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Is Bush Pulling a Fast One on NSA Warrantless Surveillance?

The White House said today it would consider allowing the FISA court to review its warrantless electronic monitoring program. The devil is in the details:

Specter said President Bush has agreed to sign legislation that would authorize the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the National Security Agency's most high-profile monitoring operations.

Specter said the court would make a one-time review of the program rather than performing ongoing oversight of it.

An administration official who spoke on condition of anonymity said the bill's language gives the president the option of submitting the program to the intelligence court, rather than making the review a requirement.The official said that Bush will submit to the court review as long the bill is not changed, adding that the legislation preserves the right of future presidents to skip the court review.

A one time review is not oversight. Here are the uncontroverted facts (pdf) about the NSA program. More details of the proposed legislation, according to Specter from the Washington Post article.

  • Require the attorney general to give the intelligence court information on the program's constitutionality, the government's efforts to protect Americans' identities and the basis used to determine that the intercepted communications involve terrorism.
  • Expand the time for emergency warrants secured under the Foreign Intelligence Surveillance Act from three to seven days.
  • Create a new offense if government officials misuse information.
  • At the NSA's request, clarify that international calls that merely pass through terminals in the United States are not subject to the judicial process established under the Foreign Intelligence Surveillance Act.
  • The administration official, who asked not to be identified because discussions are still ongoing, said the bill also would give the attorney general power to consolidate the 100 lawsuits filed against the surveillance operations into one case before the Foreign Intelligence Surveillance Court.

The ACLU previously has posted these objections to Specter's legislation.

Update: The ACLU responds to today's news (will be available soon here.):

"This Specter-Cheney bill is nothing short of a capitulation by Chairman Specter to the White House," said Anthony Romero, Executive Director, American Civil Liberties Union. "The 'review' contained in the bill is nothing more than a sham. The president could still choose to ignore the optional court oversight on the program. This new bill would codify the notion that the president is not bound by the laws passed by Congress or the Constitution. It would reward his abuse of power."

The Senate - and the entire Congress - must provide proper oversight over the executive," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "The law has been broken by the president, and instead of demanding answers, the Specter-Cheney bill would sanction his illegal activity. We urge the Senate Judiciary Committee to stand for the rule of law and reject this proposal."

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  • Display: Sort:
    Re: Is Bush Pulling a Fast One on NSA Warrantless (none / 0) (#1)
    by scribe on Thu Jul 13, 2006 at 12:36:04 PM EST
    Given the character of the Unit, his Admin, the persons in his Admin, and Specter, I'd be more surprised if they didn't try to pull a fast one.

    Re: Is Bush Pulling a Fast One on NSA Warrantless (none / 0) (#2)
    by ras on Thu Jul 13, 2006 at 01:36:40 PM EST
    Sounds more like the Admin already believes their pgm is just fine as is, but are worried about ongoing oper'l leaks.

    Re: Is Bush Pulling a Fast One on NSA Warrantless (none / 0) (#3)
    by Sailor on Thu Jul 13, 2006 at 03:04:11 PM EST
    Is Bush Pulling a Fast One on NSA Warrantless Surveillance?
    well, duh!
    Sounds more like the Admin already believes their pgm is just fine as is
    Of course they do, just like they thought torturing prisoners was just fine.

    Re: Is Bush Pulling a Fast One on NSA Warrantless (none / 0) (#4)
    by Peter G on Thu Jul 13, 2006 at 03:39:54 PM EST
    Wouldn't legislation authorizing a federal court to review a program rather than a case violate Article III of the Constitution, which only allows courts to resolve "cases and controversies" and does not allow courts to render "advisory opinions"?

    Re: Is Bush Pulling a Fast One on NSA Warrantless (none / 0) (#5)
    by wg on Thu Jul 13, 2006 at 04:00:03 PM EST
    Yes he is, Specter wrote into his proposal an explicit recognition of the right of the US presidents to spy on US citizens w/o warrants or courts. First time such right is recognized formally in US statues and a significant step back from civil rights and power considerations that underlay the original FISA. On top of it Specter bill decriminalizes what FISA criminalized in 1978 (warrantless spying) which removes any danger that Bush or his people will be ever prosecuted for his illegal NSA spying. It appears (details too sketchy at this point) that Specter will also authorize warrantless collection of "meta data" by the security agencies in this country. If true this will remove any ground from all those ATT court cases out there and will presumably enable the feds to demand any meta data of interest to them from private businesses in the future. Basically this is "pen and trace" collection applied to all kinds of "meta data" on steroids (financial, medical, educational, telecommunication, etc) and with zero judicial review. This he traded for Bush agreeing to submit his present NSA spying to FISA for one-time review. Specter is either naive or very cunning. Your call.

    Re: Is Bush Pulling a Fast One on NSA Warrantless (none / 0) (#6)
    by Joe Bob on Thu Jul 13, 2006 at 05:37:56 PM EST
    Require the attorney general to give the intelligence court information...
    In other words, we're supposed to take Alberto Gonzalez's word for it? Yep, that there is some tough oversight.

    My actual comment is not nearly civil enough to put here. Please think of the blackest epithets you possibly can, and imagine hurling them at fascist Constitution shredders until the wilt into the pools of virulent ooze they truly are at heart, and you'll get the general idea.

    I'm trying to think of a reason Bush is so opposed to any kind of oversight aside from surveillance of political adversaries. Can't think of any.