Sunday, February 26, 2006

FISA gutted to protect the President?

Balkinization asks "Mother of Mercy, Is This the End of FISA?!," as Senator Specter proposes a law that, rather than addressing the legality of the current system, would simply let FISA warrants be issued for anyone at all:
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)!
How many people are there who have no probable chance of ever talking to someone who has talked to someone who might have called another country or had communication with some bad person. (Foreign agent and foreign power are defined in FISA, and Congress already broadened those definitions after 9/11).

And even if such a person existed, what is there to prevent the President from using this new law as toilet paper once he's done with the FISA that already exists?

This is why the Roots Project needs to stay focussed. This isn't yet about what FISA should look like, because right now, FISA doesn't exist for the President or the NSA. Congress doesn't exist as far as the President is concerned. If he wants something wiretapped, he'll do it and Congress be damned.

So the first thing that has to happen is that Congress has to clarify that they have a role to play. This is what Specter promised to do, to put forth a law that would force the FISA court to hold hearings on the warrantless wiretapping and find it legal and Constitutional or not.

Once we have a clear rule established, and Congress implements some sort of oversight to keep the President from ignoring yet another coequal branch of government, then the balancing act comes in.

Interpreting polls is tricky, but the consistent message we're getting from polls on the warrantless wiretapping is that views are inconsistent. People are poorly informed, which isn't surprising given that no one who knows anything about it wants to explain anything meaningful (Leahy: "I'm sorry Mr. Attorney General, I forgot you can't answer any questions that might be relevant").

There is one consistent signal. When people think there are safeguards to restrict the program to "terrorist suspects," they don't have a big problem with it (and I bet some of the people opposed understand that a warrantless program cannot guarantee restrictions to just terrorist suspects). When people are presented with a warrantless program listening to "Americans" or "American citizens," the program is unpopular. So when Congress decides to assert itself, it needs to pass a law that allows surveillance of terrorism suspects, and protects regular citizens from surveillance.

Luckily, such a law already exists. It's called FISA, and it won the Cold War for us. Let's give it a chance.