Spectral Security
Friday, July 14, 2006
Specter Gives Up the Game– The Sham NSA Bill
Reposted from Balkinization
JB
Senator Specter has reached agreement with the White House on a bill that would amend FISA and allow judicial review of the Administration’s domestic surveillance activities on a program by program basis. The text of the bill is here and a summary is here. (see original at Balkinization)
Although the judicial review provision is worrisome, it is by no means the most troubling thing about this bill. Specter’s proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter’s bill looks like a moderate and wise compromise that expands the President’s authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill’s oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.
But first, the details: The bill authorizes the FISA court to permit “electronic surveillance programs”– the key point being that these involve domestic surveillance of U.S. citizens– for periods up to 90 days, periods which are indefinitely renewable. Authorization is on a program by program basis, rather than on the basis of the particular individuals who are being watched. All legal challenges to the surveillance program– including challenges to the use of evidence in other prosecutions or litigation– can be moved to the secret FISA court if the Attorney General states that national security demands it. The FISA court, in turn, has the power to dismiss a challenge to the legality of the program “for any reason.” This provision seems puzzling: literally it says that the court can dismiss legal challenges to programs for any reason, whether good or bad, and even if the objections to the programs are well founded. In fact, the provision makes sense only if its purpose is to allow the FISA court to immunize Presidential surveillance from legal attack.
To obtain permission for an electronic surveillance program the Attorney General must declare in an affidavit that the program cannot be performed under existing FISA procedures and that the communications intercepted are communications of or with “(A) a foreign power that is engaged in international terrorism activities or in preparation therefore; (B) an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore; or (C) a person reasonably believed to have communication with or be associated with a foreign power that is engaged in international terrorism activities or in preparation therefore or an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore.”
Note that under this test a U.S. citizen can be wiretapped even if he is not involved in terrorism as long as at some point he has been in communication with someone involved in terrorism, even if he or she does not know that the person was involved in these activities. Thus the Specter bill clearly allows electronic eavesdropping of citizens whom the Administration does not suspect of terrorism. And under the bill’s terms, this surveillance is not limited only to conversations with persons whom the Administration does suspect of terrorism. As the bill is currently written, once a person has been “in communication with” a suspected agent of terrorism– even for the most innocent reasons– he or she is marked as a lawful target of surveillance. In order to prevent the obvious possibilities for abuse, the statute also requires that the Attorney General offer and implement what are called “minimization procedures.” (These procedures are outlined in FISA at 18 U.S.C. section 1801(h)).
But that’s not all. The new Bill amends section 102 of FISA to allow the President to engage in electronic surveillance without seeking a court order for up to a year as long the Attorney General is willing to state that all he is doing is intercepting communications by foreign powers or their agents. This changes the old FISA provision section 1811 that allowed warrantless surveillance for up to 15 days after a declaration of war. No declaration of war is necessary now, and the program can continue for a year instead of 15 days.
What is interesting– and puzzling– about these two provisions is that even though they are quite broad, they do not seem to be adequate to justify the existing NSA program, at least as it has been reported in the press. That program appears to have involved intercepting a wide swath of electronic communications, some with no overt connections to terrorism, which were then whittled down through analysis and data mining to produce a series of leads for future surveillance. What is mystifying about this bill, in short, is that even if it were passed, the NSA would immediately have to go beyond the authority it grants.
And that curious fact leads us directly to section 801, which, it turns out, is actually the most important part of the bill; the rest is mere camouflage. Section 801 offers nothing less than Congressional imprimatur for the President to go outside of FISA whenever he likes. For section 801 states that “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.” This restores the very language that was repealed when FISA was created to constrain and channel the President’s powers. And if you look closely at the bill’s proposed additions to section 109 of FISA, you will see that FISA would now prohibit electronic surveillance except as authorized by statute “or under the Constitution.” Similarly, 18 U.S.C. 2511(2)(e) used to say that FISA was the exclusive means by which electronic surveillance was legally authorized. The Specter bill changes that to read that electronic surveillance is authorized “under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978.” Get the idea? The President can always do an end run around any procedures that FISA offers as long as he claims inherent authority under Article II. If Specter’s bill passes, all of FISA’s limitations and procedural safeguards won’t be worth the paper they are written on. Specter will have written the Administration’s Article II on steroids theory into law!
In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of– a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President’s constitutional authority to collect foreign intelligence surveillance.
Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.
frank:
Scary stuff Stan- we’re getting closer and closer to the Orwellian-1984 society; perhaps that’s where the fully-operational and staffed, but empty!!!, prison(s) in central CA fit in. Yikes! Pretty soon, Americans won’t even be able to simply disagree with inept leadership without facing some ungodly, unjust form of “punishment”.
21 July 2006, 8:22 pmWish it wasn’t all bad news though.
Robin Hering:
Judges are a line of defense, now that Congress can’t see the forest for the trees. Not meaning the FISA court, but others. I’m a little suspicious that that may be why the media echo chamber has been teaching citizens to talk about the “liberal judges making laws in defiance of Congress,†that this line of defense would have been anticipated.
This is the way the Nazi party took so much control away from the overarching republic and they were very scrupulous about the law. I’d suggest that someone it telling Gonzales what to do because he’s not that smart. It seems to me that Ashcroft quit because he’d gotten involved in something he didn’t like the smell of, was in over his head. Note that the Dept of Justice in the Executive is completely at odds with the court system. Note that Supreme Court Justice Sandra Day O’Connor has seen the light.
Readers might take ten minutes to write to the judges who are doing this for us and thank them, because they are few and they stand alone. They likely need support. Here’s the name and address of the judge who said he’d hear the case of Bush admin wiretapping, that national security certainly wouldn’t be compromised if he did.
The Honorable Vaughn R. Walker
22 July 2006, 12:41 amChief Judge
United States District Court for the Northern District of California
450 Golden Gate Avenue
San Francisco, CA 94102
Robin Hering:
The Executive Branch of the United States Government:
655 Signing Statements nullifying Bills passed by Congress. More than all previous Presidents combined
210 Executive Orders. More than all previous Presidents combined
2007 Federal Budget signed into Law without a Vote in the House
22 July 2006, 12:47 amJanet W:
Two questions following up on Robin’s posts:
1) “the judges who are doing this for us” — sorry to post such a dumb question, but could you spell out what [some] judges are doing (what is “this”?) so I can make my letter more specific? Happy to write, just want to sound more informed. I think (!) I understand that some judges are standing up to Bush et al. trying to take away our rights to not be spied upon, but not technically how they are going about it. Also, FISA seems to me to have been essentially a rubber-stamping mechanism; shouldn’t we be trying to get more protection than just a return to FISA as it was?
2) The 2007 Fed. budget was signed into law without a vote in the House — how is that POSSIBLE?
What happened while I was reading the sports pages?
Thanks for your time and attention.
22 July 2006, 2:46 pmRobin Hering:
Here’s Conyers on the 2007 budget: http://www.truthout.org/docs_2006/042706R.shtml
Slippery slope.
Re: FISA. Agreed, to some extent. That’s why I excluded it. But there are plenty of staff associated with FISA and it’s not likely many want to go on record or leave a paper trail documenting carelessness or inattention. The records affect careers.
Read about Supreme Court Ruling on HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al., at Findlaw.com … But I think Stan, here, had posted a good assessment around the beginning of July.
Chief Judge William Young’s Magnum Opus Declaring Federal Guidelines Unconstitutional : Judge William Young ruling that Apprendi renders the federal sentencing guidelines unconstitutional: a truly remarkable 177-page opinion released late Monday, Chief Judge William Young of the U.S. Distict Court of the District of Massachusetts has ruled that the logic of Apprendi and Ring renders the federal sentencing guidelines unconstitutional.
Best of all, here’s Judge Young sentencing Richard Reid. I use a little band width posting it because it’s been suggested that you read it, or parts of it, as if Judge Young was addressing the Bush Admin/DOJ.
YOUNG: Let me explain this to you.
We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is all too much war talk here. And I say that to everyone with the utmost respect.
Here in this court where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice.
You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist.
And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists.
We hunt them down one by one and bring them to justice.
So war talk is way out of line in this court. You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.
In a very real sense Trooper Santiago had it right when first you were taken off that plane and into custody and you wondered where the press and where the TV crews were and you said you’re no big deal. You’re no big deal.
What your counsel, what your able counsel and what the equally able United States attorneys have grappled with and what I have as honestly as I know how tried to grapple with, is why you did something so horrific. What was it that led you here to this courtroom today? I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing.
And I have an answer for you. It may not satisfy you. But as I search this entire record it comes as close to understanding as I know.
It seems to me you hate the one thing that to us is most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose.
Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see that justice is administered fairly, individually, and discretely.
It is for freedom’s seek that your lawyers are striving so vigorously on your behalf and have filed appeals, will go on in their, their representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.
Make no mistake though. It is yet true that we will bear any burden; pay any price, to preserve our freedoms.
Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done.
The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.
See that flag, Mr. Reid? That’s the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will. Custody, Mr. Officer. Stand him down.
22 July 2006, 7:50 pmJanet W:
Robin,
Thanks so much. I read it all with interest and will follow up by reading more on the budget. My Congressman was one of the colleagues who signed onto Conyer’s lawsuit.
Judge Young’s words are inspiring. May the War Criminals in office now have to face someone like him someday.
Very informative post.
23 July 2006, 2:07 amblubonnet:
Quotations from icons of history, and people of scholarly stature:
Edward Abbey: “A patriot must always be ready to defend his country against his government.”
Herman Goering (2nd in command to Adolf Hitler): “The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them, they are being attacked, and denounce the peace-makers for ‘lack of patriotism’ and ‘exposing the country to danger’. It works the same in any country.”
James Madison: “If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy.”
James Madison: “No nation could preserve its freedom in the midst of continual warfare.”
James Madison: “All men having power ought to be mistrusted.”
Hannah Arendt, from THE ORIGINS OF TOTALITARIANISM: “Although tyranny, because it needs no consent, may successfully rule over foreign peoples, it can stay in power only it if destroys first of all the national institutions of its own people.”
Dwight Eisnehower 1953: “The problem in defense is how far can you go (in military spending) without destroying from within what you are trying to defend from without.”
“Robert Kennedy Jr.: “While free markets tend to democratize a society, unfettered capitalism, invariably leads to corporate control of government.”
Jim Hightower: “The corporations don’t have to lobby the government anymore. They are the government.”
24 July 2006, 1:39 amblubonnet:
Quotation–A German professor after WWII describing the rise of Nazism:
“What happened was the gradual habituation by the people, little by little, to be governed by surprise, to recieving decisions deliberated in secret; to believing the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that it, it could not be released because of national security…
To live in the process is absolutely not to notice it—please try to believe me-unless one has a much greater degree of political awareness, acuity, than most of us ever had occasion to develop. Each step was so small, so inconseequential, so well explained or on occassion regretted.
Believe me this is true. Each act, each occasion, is worse than the last but only a little worse. You wait for the next and the next. You wait for one shocking, thinking that others, when such a shock comes, will join you in resisting somehow.
Suddenly, it comes down, all at once. You see what you are, what you have done, or more accurately what you have not done. (for that was required of most of us: that we did nothing)…Yo remember everything now, Your heart breaks. Too late. You are compromised beyond repair.”
Again, this is a QUOTATION FROM A GERMAN PROFESSOR AFTER WWII DESCRIBING THE RISE OF NAZISM
24 July 2006, 1:53 am