I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, March 09, 2006

A.L.'s observations on the surveillance deal

(updated below - updated again)

By Anonymous Liberal

Glenn did a fantastic job on Wednesday explaining why the surveillance deal struck by the White House and the Republican Senators on the Intelligence Committee is a joke, and I just want to throw out a few additional observations. Glenn noted that "[w]hat the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities."

Based on this morning's Times article, it may actually be worse than that. Under FISA, the government must get a judge to sign off on each individual warrant before surveillance begins (or within 72 hours). It appears that under this "compromise," the administration may conduct surveillance without any outside approval for up to 45 days. At that point they must either seek a FISA warrant or explain to the special subcommittee why they need to continue without a warrant. In other words, the legislation replaces FISA judges with no one.

And let's be realistic, does anyone think that members of Congress--even well-intentioned ones--are going to provide the kind of individualized, careful review that a federal judge with lifetime tenure would? Moreoever, it's unclear what, if any, classified access will be given to the staff members of the Senators and Representatives who will serve on these committees. If clearance is given only to the members of Congress themselves, it is almost inconceivable that there will be any meaningful individualized review of surveillance decisions, even assuming the administration provides the committees with complete access to all relevant information, which I would certainly not count on them doing.

Sadly, this plan does not even allow for any meaningful program-wide review. Members of Congress have neither the expertise nor the inclination to subject the administration's activities to meaningful constitutional review. At least under Specter's plan, a court would have to bless the program as a whole, which would provide some assurance that minimum Fourth Amendment standards were met. I would be shocked if this Senate subcommittee ever spent a single afternoon grappling with the difficult Fourth Amendment issues raised by this sort of surveillance.

In fact, this bill may actually be worse than the status quo. When the presiding judge of the FISA Court first learned that the NSA had been bypassing FISA and conducting warrantless surveillance, she instituted a rule that forbid the government from using any information obtained from this illegal surveillance in its applications for FISA warrants. This was an attempt by the FISA Court to keep the warrantless surveillance program from rendering FISA totally meaningless. If this proposed bill becomes law, it will legitimize these warrantless intercepts and eliminate any legal justification for not allowing evidence obtained through such surveillance to be used to apply for FISA warrants.

The result will be a system that would be comical if it wasn't so Orwellian; the government will be able to use warrantless surveillance to gather the evidence necessary to apply for a warrant. That's exactly like permitting the police to ransack your house and then use the evidence they find to secure a search warrant.

And most significantly, this proposed bill fails to address the elephant in the room: the administration's theory of executive power. According to the Post, immediately after this agreement was reached Scott McClellan "reiterated the position that Bush already has the power to institute the program." In their eyes, that power is far more expansive than what even this watered-down piece of legislation purports to authorize. So why does anyone think they'll abide by its terms? I thought this graphic at Think Progress summed the situation up pretty well.

On a final and somewhat tangential note, the editorial board of the Washington Post reacted to this news in a way that beautifully illustrates the compartmentalization problem I described the other day. The editors at the Post have the following advice for Congress:

The goal should be to modernize the compromise between national security and liberty that FISA represented in the 1970s: to legitimize essential surveillance by law,require judicial review when the targets are U.S. citizens or residents, limit the use of this material to counterintelligence purposes, and ensure that irrelevant material is not retained.

Newsflash: we have "modernize[d] the compromise between national security and liberty that FISA represented in the 1970s." It's called the Patriot Act. Congress renewed it just yesterday, and there was a whole article devoted to it in the Post. As John Yoo wrote in 2003, "the Patriot Act contains . . . common-sense adjustments that modernize existing laws, like FISA." Or how about Bush himself when he signed the Patriot Act: "The new law recognizes the realities and dangers posed by the modern terrorist . . . Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists."

UPDATE (by Glenn): The Washington Post reports this morning on documents which were obtained from the Justice Department by EPIC as part of its litigation against the Bush Administration. That lawsuit -- brought under the Freedom of Information Act -- seeks to obtain critical documents relating to the NSA program.

The disclosed documents reveal that a senior national security lawyer in the Bush Justice Department from 2000-2003, David Kris, was "highly critical of some of the Bush administration's key legal justifications for warrantless spying, saying that many of the government's arguments are weak and unlikely to be endorsed by the courts." He also "concludes that a National Security Agency domestic spying program is clearly covered by a 1978 law governing clandestine surveillance."

This only confirms what has long been known -- that even the Administration's most senior and trusted lawyers in the Justice Department were arguing that the Administration's conduct was illegal. It also underscores, as I said yesterday, that there are still multiple prongs to this scandal which Pat Roberts cannot suffocate, including the lawsuit pending in federal court to compel the Justice Department to disclose documents which will reveal information that the Administration and Congress are desperately trying to keep concealed.

Congress has not rendered legal, and cannot not retroactively render legal, the commission by the Administration of criminal acts. Eavesdropping on Americans without judicial oversight is, without question, a criminal act that was deliberately and repeatedly committed by the Administration. The decision of the Intelligence Committee not to bother investigating that does not immunize the Administration from the consequences of that wrongdoing, and if the Intelligence Committee will not investigate these criminal acts, that does not mean that they won't be investigated and exposed.

UPDATE II: Georgia has a thorough analysis of the Justice Department e-mails which were obtained. The e-mails can be read here (scroll down to the first full paragraph).

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