Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Monday, June 23, 2008

Unwarranted Wiretapping

So, Congress has buckled to the President at last. Or rather, the President's pitch that he needs warrantless wiretapping to get "bad guys" has proven to politically potent to resist. The bottom line is that Democrats didn't want to give the GOP this weapon headed into the Fall election. It's cowardly and shows a lack of moral principle, but we've come to expect that in the war on terror from both sides. Most people will never understand why there should be judicial checks on the power of good cops to get bad guys, and Hollywood doesn't help.

The bill, at least, provides some minor safeguards. Before getting immunity, a phone company must prove that it received a statement from the executive branch in writing that cooperation would be lawful. A federal district court must review the documents to see if they fit the bill. As a matter of legal doctrine (estoppel) that's not a terrible law. According to CBS the new law requires the following:

-Require FISA court permission to wiretap Americans who are overseas.

-Prohibit targeting a foreigner to secretly eavesdrop on an American's calls or e-mails without court approval.

-Require the government to protect American information or conversations that are collected when in communications with targeted foreigners.

-Allow the FISA court 30 days to review existing but expiring surveillance orders before renewing them.

-Allow eavesdropping in emergencies without court approval, provided the government files required papers within a week.

-Prohibits the president from superseding surveillance rules in the future.

The latter point is the critical one. It sets the record straight that the President must use this FISA process. I know, I know - the amnesty provision for his previous violation neuters this. But it's a start. I'm still upset, but not so much now that Bush is going away. Under an Obama administration they can fix this.


Raised By Republicans said...

The other question that Bob raised was about Obama's role in getting this passed.

I don't really know. My impression of watching this from afar is that Obama's was a sin of omission here. He failed to stand up against it, given his leadership position in the party he might have succeeded in killing it.

But unfortunately from what I gather, the Demcorats in Congress didn't need a whole lot of whipping on this one to get the thing to pass. A lot of the leadership was backing it and really have to wonder what would have happened if Obama had been taken from the equation altogether.

I agree with LTG on this that they were calculating that it would be better if this weren't on the table in November. It's a shame. I fear it will, as the vote in favor of the war did for Hillary, eventually come back to bite them in the butt.

Bob said...

First, thanks for posting about this, regardless of whether it was in response to my request or not.

Second, I've expressed my frustration here. If for some reason, you desperately need links to Glenn Greenwald, there are several there.

Third, either the political parties actually represent different principles and approaches to government, or they're effectively two different football teams. Taking issues "off the table" means refusing to assert principle, on the presumption that your football team is more popular as long as there are no meaningful differences between the teams.

One could argue that the Democrats (and the Republicans too, though they're going to be less important) are split into principled ideologues and ambitious pragmatists. (Obviously there's a spectrum, but I theorize a real schism is developing.)

_If_ Obama is generating excitement and support from an ideological base, then cynical moves like this one risk alienating those supporters. In a sense, the Dems might end up with too much electoral success -- if the GOP doesn't provide enough opposition to rally against, the ideologues will become frustrated with the pragmatists effectively becoming GOP proxies.

This is true whether Obama didn't stand up in a meaningful way against this bad law because he is more pragmatic and less principled than I thought, or if he's firmly ideological, but was compelled by the reality of working with the pragmatists in his party.

While I agree with LTG that "Under an Obama administration they can fix this", whether they actually do or not might convey a lot about which sort of Democratic party will be in power.

The Law Talking Guy said...

Bob, it's worth reminding us all at this point of the job of a "majority whip." That person's job is to muster sufficient numbers of votes in the majority party to do what is considered practical. The remainder are permitted to vote their conscience. In such whip votes, freshmen get dragooned and more senior ones get to exercise their consciences. Politics, as we know, is the art of the possible.

Obama made the same calculation the rest of his party did: to ignore this issue for now. It's not a principled stand that I'd like, but what can you do? The worst outcome for Obama was to take a principled stand while his party did not. That would make him look more liberal than his party and fail to block the legislation. so I get it.

Dr. Strangelove said...

This letter from the ACLU to the House of Representatives regarding this bill (H.R. 6304, the FISA Amendment Acts of 2008) spells out their objections to this bill in what I would imagine are the strongest terms:

(1) This bill effectively grants immunity to all telecommunications companies who participated in the administration's prior illegal program. The companies need only show that they received government certification for the program, not that this "certification" was legal--and it is more-or-less public record now that all telecommunications companies involved were sent such certifications.

(2) This bill permits mass surveillance of all communications into and out of the US. While the intended targets of this eavesdropping must be non-US citizens overseas, and there is a general ban against twisting this process to "reverse target" US citizens at home, the secret FISA court reviews only the general procedures for targeting and use of collected information. Communications of any given US citizen may be overheard repeatedly in the course of this process, and the law provides no clear threshold beyond which the administration must seek an individualized warrant against that citizen.

(3) This bill significantly dilutes the power of the secret FISA court. An emergency loophole permits the administration to adopt any process for a week before seeking court approval, and even then the administration may continue its program throughout the entire appeals process. Furthermore, the administration may keep and use any information obtained by this process, even if it is ultimately deemed to be illegal.

As for me, I am only on board with their third objection. I am sounding a contrarian note here. I accept that retroactive immunity is a practical way of moving forward, given that there was a gray area here. I also accept the program of mass surveillance of communications into and out of the US instead of the alternative, which the letter leads me to believe would be little or no such surveillance at all.

What bothers me is the lack of the threshold in objection 2, and the ability of the administration to continue a surveillance program during the appeals process when it has been denied by the secret FISA court. Those provisions eviscerate meaningful protections. I hope those details can be tightened up with future legislation.

Raised By Republicans said...

I believe the Senate is scheduled to vote on it today. So we'll see what Obama does this time around.

I hear that Senate Majority Leader Reid and several other senators remain opposed. If the Democrats hold firm in the Senate this will like blow over by November.

Unless of course McCain gets his wish and we suffer another terrorist attack between now and then.,0,5299405.story

Dr. Strangelove said...

To be fair, McCain's senior advisor merely gushed about how another major terrorist attack would be good for McCain's campaign... The man did not say he wished for such an attack. In truth, I have also said pretty much the same thing about the likely political effects of another major terrorist attack. But then again, a campaign spokesman really should know better than to publicly muse on the benefits of terrorism.

But back to the surveillance bill... Actually, um, I hope this issue does not blow over. I think we ought to implement the immunity and surveillance provisions in this act. I just think we also need to add the warrant threshold and give more teeth to the FISA oversight, as I said in the last paragraph of my previous (lengthy) comment.

The Law Talking Guy said...

I'm guessing there's a pretty good correlation between Democrats in the Senate either not up for re-election or in safe seats and their willingness to oppose this bill.

The bottom line is that unless each request to wiretap is presented at some point in time to a neutral judicial body, there will never be a sufficient incentive for the executive to be honest about it.

Raised By Republicans said...

Of course McCain said something very similar in 2004 and again when Bhutto was killed during the primaries.

He has a pattern of politicizing terrorism to his advantage.