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August 11, 2007


Publius, off topic, but I'm curious what you think of this.

Tancredo was 4th--Brownback was 3rd. Not that that's any better.

I've been meaning to weigh in, but I think you and Lederman hit about all the points worth hitting. As I understand, to the extent you two are disagreeing, you're disagreeing about how much the "optional"-ness matters.

On the one hand, I agree with him that 105A is where the action is (even the civil/crim liability stuff flows from that). I also agree that those procedures are as toothless as it can be.

But you had a good response I think that the optional-ness is not being reported in the media and could potentially alter the narrative.

This supports (and I wished I had seen this then) what i said in my first FISA post -- i.e., the bill gives him unfettered authority and we should all debate THAT issue and stop pretending like this one has teeth. In other words, let's call a spade a spade.

The next point I'm eventually going to make is that the Dems (unlike in habeas) don't have to actually pass anything. They can block it with a filibuster. It's easier to block than enact. That's what's so maddening. But, I think the alleged al Qaeda chattering that was being reported spooked them. Now if you want to get really tinfoil hat theory...

Thanks for the link.

I guess what it comes down to for me re: the FISA bill is this: whatever the law says, I want there to be no question that it is THE controlling authority. I want there to be no leeway for the president to authorize surveillance activities on his on authority, in secret. And this new bill doesn't do that. It muddies the waters.

My top priority would be setting up a legislative framework that is unquestionably exclusive in nature. The various oversight mechanisms can then be made more or less rigorous, but at least we'll know that they are controlling and have to be followed.

It's pretty clear that reporters don't understand how this bill undermines FISA's claims to exclusivity, and I wager that most members of Congress don't get this either.

Just to be clear -- if that's your main concern (and it's a good one), shouldn't you object just as much to old FISA as you do new FISA? for instance, as i read "electronic surveillance," it's basically written in a way to protect americans (home and abroad) and guard against domestic abuse. but even in the old FISA excluded lots of stuff not involving amurk'ns. are you including this subset in your exclusivity provision?

Or are you saying all the stuff carved out affecting americans/domestic surveillance should come under an exclusivity provision?

Let me know if that question doesn't make sense

Your question makes perfect sense.

Obviously, the line has to be drawn somewhere. Old FISA attempted to draw the line, essentially, so that anything involving Americans, particularly anything involving Americans here in the U.S., fell within the statutory side of things. Purely foreign stuff was left outside of the statutory framework. That line could perhaps use some tweeking, but I think it's essentially the right way to do it.

The new law draws the line in a way that puts too much surveillance involving Americans on the unregulated side of the line (at least in my opinion). I think that surveillance involving Americans should be done according to statute, not left to the executive's discretion.

I very much appreciate the efforts of you lawyers (and people-who-can-wade-through-laws-as-nimbly-as-lawyers) in helping the rest of us figure out what this means, but I'm a big-picture kind of gal.

And I'm most appreciative to Marty Lederman, whose ability to keep his eye on the ball is on display in the most important passage of today's FISA post:

Obviously, what happened is that the Democratic leadership decided not to insist that Democrats could vote only to allow warrantless foreign-to-foreign surveillance. Presumably, the Democrats could have simply voted in favor of the Democratic bill, giving the Administration what it professed to need, and sent that bill to the President for his veto. But the leadership chose not to instruct their caucus to do so. And no one has yet quite uncovered the story of why Speaker Pelosi and crew did not simply insist on that course of action.

The comments are full of excellent lawyer weediness.

[Emphasis in original.]

"(2) For now at least, the full-text version of the Atlantic Monthly pieces on Gerson and Rove are up at the Politico."

There are links at The Politico to the behind-the-subscription wall pieces, as inaccessible as ever, actually.

I mention this in case you'd like to add an update, thus preventing people from wasting time looking for something that isn't there.

(I remain deeply cranky with The Atlantic, who continue to refuse to offer cheap electronic access, while only offering online reading with a subscription to the dead trees edition; why we should all pay an extra umpty dollars for a fancy printed edition that some of us don't have room to store, and have no interest in paying for, they don't explain.)

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