FISA Kabuki

by publius

Of the many problems surrounding the new FISA bill (soon to be law), the most frustrating one is that we (the public) didn’t really have a chance to debate it. And I mean this in two different respects. First, and most obviously, Congress railroaded the bill through too quickly for meaningful debate. But more importantly, the terms of the debate were fundamentally dishonest. I wish that, for once, we could debate these proposals honestly and on the actual merits.

To be blunt, the issue is whether we want the executive branch to have virtually unlimited and unchecked authority to conduct electronic surveillance for anti-terrorism purposes. Maybe we do, maybe we don’t. I vote Nay, but it’s not obvious that I’m right. But we never debated this question. Instead, we endured an elaborate legislative Kabuki that resulted in a bill claiming to create meaningful checks where no such checks exist.

To see a clearer example of what I’m talking about, look back at the tax cut debate of 2001 and 2003. I disagreed with those tax cuts, but there are smart people who believe in good faith that cutting taxes for wealthier people and capital has positive effects (either from a welfare or fairness perspective). Fine. I disagree with that view, but we can debate it, examine each other’s assumptions, discuss it on talk shows, etc.

But that’s not the debate we had. Instead, Bush (and others) advertised the tax cuts as populist measures that would go primarily to the middle class or those “at the bottom,” even though the revenues went overwhelmingly to the upper brackets. We didn’t have an honest debate about distribution because the debate was dressed up as something different. [Indeed, the fact that the debate was masked in this way arguably illustrates the political weakness of Bush’s position.]

Anyhoo, my point is that if you want tax cuts for the top margins, have the courage to come out and say it. Let’s have an open debate about it. Don’t hide it or dress it up as something it’s not.

Same deal with the current FISA “debate.” Before I explain why this debate was so dishonest, I’m going to briefly (very briefly) summarize some key points – call it FISA Reform for Dummies Written by a Big Dummy. (I’m relying heavily on non-Dummy Marty Lederman and Orin Kerr’s excellent postings).

FISA had a well-known hole -- where the rain gets in -- that needed to be fixed. Generally speaking, calls between two foreigners located outside of the United States don’t trigger FISA and Fourth Amendment requirements (on the latter, see Kerr – who I nominate for “Footnote of the Year” for both fns. 4 and 5 in that paper). However, for reasons relating to the Internets architecture, these calls or emails often get routed today through United States facilities, allowing the government to monitor them. Because the actual monitoring took place in the United States, FISA kicked in even though it shouldn’t in this situation. Thus, it’s a relic of the pre-packet-switched era. On this issue, FISA reform makes perfect sense and is uncontroversial.

The second issue is where things get hairy. As I understand it (and I welcome corrections), the problem relates to foreign communications involving unknown parties. On the Internets, it’s not always possible to know who’s at the other end of the line. This uncertainty has important legal implications. For instance, U.S.-to-U.S. communications trigger FISA protections. Likewise, non-U.S. to non-U.S. communications by foreigners generally don’t.

But what happens when a non-American in a foreign country is communicating with an unknown person (who could be an American or a person in the United State)? Does FISA kick in? Kerr and Lederman have speculated that the new legislation was inspired by a FISA judge who ruled that the surveillance regime as applied to unknown persons violated the law. In other words, the government was probably treating all (or many) unknown people as outside the scope of FISA, and the Court said no-no.

Thus, the administration needed a way to deal with surveillance involving an “unknown” person.

To be grossly general, the Democrats’ bill (pdf) would have authorized this type of surveillance for a limited period of time for persons “reasonably believed” to be outside of the United States. The Democratic bill, however, imposed meaningful oversight over this surveillance. In addition, and this is critical, the Democrats’ bill explicitly excluded (1) communications with a U.S. person inside the United States and (2) communications in which all participants are in the United States. Thus, the bill provided protections against domestic surveillance. For these types of calls, the government needed an old-fashioned warrant. (The Democratic bill’s carve-out provisions are in Sec. 105B(c)(1)(A).)

The White House bill (pdf) -- soon to be law -- took a much different approach. It just flatly withdrew all of this surveillance from the FISA regime. More specifically, the bill (Sec. 105A) states that any “surveillance directed at a person reasonably believed” to be outside the United States is completely exempt from FISA (i.e., it’s not considered “electronic surveillance”). Lederman spells all this out very well and in more detail, but the upshot is virtually anything -- including calls inside the United States or involving U.S. citizens -- is fair game. There are no similar carve-outs.

The White House bill includes some minimal hoops the government must first jump through, but to call them toothless is an insult to those without teeth. As those with children know, bare-gum chomps can still hurt the finger.

But here’s my point. It’s pretty clear that the administration wants the authority to conduct electronic surveillance basically anywhere and anytime for anti-terrorism purposes. Perhaps I’m naïve, but I think they’re motivated by good intentions. Regardless though, if you want this type of power, come out and say it. Let’s have a debate on that specific question.

Maybe privacy is quaint in the age of digitally-enabled terror. Maybe we need to rely on the political process (i.e., elections) for protection. I disagree with both views, but we should at least have that debate. Say what you will about John Yoo, he at least doesn’t pull punches. He wants a vast expansion of executive power and doesn’t try to dress it up in different clothes.

But "different clothes" is exactly what we got with the FISA debate. We got the White House spokesman pretending to affirm strong privacy and civil rights protections. We got a bunch of meaningless oversight procedures that do nothing but give the appearance of oversight. That’s not how democracy is supposed to work. More to the point, democracy can’t work when the terms of important debates are cloaked in dishonesty and Kabuki.

Comments

[Anon]

You have it exactly correct. The administration wanted, and received, a bill which legalizes its current practice of listening to anyone, anytime, anywhere.

Suppose the administration decides to listen to Nancy Pelosi's telephone calls. Well, when she makes them, no one knows if they are destined for a U.S. citizen or a foreign national. So there's no need to seek FISA approval.

There was never actually any "loophole" in the FISA act, which was last amended in 2001, even though Bush and his minions have repeatedly said in the past few days that the Act was written in 1978 and never updated. The Constitution says that the government shouldn't be searching without a warrant describing the particular places to be searched and signed by a judge (balance of powers, anyone?). Wide-ranging, "snoop on everything", executive-branch-only surveillance is clearly forbidden. If the U.S. government can't even identify the parties which it is surveilling, it's obviously an unconstitutional search.

If there's ever a full investigation of the surveillance activities of the past few years, it's pretty obvious at this point that the main thing the Bush administration has been listening in on has been the conversations of its political foes.

As for the Democrats... what can be said? Their cowardice is exceeded only by their cravenness, which is exceeded only by their pusillanimity. I think at this point that if George Bush, the least popular president in American history, the lamest lame duck ever, demanded that they sacrifice their children on the lawn of the Capitol and then kill themselves, they'd line up to do it. Is there ANYTHING that Democrats won't do for Bush?

[KCinDC]

In attempting to understand why people like Webb and Mikulski voted for this abomination, I'm coming to the conclusion that it's about the Republicans being much better than the Democrats at brinksmanship.

Let's assume for a moment that it is necessary to modify FISA in order to do some sort of spying that actually is required (ignoring for now why it has to be rushed through right now when the court ruling that triggered this was apparently back in March, and ignoring the fact that Bush believes he has the inherent power to do the spying regardless of what FISA says). Some Democrats, being "responsible", voted for both the White House's bill and the Democrats' bill, to ensure that something would pass that would allow the spying. Republicans, not surprisingly, voted only for their own bill, so that was the one that passed.

[Davis X. Machina]

Perhaps I’m naïve, but I think they’re motivated by good intentions.

I think I'm an incredible chick magnet, and that the Celtics are going all the way this year.

That's what makes this country great.

[OCSteve]

Can anyone explain how it is that they couldn’t pass their version of this? That means that they didn’t have enough Democrats to support it right?

But then they got bullied into letting the admin version come to the floor and some Democrats voted for it. It passed by 44 votes.

I don’t get it:
Speaker Nancy Pelosi said the measure “does violence to the Constitution of the United States.”

You are the Speaker! You are in charge, and you just facilitated passing a bill that “does violence to the Constitution of the United States”?

But with the Senate already in recess, Democrats confronted the choice of allowing the administration’s bill to reach the floor and be approved mainly by Republicans or letting it die.

If it had stalled, that would have left Democratic lawmakers, long anxious about appearing weak on national security issues, facing an August spent fending off charges from Republicans that they had left Americans exposed to threats.

I’m sorry but I don’t get it. Mean Republicans forced them to pass a bill they are overwhelming opposed to? When are they going to start acting like they are actually in charge?

[KCinDC]

OCSteve, I haven't seen a good explanation of the vote on the Democratic bill in the House and why it was conducted under the strange rules it was. It don't get it either.

I don't think you can compare the votes on the two bills, because by the time the Republican bill was voted on, the Senate had already recessed, so it was that bill or nothing.

[Incertus (Brian)]

Perhaps I’m naïve, but I think they’re motivated by good intentions.

Good intentions mean dick when you're talking about the people in charge right now, given their propensity for violating the Constitution without a second thought.

[OCSteve]

OK, so I guess you can blame Republicans for the failure of the Democrats bill:

A narrower Democratic alternative, which Democrats said they crafted partly in response to McConnell's concerns, won majority support but nonetheless failed because it did not collect the necessary two-thirds vote Friday night in the House.

So if most Republicans just refuse to cast their vote then it can’t pass anyway. Here I thought that there was no filibuster in the House but that hardly seems much different.

[KCinDC]

The question is why a two-thirds vote was required on the Democratic bill. I'm assuming it was brought up under rules requiring a supermajority but preventing any amendments from being introduced, and without those rules the Republicans plus a few Democrats would simply have amended it into something like the Republican bill or killed it with a poison-pill amendment. But I'd like to have a better explanation, if anyone's seen one.

[novakant]

Because the actual monitoring took place in the United States, FISA kicked in even though it shouldn’t in this situation. Thus, it’s a relic of the pre-packet-switched era. On this issue, FISA reform makes perfect sense and is uncontroversial.

Maybe I'm misunderstanding you here, but did you just say that it's perfectly alright for the US to listen in on everybody everywhere as long as they're foreigners not located on US territory. Because, you know, in most countries this is regarded as spying and punishable by life in prison or death. Now, I'm sure there's plenty of this going on with or without the consent of foreign governments, but calling it 'uncontroversial' is a bit rich, don't you think?

[Model 62]

There's our Tweedle-dum, Tweedle-dee government in action.

I get the arguments in favor of lesser-evil voting (and agree with them), but after this week's FISA debacle, it's easy to say "Aww, Eff-it" and decide to write-in Jerry Brown across the ticket, from dog-catcher to President.

[paradox]

"I think I'm an incredible chick magnet, and that the Celtics are going all the way this year.

That's what makes this country great."

[smiles] Man that was good.

[Dan]

A handy guide to those who voted "yes" and their home pages:

http://pruningshears.squarespace.com/pruning-shears/2007/8/5/house-fisa-yes-votes.html

[OCSteve]

The question is why a two-thirds vote was required on the Democratic bill.

Yeah, I misread. I wasn’t reading it as two-thirds required for passage, but as a procedural thing.

[OutSourced]

"Motivated by good intentions?" Karl Rove's? Dick Cheney's? John Boehner's, Mitch McConnell's, Melanie Morgan's and Bill O'Reilly's?

That sort of language is what traps the Democrats into responding incorrectly to the situation they're in. They are like a wounded spouse who wakes up every morning, bruised and aching, thinking that "Today will be different." That fantasy is what empowers those who abuse them.

The Democratic Party won control of both houses of Congress in '06, in a national reaction against the president's overreach, his lack of candor and his lack of competence. Despite that victory, and a mandate to restore balance and limit widespread corruption, the Democrats just gave George Bush the virtually unfettered power to spy on Americans. No debate. No limits. No effective oversight.

The current Democratic Party has become like the cattle in Billy Crystal's City Slickers. Karl Rove can send them stampeding in fear simply by grinding his coffee.

The resulting loss of our privacy, combined with the legislative branch's abject submission to the executive, seems likely to have repercussions of Shakespearean proportions, no less dramatic for being hidden away. "Perhaps I'm naive" is exactly right.

[hilzoy]

WTF???

I leave the country for a few days and look what happens!

I kid, I kid. But jeez: I can't wait until I get back on decent internet access and can try to figure out what on earth accounts for this. (Oddly, it wasn't covered in the Pakistani press. Tom Tancredo's threat to blow up Mecca and Medina has gotten big play, though. I've spent quite a bit of time explaining to people that Tancredo is a nut, and that the fact that he has been described as doing this to win political support does not, in fact, mean that Americans generally are in favor of blowing up Mecca and Medina.)

[publius]

jeezus christ outsourced. settle down. ask yourself which sounds more plausible -- (1) bush, etc. wants these powers b/c they think it will help; or (2) they want these powers b/c they're plotting how to spread their evil across the land

my point is not that they are fairy tale villians seeking to do evil, but that they policies they prefer are very bad and dangerous ideas b/c (1) they can be abused later; and (2) they trample on privacy, civil rights, etc.

i can stomach many things, but being called david broder is not one of them

[OCSteve]

Hilzoy: I leave the country for a few days and look what happens!

Let that be a lesson. ;) Have fun over there. Be sure you get back before that Obama dude wins and starts bombing Pakistan though… ;)

publius: Excellent response @6:10 and thank you. We don’t have to attribute to evil what pure stupidity can accomplish.

[KCinDC]

Letter from Pelosi:

Dear Chairman Conyers and Chairman Reyes:

[...] Many provisions of this legislation are unacceptable, and, although the bill has a six month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken.

Accordingly, I request that your committees send to the House, as soon as possible after Congress reconvenes, legislation which responds comprehensively to the Administration’s proposal while addressing the many deficiencies in S. 1927.

Let's hope they do something before the last minute this time (though this does give Bush a heads-up for when to issue the next terror alert). I have my doubts that they'll manage to avoid extending the powers they've already given the administration to "fight terrorism".

[CharleyCarp]

but calling it 'uncontroversial' is a bit rich, don't you think?

There are, in my view, precisely zero votes in Congress for outlawing listening to conversations between foreigners. If foreigners want protection from the US government, they need to get their governments to make treaties. Our Fourth Amendment doesn't protect foreign foreigners.

The Democratic Party won control of both houses of Congress in '06, in a national reaction against the president's overreach, his lack of candor and his lack of competence. Despite that victory, and a mandate to restore balance and limit widespread corruption, the Democrats just gave George Bush the virtually unfettered power to spy on Americans. No debate. No limits.

My congressman didn't vote for it. Most Dem congressmembers didn't. Indeed, among Dems, the vote was 181-41 against. How did yours vote, Outsourced, and Model 62?

No debate and no limits -- think that might be a little over the top?

[Model 62]

CharleyCarp:

One of my Senators voted for (Dianne Feinstein); the other voted against. I'll be letting her know I disapprove.

Despite my phone call to his office urging a 'Nay' vote on the FISA re-do (during which I spoke to a nice sounding young man), my Congressperson (Dana Rohrabacher-R) voted against (the easier to take Dem version) before he voted for (the president's preferred version).

I understand plenty among the Democratic contingent mean well and try their best. Meaning well and trying real hard is not the same as getting it done.

As I said, I understand the arguments in favor of lesser-evil voting. And I agree with them. Doesn't mean I have to like the results.

[faux facsimile]

So apparently, Dems would rather allow to have passed bad laws, than no laws.

There are a billion things they could have done to kill the bill: everything from a poisoned pill rider to bottling it up in committee. They did absolutely nothing.

Appeasers? At least Chamberlain got a few months of peace for western Europe for his troubles. These morons got squat. It's not as if Repubs will stop accusing Dems of being traitors or objectively pro-terror because of this vote...

[publius]

that last point is what's so baffling to me. it's not like this is going to stop the ads

[KCinDC]

I'm disgusted at the passage of the bill, but the point doesn't seem that baffling to me, Publius. Of course it's not going to stop Republicans from accusing Democrats of being weak on terrorism, but the argument that it removes one possibly devastating bit of content from those ads doesn't seem that unreasonable to me.

The argument that the Republicans are going to make their ads regardless, and anyone who falls for them would never have voted for a Democrat anyway, reminds a little me of the argument that the terrorists hate us regardless, so nothing we do can make the situation worse or win more people over to their side.

Unfortunately there are people out there that fall for this stuff again and again, and I don't know what the solution is, especially since the media is not on our side. I certainly don't think the solution is to vote for bills like this, but I also don't find it baffling that some Democrats weren't willing to sign up for several weeks of having the White House, congressional Republicans, the right-wing noise machine, and the media accusing them of failing to protect the American people. They believe the amount of grief they'll get for this vote is less than that, and I'm pretty sure they're right.

[publius]

fair point KC -- for what it's worth, i've been noodling this very point for much of the day and come up with a good answer. but that sounds about as right as anything i've thought up

[cleek]

i assume the Dems are taking the anti-Daddy State / anti-Iraq war vote for granted and are trying to snag of those mythical centrist voters by playing Republican Lite.

well... fnck em. the next DNC jerk who calls me begging for money is gonna get an earful.

[Nell]

hilzoy: I can't wait until I get back on decent internet access and can try to figure out what on earth accounts for this.

Internet access might not make much difference. Plenty of people who watched it almost in real time and have been discussing little else since "can't figure it out." People inclined, as you are, to attribute good faith and give the benefit of the doubt are having a particularly hard time figuring it out.

I saw it coming and blogged about it, and have seen nothing in the aftermath to convince me it wasn't just a sheer replay of the Patriot Act, Iraq war resolution, Military Commissions Act, and on on and on:

Regime invokes terror threat (this time including a special just-for-Congress "alert"), media amplifies the 'Dems fear being called weak on terror, and bingo, game over.

As I said before the vote:
This is a level of inability to break out of a losing pattern that, if it happened in a sporting event, would raise suspicions that the fix is in.

I'm out of this particular rigged game for good.

Oh, cleek: eerie. Five minutes after I read the Post article about the cave-in on Saturday morning, a DNC fundraiser called. I was polite despite being more angry and disgusted than I've been in years, but it was an icy politeness, and a short call.

[Nell]

KCinDC, What you say about the Dems who voted yes is absolutely correct, but points back to the huge leadership failure.

It's been clear for months (at least since McConnell's May op-ed) that the regime would be taking the exact same approach as they did with the MCA last year: Faced with legal setbacks to their policy, instead of modifying it they demand that Congress ratify the policy in a way that hands over still more power to an unaccountable executive. And from past practice it's clear that they will go completely on the offensive, using the issue as a political bludgeon on Congressional Democrats as they face a deadline (election in 2006, recess in 2007).

In that situation, the only winning strategy is to say no way -- early, loudly, clearly, and with an argument why, and stick to it.

That way the debate publius is talking about actually has a chance to happen. (And, by the way, great post, pub! I forgot to thank you at the beginning of my first comment.) But that requires an organized strategy, which starts with recognizing what kind of struggle you're in, and knowing your adversary.

Something not likely on offer soon, to judge from Glenn Greenwald's comments on his interview with Chris Dodd.

[Nell]

Oh, man. I just read Greenwald's next post, the bulk of his interview with Dodd. Sen. Dodd recounts the history of what happened with the MCA last fall -- and it reinforces my point completely.

Nothing's going to make Harry Reid an organizer; he's on autopilot.

[publius]

thx nell -- and yes, the silver lining is the 6 month sunset. the final bill won't be great, but hopefully they can at least be ready this time around

[Don SinFalta]

Maybe the Bushies really did have the "best of intentions", but it's worth remembering that one of their intentions is to strengthen the power of the "unitary executive", independently of whatever they want to do to protect people against terrorism. And either a sizable portion of the Dems agree with them, or they're being played because they're so afraid of losing part of the voting public for being soft on terror.

I agree it would be nice to have an honest, up front debate about issues like this, but how long has it been since that has happened? Do we really expect to see that encouraged by this sort of capitulation? What's the motivation for the Republicans to play it straight when they get exactly what they want using these bullying tactics, just as much when they're in the minority as in the majority?

After hearing about this vote, I didn't wait for any DNC fundraising calls. I sent them email, explaining to them that their party has been on probation with me since the Military Commissions Act was passed, and that now they've violated their probation. I warned them that any fundraising calls to me in future would carry a significant danger of deafness and possible brain damage for the caller along with a certainty that no funds would be forthcoming. I also told them they shouldn't count on "lesser evil" votes from me in future.

I'm not so convinced by these "lesser evil" arguments anymore. Like boiling a frog gradually so that it doesn't notice it's being cooked, I think there's a serious possibility that having both parties ratify our gradual slide into the muck is just making it more likely that people will acquiesce. If enough people drop support for the Invertebrate Party and make it clear why, maybe they'll start thinking they have more to lose by caving than by pandering on issues like this. Their certainty that people like me have nowhere else to go only makes this kind of action easier for them. I'll certainly continue to support candidates that represent my values (a rarity in Texas), but I'm done with any sort of institutional support for the IP in its current form.

[novakant]

If foreigners want protection from the US government, they need to get their governments to make treaties. Our Fourth Amendment doesn't protect foreign foreigners.

A bit of a shame, that such treaties aren't worth the paper they're written on. The US has been spying on the citizens of its closest allies for decades, as well as conducting industrial espionage against them. But I guess it's ok because they're, well, foreigners.

[Slartibartfast]

The US has been spying on the citizens of its closest allies for decades, as well as conducting industrial espionage against them.

And, well, our closest allies have been spying right back, and conducting industrial espionage against us. Israel, in particular, is quite active in this regard. When DoD security briefings were overhauled in the mid 1990s, the focus shifted from the espionage threat posed by our adversaries to that posed by our allies.

[novakant]

And, well, our closest allies have been spying right back, and conducting industrial espionage against us.

Well, sure, even though the scope of UKUSA/Echelon is wider by several orders of magnitude and Israel is a special case - I don't think there have been many complaints about, say, Germany's BND spying on US citizens.

Anyway, I was taking issue with the claim that all this was 'uncontroversial' - I don't like being spied upon and it doesn't make me any happier if a foreign power does the spying.

[Hartmut]

Be careful Slarti, Israel is not formally an ally of the US and alleging that Israel can do wrong is anti-semitism. Next thing is you accusing the Saudis of being a corrupt oligarchy ;-)

[Hartmut]

The BND couldn't spy on Grandma Millie without her noticing. Even the DHS would awake from its slumber and ask what those slouch hats were doing ;-)

[mds]

To be blunt, the issue is whether we want the executive branch to have virtually unlimited and unchecked authority to conduct electronic surveillance for anti-terrorism purposes.[Emphasis added]

Check the fine print. There's no requirement whatsoever that it be for anti-terrorism purposes, just that the Executive assert without any meaningful outside review that the surveillance is for "intelligence" purposes.

ask yourself which sounds more plausible -- (1) bush, etc. wants these powers b/c they think it will help; or (2) they want these powers b/c they're plotting how to spread their evil across the land

You mean like giving the Attorney General the power to unilaterally fill US Attorney vacancies? Yeah, they obviously wanted that power because they thought it would help... Republican electoral shenanigans. This administration's "good faith" account ran dry a long time ago. They used patently dishonest arguments and fearmongering to ram this through, not a debate on some fairy-tale actual merits. If it was out of the best intentions, why were they lying about it, smearing their political opponents, and basically saying, "Nice national capital you've got here; be a shame if something happened to it" to achieve it?

[KCinDC]

I really don't understand the terrorism alert from now through September 11. If it's related to September 11, why would it happen some time between now and then? And have Islamic terrorists ever timed an attack for an anniversary (and an anniversary on the Gregorian calendar rather than the Islamic)? That and the convenience of having it for this bill make me extremely skeptical.

Having cried wolf so often for political reasons, this administration now wouldn't be believed if there were a real reason for an alert. Yet another example of how the Mayberry Machiavellis have made us less safe by putting politics above everything.

[cleek]

That and the convenience of having it for this bill make me extremely skeptical.

you shouldn't be skeptical. you should be outraged.

[Scott]

A contrarian view:
re: "Indeed, the fact that the debate was masked in this way arguably illustrates the political weakness of Bush’s position.

The original debate was over whether Bush had the legal power (as opposed to political weakness) to conduct the international monitoring. The lawsuit was based on the idea that US citizens were harmed by being monitored.

So far, the courts have agreed with the administration, not the plaintiffs. I suspect that this legislation will make puruit of the original suit null and void. It will drop before it gets to SCOTUS. Personal opinion, could be wrong. If it makes it to the SCOTUS, the outcome will be in favor of the administration.

However, if the issue is strength or weakness of the respective political positions, then the opponents of the expansion of FISA are in the weak position. The fact is that the Democrats, and the odd Republican here and there, are out of step with the nation. The polls have made it perfectly clear that the public agrees with monitoring foreign calls if it potentially protects us.

If the Dems had the votes, they would have pursued it more vigously, and you would have had a debate. But it is a loser publicly, and the Dems let it go through rather than looking like they oppose the will of the people. Like they tried with the immigration bill, for example, along with the odd Republican here and there. Or the attempts to defund the war and force disengagement in Iraq. Politically, their position is weaker than Bush's postion.

[KCinDC]

The polls have made it perfectly clear that the public agrees with monitoring foreign calls if it potentially protects us.

Who in Congress do you see disagreeing with that position? The dispute is about whether the administration should be able to monitor calls with no oversight, not about whether the monitoring should take place.

[Scott]

Actually, FISA judge James Robertson ruled that the wiretaps were illegal, ruled against supervised wiretaps, and then resigned in protest. See former post at this site:

http://obsidianwings.blogs.com/obsidian_wings/2005/12/fisa_judge_resi.html

FISA had denied administation requests for wiretaps:

http://www.latimes.com/news/nationworld/nation/la-na-spying2aug02,0,5813563.story

But the fact is, the Dems do not have public support to oppose the bill, and therefore they could not block the bill without the possibility of serious damage in 2008, which was, and is, my position.

[cleek]

and therefore they could not block the bill without the possibility of serious damage in 2008, which was, and is, my position.

and now because they've passed this, the Reps are going to take it easy on them ? right.

but the Dems already ran against a storm of "weak on terror" accusations in 2004. and they won. if there's an incident before the election, they're going to have to take the heat for being the party in charge and not doing enough, no matter what. the Rep candidates have been attacking the Dems on this stuff for months.

the fncking Dems just refuse to act like they have power - on anything, not just this.

[NHModerate]

Just spotted a new post about FISA from the GOP perspective at http://robboyce.com/blog/2007/08/06/fisa-a-win-for-the-gop-and-bush/

[NHModerate]

Just spotted a new post about FISA from the GOP perspective at http://robboyce.com/blog/2007/08/06/fisa-a-win-for-the-gop-and-bush/

[hiphoplawyer]

Can we PLEASE stop talking about the "saving grace" of this Act being the six month sunset provision? The last subsection clearly states that any intelligence programs authorized under the Act will, notwithstanding the sunset, "remain in effect until their expirations".

In other words, in order to undo this, congress can't just block reauthorization in six months; rather, they will need to muster a veto-proof majority to _repeal_ it. And *that* will never happen.

This means that the WH has 6 months to authorize everything they could conceivably want, give all the programs long durations (10, 20, 30 years?) and then, in the very unlikely event that Dems grow some cajones in the next six months and block reauthorization, then, well, too bad!

[worknaught]

Maybe some dem grunts voted against this, but the leadership was consistent in being in lock step with the repubs.
Why?
NO politician likes to be held accountable. To be able to run rampant adds ecstasy to the job on both sides of the aisle--more so for the leaders than the grunts.
Cheney/Bush are so driven by the notion of NO ACCOUNTABILITY --political or legal-- that they are willing to sacrifice their own party in the coming landslide. The dem leadership is getting orgasmic over the golden egg that Bush has laid.
After the last election the first priority for the dem leaders was to clearly establish their version of checks and balances. "Impeachment is off the table."
Let the shredding of the constiution continue.
The dems were not steamrolled on this--we were.
We have been screwed!!====again

[J Thomas]

It probably helps the administration negotiate that they have access to all congressional communications.

With every legislator's office, phone lines, internet access etc thoroughly bugged, Bush's minions surely have a pretty good idea what they'd put up with.

[I C]

"This uncertainty has important legal implications. For instance, U.S.-to-U.S. communications trigger FISA protections. Likewise, non-U.S. to non-U.S. communications by foreigners generally don’t."

Elsewhere the prior status of communications overseas to or from a person in the U.S., may be implicit, but from the quote above, it is unclear. The White House spun it this way as well: "Changes In Technology Since 1978 Had The Effect Of Expanding The Scope Of FISA's Coverage To Include Intelligence Collection Efforts That Congress Excluded From The Law's Requirements," which it then defined as including anyone overseas, and stated that this was an unintended effect. In fact, FISA was quite clear, and quite specifically and directly covered communications to or from U.S. citizens or permanent resident aliens in the United States (50 U.S.C. 1801(f)(1), 1801(i)).

The new bill simply stated that this is no longer the case. Therefore, communications to or from U.S. citizens or permanent resident aliens ("United States persons") in the United States are not covered under FISA (nor are communications to or from United States persons in the United States with someone "reasonably believed" to be outside of the United States.)

The difference between the democrats original suggested bill, and the one ultimately passed, is enormous. Yet that difference is only mundanely related to picking up intelligence information.

The Bill basically says FISA, the "Foreign Intelligence Surveillance Act," no longer applies, unless the communications are between parties wholly in the U.S. (where it didn't anyway, the Federal Wiretap bill does), which is what the administration clandestinely did in the first place under its program as first disclosed back in December of 2005, and essentially supports the point that the administration feels the government should not be bothered with warrant requirements on this subject. (In other words, FISA is effectively outdated, and should no longer be in effect. But it was not couched this way, at all, with the result that this debate was avoided, as were the reasons FISA was created in the first place, or why this change, as opposed to others, was necessary or even helpful).

Since there is no meaningful oversight, there is no way to know how such spying, is actually being, or will be, used. The most important consideration has received the shortest attention, amidst all the rhetorical posturing. Dishonest debates, lead to dishonest results. In this case, with the potential ramifications being quite significant, regarding just what our free and open democracy under a government of either limited, or at least "checked" powers, really means.

[Paper Shredders]

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