It's All Right—We'll Sit in the Dark


The White House has reached a deal with Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) under which the Foreign Intelligence Surveillance Court will be asked to pass judgment on the Bush administration's warrantless surveillance of e-mail and phone calls involving people suspected of links with terrorism. This puts the court, which is the body charged by law with approving surveillance of suspected foreign terrorists and spies, in the strange position of saying whether it minds being ignored. Under Specter's legislation, the Bush administration will be permitted (but not required) to ask the court for a constitutional thumbs up or thumbs down on the whole surveillance program. The proceedings leading to that decision (like the court's warrant approval process) would be secret, and so might the decision itself. If the court decided the president does not have inherent authority to violate the Foreign Intelligence Surveillance Act, the administration could ask the rarely convened FISA appellate court for a second opinion, possibly followed by an appeal to the U.S. Supreme Court. It's not clear whether any of these decisions would be made public.

I have a different suggestion: Instead of asking the Foreign Intelligence Surveillance Court for general approval of whatever eavesdropping the Bush administration might want to do in the name of fighting terrorism, how about asking it to approve specific surveillance targets, as the law requires? If immediate action is required, how about seeking retroactive approval, as the law allows in emergencies? And if showing that there's probable cause to believe a target is an agent of a terrorist group is an unreasonable burden when the goal is to prevent attacks, how about asking Congress to change the standard? None of the president's men has ever given a satisfying reason for refusing to follow this course, which happens to be the one required by statute and by the Constitution.

NEXT: Detachable Stalin

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  1. I have to hope that Jack Balkin’s understanding of the bill is wrong, but he’s probably correct. Sigh.

  2. Goddam Specter and his bullshit “opposition” to the White House. He always plays hard to get only to take it up the ass like a good little bitch when it is all said and done. The White House “may” seek approval? Shit, reckon they will? It’s like letting a kid pick his own punishment when he gets in trouble– and being okay with it when the kid picks “going without vegetables for a month” as his penalty.

  3. The new tool that you don’t want to ruin is data mining.

    Something like restricting the use, ie what is mined for, might make sense ; but the input to it ought to be pretty unrestricted.

    In the old days, what was mined for was pretty directly tied to what was collected, but that approach gives up the software tools that might be useful.

    Even in enhancing civil rights – there’s less focussed collection in favor of more general collection, and what would have been illegally turned up in a focussed collection may be ignored by the software in the mining application.

    Or you can argue it as efficient use of investigative dollars towards the approved investigative end, with less “waste” that turns up leads in unapproved directions.

  4. Since we’re busy with wishful thinking, how about we ask Bush to consider a humble foreign policy, respect for state’s rights, fiscal responsibility and all the other things he promised when he applied for the job?

  5. Perfect, so this bill:

    1) Ignores the fact that there are already laws that already exist that Bush is not obeying but that Congress refuses to enforce because party trumps duty
    2) Basically says “Bush can, if he wants, ask FISA to check things out… but he doesn’t have to” which is the very definition of a do-nothing bill, because he can ALREADY do that
    3) Gives the President MORE powers with LESS oversight.

    And yet, this somehow gets presented in the media as a compromise that limits Bush’s power. In the, let me see if I can say this with a straight face: liberal media.

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