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.
