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.