Trying to deliver the fatal blow to FISA
Having now had a chance to read through Senator DeWine's proposed "Terrorist Surveillance Act," I agree completely with Glenn and Marty Lederman: I see nothing in the bill that gives these newly created Congressional subcommittees anything more than the power to request information.
The Act does not appear to grant the committees the authority to approve or disapprove of surveillance decisions, even on a program-wide level. If the members of these committees were to disapprove of what of the President was doing, their only option would be to try to convince Congress to amend the law (which, as Marty points out, would require a veto-proof 2/3rds majority). And the committee members would have to perform this miracle without disclosing to their colleagues any of the information they learned about the program (or risk 15 years in prison). And even then, the President would--in all likelihood--simply reassert his supposed power to violate the law. And around and around we go.
This bill actually makes Arlen Specter's bill seem serious by comparison. At least under Specter's bill, the program would be subject to meaningful Fourth Amendment review.
Glenn and Marty have already done a great job picking apart DeWine's bill, so I won't repeat what they've said. There is, however, one provision in the bill that neither of them touched upon that I think is particularly troubling. Section 2(f)(2) of the bill provides as follows:
USES OF INFORMATION.--No information acquired from electronic surveillance conducted pursuant to this section may be used or disclosed by Federal officers or employees except for lawful purposes, including the provision of a factual predicate for an order for electronic surveillance under section 104 of the Foreign Intelligence Surveillance Act of 1978 . . . and use in a criminal proceeding consistent section 106 of the Foreign Intelligence Surveillance Act of 1978.
This is exactly the sort of provision I feared would be included in this bill. It is the fatal blow to FISA. To understand why this is the case, I refer you back to the February 9 Washington Post article that described the compromise the Bush administration had reached with the presiding judge of the FISA Court regarding the warrantless surveillance program.
The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
The article explains that this was an attempt by the presiding judge--who was the only member of the court informed about the warrantless surveillance program--to "shield the court from tainted information." The judges recognized that if information gained via warrantless surveillance could be used to secure a warrant, it would make a mockery of the entire statutory scheme. The compromise the Court reached with the administration was an agreement that information obtained via the warrantless surveillance program could only be used for early detection purposes--which is the reason the administration gave for needing to circumvent FISA--and never to secure a warrant or as evidence in court.
The DeWine bill--as I feared it would--eviscerates this judicially imposed firewall. Section (f)(2) of the bill explicitly authorizes the use of this tainted information in future warrant applications and criminal proceedings. In other words, this bill is not just a legalization of the status quo; it is actually far worse than the status quo. This president has declared that he has the power to conduct any surveillance he deems necessary, regardless of what the law says. But his ability to utilize the fruits of that surveillance is limited by the courts. The president cannot force the courts recognize such evidence as legitimate or admissible. But Congress can. DeWine's bill does just that, and in doing so, it eliminates the last meaningful constraint on the use of warrantless surveillance.