Who watches the watchers? Or, perhaps more accurately, who watches the White House, which told the National Security Agency to watch a lot of people, including U.S. citizens sans search warrants? Well, it turns out that Congress does:
After weeks of insisting it would not reveal details of the National Security Agency's warrantless monitoring of Americans' phone calls and e-mails, the White House reversed course Wednesday and provided a House committee with highly classified information about the operation….
The shift came the same day Senate Judiciary Committee Chairman Arlen Specter, R-Pa., announced he is drafting legislation that would require the secretive Foreign Intelligence Surveillance Court to review the NSA's monitoring program and determine if it is constitutional.
It also came after Rep. Heather Wilson, R-N.M., chairwoman of a House intelligence subcommittee that oversees the NSA, broke with the Bush administration and called for a full review of the program, along with legislative action to update the 1978 Foreign Intelligence Surveillance Act (FISA)….
The updating of FISA law to legalize beyond question the White House's plan seems a likely outcome of the hullabaloo. Indeed, that's basically what conservative Heather Mac Donald called for in a recent NY Post piece. After allowing that the plan "probably did violate the Foreign Intelligence Surveillance Act," she argues the act needs to change:
FISA's probable-cause standard is a belated encroachment on national defense that contravened centuries of constitutional thinking. The Fourth Amendment's probable-cause requirement governs criminal prosecution–to ensure that the government's police powers are correctly targeted and do not unreasonably invade privacy.
But judges and criminal evidentiary standards should be irrelevant when the government is gathering intelligence to prevent an attack on the country. A federal judge has no expertise in evaluating the need for and significance of foreign intelligence information. And the standard for gathering intelligence on our enemies should be lower than that for bringing the government's penal powers to bear on citizens.
Whole thing here.
In his great interview with Reason last year, Fox News legal honcho and ardent civil libertarian Judge Andrew Napolitano talked about how FISA has already changed over the years–always toward a weaker standard for action and casting a wider net as to who could be caught under its net. Check that out here.
What we're likely witnessing, then, is the next devolution of FISA. Hooray for our side.
Reason's Julian Sanchez and Heather Mac Donald duked it out over the PATRIOT Act here.