July 15, 2006


Wiretapping Review Is Criticized (ERIC LICHTBLAU, 7/15/06, NY Times)

Critics of the Bush administration’s program for wiretapping without warrants said Friday that they would fight a new White House agreement to let a secret court decide the constitutionality of the operation, and the compromise plan failed to deter lawmakers from offering up competing proposals of their own.

The agreement, completed Thursday by Senator Arlen Specter after negotiations with the White House, drew immediate scrutiny in Washington, as politicians, national security lawyers and civil rights advocates debated its impact and legal nuances.

The plan would allow the secret court known as the Foreign Intelligence Surveillance Court, which normally issues wiretapping warrants in terror and spying cases, to review the program and decide on its legality. The proposal would have to be approved by Congress.

Representative Adam Schiff, a California Democrat who has been critical of the National Security Agency wiretapping program, said in an interview Friday that he saw the White House-Specter proposal as “a further abdication” of the role of Congress in setting rules for federal surveillance and wiretapping.

“We’re going to let a secret court decide for us what to do?” Mr. Schiff asked. “I think it’s a cop-out.”

Don't worry, the Executive won';t let a court stop them either. It's a Constitution-in.

Wiretap Surrender (Washington Post, July 15, 2006)

[T]he cost of this judicial review would be ever so high. The bill's most dangerous language would effectively repeal FISA's current requirement that all domestic national security surveillance take place under its terms. The "compromise" bill would add to FISA: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." It would also, in various places, insert Congress's acknowledgment that the president may have inherent constitutional authority to spy on Americans. Any reasonable court looking at this bill would understand it as withdrawing the nearly three-decade-old legal insistence that FISA is the exclusive legitimate means of spying on Americans. It would therefore legitimize whatever it is the NSA is doing -- and a whole lot more.

Allowing the administration to seek authorization from the courts for an "electronic surveillance program" is almost as dangerous. The FISA court today grants warrants for individual surveillance when the government shows evidence of espionage or terrorist ties. Under this bill, the government could get permission for long-term programs involving large numbers of innocent individuals with only a showing that the program is, in general, legal and that it is "reasonably designed" to capture the communications of "a person reasonably believed to have communication with" a foreign power or terrorist group.

The bill even makes a hash out of the generally reasonable idea of transferring existing litigation to the FISA court system. It inexplicably permits the FISA courts to "dismiss a challenge to the legality of an electronic surveillance program for any reason" -- such as, say, the eye color of one of the attorneys.

This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power.

Posted by Orrin Judd at July 15, 2006 10:48 AM

Gee, seven months ago Democratic politicians and others on the left were up in arms that Bush was bypassing the wonderful FISC system in connection with the NSA overseas phone surveillance efforts. Now, even that court isn't good enough for Rep. Schiff.

Posted by: John at July 15, 2006 12:13 PM