Monday, February 27, 2006

Specter's Specter FISA Bill

I wrote yesterday that Arlen Specter's bill introduced yesterday appeared to do absolutely nothing, now we have an observation from Marty Lederman that it does in fact do something. Quite a lot actually, Lederman argues that Specter's bill actually dismantles FISA. Quite a different interpretation than what was presented by the Washington Post yesterday. I'll let Lederman take it for a while now.
As I read the draft bill, however, this is wrong. It's not simply a a reenactment of the "FISA framework" -- instead, it's a wholescale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.

Under FISA, in order for the federal government to engage in electronic surveillance targeted at someone here in the U.S. -- i.e., at phone calls and e-mails going out of the U.S. -- there must be probable cause that the person targeted is a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(3). The Specter bill would go much, much further. Under that bill, it would not be necessary for the NSA to show that either party to an intercepted phone call or e-mail has anything to do with Al Qaeda or any other terrorist organization. It would not even be necessary for the government to show probable cause -- or reason to believe, or any evidence -- that etiher party to the call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power.

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular targeted surveillance -- will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power, as long as the government is seeking to monitor or detect that foreign power (or agent)! (See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.")

So, if Lederman is correct (and he makes a disclaimer that this is an initial impression and perhaps he's missing something) then the Specter bill actually prevents the President from ever having to show probable cause for a wiretap. If he can demonstrate that there is probable cause for the program as a whole then the NSA may conduct these wiretaps. I would read that to essentially declare that the President can moniter any conversation he likes if he can demonstrate that somewhere at some time there is or was a threat that wiretapping could or did stop. Assuming that Lederman is right, the Specter bill then essentially allows the President to data mine at will, as long as he can justify the program itself to the FISA Court.

Another issue unrelated to the bill comes up here. How could the Washington Post have done this awful a job in reporting on the Specter bill? Did the author not bother to wonder why Specter would propose a bill that does absolutely nothing that FISA doesn't do already? How could the Washington Post have printed an article that makes the reader think that the bill does the exact opposite of what it actually does? Come on Washington Post writers and editors, grow a brain.

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