, but largely because the FISA courts were so accommodating. This bill would have stripped the FISA courts of any real authority. Maybe now the Democrats in Congress will get some cojones and stand up to protect our freedom?
August 4, 2007 12:21 PM | Reply | Permalink
As I recall it, the Patriot Act was passed so fast after 9/11, it almost made your head spin.
I thought at the time they must have had some of it ready... just in case they needed it. It just happened way too fast. Too little deliberation. And bam! It was law!
Correct me if I'm wrong here.
If I recall correctly, a lot of the "Patriot Act" consisted of things the DoJ wanted under the Clinton administration, under the guise of combatting "money laundering" and "organized crime", but had previously been rejected.
August 4, 2007 6:08 PM | Reply | Permalink
blockquote tags not working... sorry
August 4, 2007 6:10 PM | Reply | Permalink
Hey! How come their bills are never unconstitutional?
August 5, 2007 9:56 AM | Reply | Permalink
Their's aren't when they are.
Ours are when they aren't
August 5, 2007 9:58 AM | Reply | Permalink
I think Congress (Mitch McConnell, really) did the right thing by allowing Protect America Act, while giving themselves add'l 6 months to think about the FISA!
http://osi-speaks.blogspot.com/2007/08/congress-passes-temporary-fisa-act-to.html#links
August 5, 2007 1:46 PM | Reply | Permalink
what another great step toward a dictatorship (its only a few more so keep your fingers crossed!) so now the CIA, FBI (aka SS) have unrestricted access to compile massive lists of terrorists. just as in any era of political extremism, you can rest assured the bush regime will consider any who oppose their imperalist decrees as a terrorist. the fbi has been primarily used to target radical groups (such as the black panther party) in order to prevent any political opposition. is this free speech? is this a democracy? being outspoken against the war, or the government, is now dangerous. and what do you think they will do with these lists? keep them harmlessly on cheney's desk all day? no, but in case you didnt know there are over 600 prison camps within the united states - the biggest being in alaska and able to hold up to 2 million people. its to be used only in "event of emergency" so they claim. if there definition of "emergency" is anywhere as shady as their definition of "terrorist", then we are in for trouble
August 6, 2007 5:31 AM | Reply | Permalink