NYT: More on FISA

Foreign Intelligence Surveillance Act - Today James Risen and Eric Lichtblau of the New York Times, thank goodness, are still looking at the law under FISA as recently pushed through and amended by Congress. Democratic leaders opposed the legislation, but did not successfully block it, out of fear that they would be criticized as being soft on terrorism. Many of the members may not have realized what they were doing, said Congressional aides. The NYT reports that Congressional Democrats have been meeting with the administration to raise their concerns that the legislation is "overly broad and troubling," and "and may have given the administration more surveillance powers than it sought." The very vocal complaints also spoke to "the diminished role of the FISA court, which is limited to determining whether the procedures set up by the executive administration for intercepting foreign intelligence are 'clearly erroneous' or not." To quote further from their very informative (8/19/07) article,

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

. . . Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States. These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

. . . Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions. Whether intentional or not, the end result — according to top Democratic aides and other experts on national security law — is that the legislation may grant the government the right to collect a range of information on American citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas.

One of the most significant new revelations of the article concerns what the administration spokespersons asserted regarding the law which gives the director of national intelligence, Mike McConnell, and Attorney General Alberto R. Gonzales the power to set up the new procedures and approve the way surveillance is conducted. To further quote the reporters on this crucial aspect of the issue - the position of the administration about what they will do or not do under the new FISA law,

. . . Vanee Vines, a spokeswoman for the office of the director of national intelligence, said the concerns raised by Congressional officials about the wide scope of the new legislation were “speculative.” But she declined to discuss specific aspects of how the legislation would be enacted.

. . . The legislation “restores FISA to its original and appropriate focus — protecting the privacy of Americans,” said Brian Roehrkasse, Justice Department spokesman. “The act makes clear that we do not need a court order to target for foreign intelligence collection persons located outside the United States, but it also retains FISA’s fundamental requirement of court orders when the target is in the United States.”

. . . At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

. . . Asked whether the administration considered the new legislation legally binding, Ms. Vines, the national intelligence office spokeswoman, said: “We’re going to follow the law and carry it out as it’s been passed.”. . . Bush issued a so-called signing statement about the legislation when he signed it into law, but the statement did not assert his presidential authority to override the legislative limits.

The authors do not name the Democrats meeting with the White House about the amended FISA law. We would not be surprised if none of the misguided Senators or House Members who voted to approve the bill came to complain about it to the administration. They would leave that fight to those losing Democrats whose votes did not prevail that late Saturday night. It is now too late for the "yes"voters to read and understand the legislation they passed. My general understanding is that one reads and understands before casting a vote.
Yes, I am still so mad at those on THE YES LIST, (corrected) I can hardly resist continuing to complain. My planned forgiveness remains incomplete, not that it matters in the least, of course.
Cross posted at The Reaction.
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