The FISA Amendment and The Founders

[ProSense]

The FISA Amendment and The Founders

By Big Tent Democrat, Section Legislation
Posted on Sun Aug 05, 2007 at 06:36:53 PM EST
Tags: (all tags)

The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. . . . A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. - Federalist 51

Surely there are few Administrations in history that best demonstrate the need for these auxiliary precautions than the Bush Administration.

In writing approvingly of the FISA Amendment, Orin Kerr ignores these concerns:

On the merits, I think this legislation on the whole seems relatively well done. I would have tinkered with it in some ways, and there are parts I'm not sure about, but the basic structure seems pretty good. Given that this is a 6-month temporary fix, not a permanent change, I tend to support it.

What does this legislation do?

SEC. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

This is uncontroversial and the Democratic bill also did this. Indeed, with this sole change the so-called problem would have been resolved. But the Bush Administration wanted more. It wanted unchecked power. And thus the FISA Amendment includes:

SEC. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that—

‘‘(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;

. . .
‘‘© The Attorney General shall transmit as soon as practicable under seal to the court established under section 103(a) a copy of a certification made under subsection (a). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under section 105B. . . .

This is supposed to be providing for review as to the "reasonableness" of the procedure involved. But what is the procedure or the standard by which theFISA Court is supposed to review the procedure?

SEC. 105C. (a) No later than 120 days after the effective date of this Act, the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The procedures submitted pursuant to this section shall be updated and submitted to the Court on an annual basis. . . .

The Attorney General will begin immediately implementing a procedure that will not be subject to Court review for 120 days. Why the need for 120 days for submitting a procedure that the Attorney General has deemed reasonable BEFORE implementation? Why not immediate submission?

And the standard of review?

The court’s review shall be limited to whether the Government’s determination is clearly erroneous.

Why a clearly erroneuous standard? And what would a clearly erroneous standard mean in this context? And why is this imposition of the clearly erroneous standard necessary?

The entire purpose of this provisions is to enhance the power of the executive and to free it from any checks and balances. It is clear that the Bush Administration, an Administration that has no basis for asking for any trust, has played the fear card to attack our Constitutional balance and overset the vision of the Framers of our Constitution.

Orin Kerr says:

Of course, we're talking about policy here, not law, and different people will have different reactions based on their policy preferences and sense of the threat.

Indeed, I choose to be guided by the policy preference of check and balances enshrined in our Constitution by the Framers. He ignores the warnings laid out in Federalist 51.

Kerr clams concerns:

First, I have a number of concerns about the legislation from a civil liberties perspective. For example, limiting judicial review to whether it is clearly erroneous that something is reasonably designed to target those reasonably believed to be outside the U.S. seems like a pretty weak threshold. I'm guessing that the FISA Court judges will be pretty tough on this despite the statutory language, but the statutory language itself is obviously very deferential. I also would want the courts to pass on the reasonableness of the government's method more than once a year (note that under the sunset, an authorization can go on for a year even if the legislation has been sunsetted; I gather this means that the legislation is really effective for a year, not six months). I also have an instinctive difficulty with the mandatory nature of the program without individualized court orders forcing compliance.

The concerns reflect those enshrined in our Constitution against a concentration of power in one branch. But if these were real concerns, Kerr would not view the legislation favorably. Yet he does. There is something quite disingenuous in that.

This is a keeper as the Repubs (and the Complicit Dems) argue about the Constitutionality of Bush's illegal spying.

Marty Lederman:

Matt Yglesias: "(T)he Democratic presidential candidates all seem opposed to this, but I'd put the odds of any of them actually taking action to reduce their own powers once in office at approximately zero percent." But fear not -- Matt also predicts that, "at some point years from now," there'll be a rollback when "some story will break about a truly abusive use of these surveillance authorities." Kinda like what happened to bring us . . . FISA.

[ProSense]

1. Kick! n/t

[ProSense]

2. "Democrats caved in on a simple provision..."

From Washington Monthly:

<...>

This is the problem that the competing FISA amendments were apparently trying to resolve, and both the Democratic bill (which failed) and the White House bill (which passed) addressed it by allowing surveillance of persons who are "reasonably believed" to be outside the U.S. The FISA court would determine if NSA's procedures are reasonable. Over at Obsidian Wings, Publius spells out the difference:

The Democratic bill...and this is critical...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"). (Marty) 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.

The White House bill not only fails to prohibit domestic surveillance, but opens a huge hole for just that purpose. It exempts from FISA scrutiny any communication that is "directed at" persons reasonably believed to be outside the U.S., and then leaves this phrase undefined and therefore wide open:

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

If this is right, it means that Democrats caved in on a simple provision meant to prohibit domestic surveillance without a warrant. Under the White House bill, the only oversight against abuse of the "directed at" clause is the Attorney General's say-so, and the FISA court is required to accept the AG's reasoning unless it's "clearly erroneous." This is about as toothless as oversight comes.

Democrats pretty clearly got steamrolled on this. Until Thursday they were negotiating productively with Director of National Intelligence Mike McConnell and had reached agreement on the bill's language. Nobody was making a big deal out of it because things seemed to be going smoothly. Then, at the last second, the White House rejected the language its own DNI had accepted and suddenly all hell broke loose. Democrats weren't ready for it, and with Congress about to adjourn and no backup strategy in place, they broke ranks and caved in. The only concession they got was a six-month sunset in the bill.

Was this the White House's strategy all along? To lull Dems into a stupor and then hit them over the head at the last minute with brand new demands? Hard to say, but it sure looks deliberate. Democrats are going to have to learn to play in the big leagues if they want to keep up.

It is right. The "fix" (which some argue, one that wasn't needed) involved a single provision. The Dems got played by Bush, a truly embarrassing incident!

[ProSense]

6. Kick! n/t

[TahitiNut]

3. "... may for periods of up to one year authorize the acquisition ..."

So, the purported 6-month sunset provision becomes an 18-month surveillance authorization ... for the ENTIRE Cheney/Bush term of office.

Got that?

[ProSense]

4. Kick! n/t

[blarbushie]

5. the founders must be turning over in their graves