As you know, just prior to adjourning for its August recess, Congress caved in to Bush administration pressure and passed the Republican version of a bill amending the Foreign Intelligence Surveillance Act (FISA). Sixteen Democratic senators and over 40 Democratic representatives voted in favor of the bill, ensuring a comfortable margin of victory in both houses. I’m not convinced that these Democrats fully appreciate what it is they’ve done.
I say that because the full implications of these amendments are not obvious from the four corners of the bill itself and it seems to have been intentionally structured (and sold to the public) in a way that obscures its true scope.
The bill has two basic components. First, it creates a carve-out that exempts nearly all international communications (even when one party is in the U.S.) from FISA’s regular provisions (which require individualized warrants, minimization, judicial review, etc.). The second half of the bill then grants the Attorney General and the Director of National Intelligence the power to authorize warrantless surveillance of the category of communications carved out by the first half of the bill. This authority is conditioned on compliance with a series of not-very-rigorous procedures and oversight requirements. The Attorney General and DNI must certify in writing (and under oath) that certain factual predicates have been met, and they must come up a set of operating protocols designed to ensure that only the carved out category of communications are intercepted. These operating protocols are then submitted to the FISA court for review on an annual basis (the court reviews them under the highly deferential “clearly erroneous” standard).
Most of the debate in Congress and coverage of the bill in the media has focused on whether these procedures and oversight requirements are sufficiently rigorous to protect Americans’ civil liberties. They’re not. But that’s more or less beside the point because–and this is what I think many people do not yet appreciate–given the way FISA is structured, the President is under no obligation to follow even these watered-down oversight requirements. They are merely optional.
To understand why this is the case, you need to understand how FISA works. The key provision in the FISA statutory framework is 18 U.S.C. § 2511(2)(f). It’s quite convoluted, so to make things easier, the words you need to read are in bold:
Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
This provision, which has always been a part of FISA, does two very important things. In the first half, it expressly disclaims any intent to interfere with the president’s foreign intelligence gathering powers except with respect to “electronic surveillance” as defined by FISA. The second half–which is often referred to as the exclusivity provision–makes it clear that, with respect to “electronic surveillance,” FISA’s procedures are exclusive, i.e, that Congress did not intend to leave the president with any residual power to conduct this sort of surveillance outside of the FISA framework.
Unlike previous administration proposals, the bill that Congress passed last week left this provision intact. But, and this is critically important, the bill significantly narrowed FISA’s definition of “electronic surveillance.” Here’s what the amendment says:
Nothing in the definition of electronic surveillance under 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.
Thanks to this carve out, many–if not most–intercepted communications between someone in the U.S. and someone in another country (even if that person is a U.S. citizen) are no longer considered “electronic surveillance.”
That means that, pursuant to section 2511(2)(f), the president retains his inherent authority with respect to this sort of surveillance and FISA does not purport to establish the “exclusive means” by which it can be conducted.
In other words, because this carved out category of surveillance is no longer considered “electronic surveillance,” the warrantless surveillance authority granted to the Attorney General and DNI in the new FISA bill is redundant. By FISA’s own terms, the president would appear to retain the power to order this sort of surveillance on his own authority and according to his own terms, subject only to the Fourth Amendment. The procedures and oversight requirements laid out in the bill are therefore optional.
Furthermore, the bill passed by Congress did not amend FISA’s criminal and civil liability provisions, which, like the exclusivity provision, are still tied to the definition of “electronic surveillance.” For instance, section 1809 of FISA makes it is a felony to “engage[] in electronic surveillance under color of law except as authorized by statute.” All of the other punitive provisions are similarly worded.
Therefore, as long as the government is engaged in “surveillance directed at a person reasonably believed to be located outside of the United States,” it cannot possibly run afoul of FISA’s criminal or civil liability provisions, even if it totally disregards all of the procedures and oversight requirements spelled out in the bill. There’s no penalty for non-compliance.
It is imperative that members of Congress and the media be made aware of the full scope of this bill. It is not as advertised. By carving out a large category of surveillance activities from the definition of “electronic surveillance,” the bill effectively exempts such surveillance from FISA altogether. And while the bill purports to establish conditions and procedures for conducting warrantless surveillance, these requirements are effectively optional and, in any case, there is no penalty in the statute for disobeying them. Those lawmakers who voted for this bill need to be confronted with these facts and shamed into doing something to correct the situation.
One Trackback To “Why the new FISA bill is even worse than you think“
1st again?
Please read this NYT article:
Reported Decline in Surveillance Spurred Quick Law
It tells exactly how the Democrats got snookered into passing that atrocity. The House and Senate majority whips aren’t doing their jobs.
watch and listen to them!….Why?….Because I SAID SO!!!…you don’t need to know anything else…JUST DO IT!….bu-bu-but it’s illegal………NOT ANYMORE……DO IT!…..NOW!
don’t forget that our very own Jim Webb voted for it, citing the example of DINO Dianne Feinstein
press release
we are being tracked and traced like human cattle while corporations face no regulations
I would truly love for all the pro-war types who support the eavesdropping/spying powers to realize that the government might be recording each and every pornographic site they visit.
Seriously, someone ought to air this widely: if they support govt intrusion and surveillance, will they gladly acquiesce to the government monitoring their online porn consumption? Connected to their name in a database?
I’d love to see the look on their faces as they would presumably blanch at the idea. And you know the pasty pro-war bloggers probably look at a LOT of it, more than the 90% of guys who occasionally do.
This bill is designed for one thing and one thing only. Create fear and distrust amongst the American populace and to enhance Bushes dictatorial powers.
Intelligence agencies from all over the world, Russia, Israel, France, England, you name it including our own were screaming to Bush all the way up to Sept 11, 2001 something was coming down and Bush Co ignored it.
What further proof does one need it isn’t and wasn’t the intelligence system and warrant system that needed fixing and modifying, it worked perfectly fine, it’s something else that fixing. And we all know what that is.
One might almost conclude that everything is going according to plan.
sigh, how stupid of me to think that when the democrats won - that we’d finally be safe because either of the houses of congress could block the further progress of the neocons. i know, I’m not always correct. I guess it was just desperate wishful thinking on my part.
But now what do we do?!!!
America,
Land of the FreeBut thats ok, as long as we’re safe from da turrists. i have nothing to hide.
Now excuse me while i eat this glue and watch cavuto.
This is just the beginning of the nightmare. Tie this monstrosity with the bringing back of the draft and requiring job seekers to get approval from Homeland Security and you tell me what you’ve got and what it leaves the door wide open for.
I’ve already figured it out. Now let’s see how many more do.
http://www.prisonplanet.com/ar.....807Job.htm
http://www.prisonplanet.com/ar.....7Draft.htm
Someone should inform our elected officials that the Bush administration can’t be trusted. That means before legislation is voted on, those same elected officials should read it.
The House and Senate majority whips aren’t doing their jobs.
I’ve been wondering why the hell Steny Hoyer is in a leadership position at all. Can someone explain?
it is slowly becoming more and more clear just how bad we have been sold out by these democrats. Not being able to pass legislation because of an obstructionist minority is one thing, this is insanely different. The truth emerges, the dems are not conducting themselves this way because they percieve it is what will get them reelected, they are doing it because, fuck you, thats why. This is why I hate when people herald bill clinton and the white-knight democrats. These people have one thing in common, From Tom Delay on down to Stenny Hoyer, they will only behave as much as we force them to. Sick, sick, sick. I AM NOT BAITING!, I am not a republican, I am a human being, an american citizen, and sick of people who let other people do the thinking for them.
Reasonable Person Would Understand This Act Is Unconstitutional
It’s absurd to call electronic surveillance “outside” FISA as “non-electronic.” The Constitution is silent on the means the warrant requirement is violated; only that the courts oversee that a lawful warrant is issued. The President ignores an irrelevant standard; then defines something as not being within or without an irrelevant benchmark. His assertions and OLC positions are without regard to the 4th Amendment. This is clear to even a passive observer. The motivation to make this complicated is to make it appear as though a “reasonable person” would not understand this requirement. This is false: A reasonable person does understand that the 4th Amendment requirement is ignored; and that this Act of Congress is not lawful. The President’s current smokescreen and public discussion on this non-sense is not a credible basis to argue that there was confusion.
FISA can’t trump the Constitution; nor can Congress in updating the FISA trump the 4th Amendment; nor does the President have the power to define something as “outside” something else without being subject to the 4th Amendment.
A Plan Reading of the Act Shows Many Definciencies
I appreciate the analysis above, but it would be helpful if there were some challenges to the President’s arguments. His assertions are not valid; and Congressional statements in the bill are not legally binding nor lawful. If the bill were timely analized, with a detailed breakdown of the various provisions, it would have been clear that there were many “opt out provisions” which still have not been discussed. Moreover, the way the bill is structured, the AG can go back to 1947 and arbitrarily define anything as being a “directive”, and classify that evidence, order, and all subsequent activity.
President and Congress Have No Power To Jointly Modify 4th Amendment
The governing law is the Constitution, not this bill or the President’’s assertion of what he is going to ignore. Start with the Constitutional warrant requirement, not whether the current bill is or isn’t consistent with FISA. It’s all interesting what “electronic surveillance” may or may not be defined as, but this does not mean the 4th Amendment is gone; or that there is no warrant requirement. But this is a meaningless diversion from the 4th Amendment.
Just because Congress or the President say something, or want us to believe something, doesn’t mean that it is lawful, binding, or Constituional. I was hoping for some analysis showing why the President’s application of the illegal warrantless surveillance would be overturned; not a convoluted embrace of what remains unsupportable law. Thank you.
Gonzales can now listen to any conversation or read any email without a court order.
It’s that simple.
How dare you question President Mugabe, I mean Bush!
-GSD
The passage of this bill continues the Republican partys shameless exploitation of 9/11 which has morphed into a broader so called war on terror.This is a perfect illustration of just how much power the GOP was handed on that fateful day.They are still able to manipulate moderates from both parties with impunity.The Dems really are stuck between “Iraq” and a hard place”.
(sorry I couldn’t resist)
I have to wonder if all this wasn’t supposed to go down under Pres. Clinton.
Remember how after the OK City bombing, the first news reports were of “Arab-looking men”? If Tim McVeigh wasn’t so stupidly anti-government and didn’t have a license plate and thus got caught, the U.S. would’ve invaded & occupied Iraq back then.
This beast has been patient for a very long time.
pinkobait @ 18:
yeah, the democrats had no choice but to sign. uh huh.
There’s an old joke that goes “He’s not as dumb as he looks. He couldn’t be.”
Everytime they pass one of these bills that the Busheviks want, we find out later that there are little, often innocuous sounding changes to existing law contained within them.
No one can explain how these changes got inserted or who inserted them, but they turn out to be major departures from the previous laws.
Like the change in the Patriot Act that lets the President appoint new US Attorneys without Senate approval.
Like this change to FISA, which basically guts most of the law.
That’s why the rush to get the bill passed, they didn’t want anyone to have the opportunity to read it carefully.
In Bushspeak, “Trust me” means “Fuck you.”
This is late-stage capitalism eating its own offspring.
myiq2xu Says: In Bushspeak, “Trust me” means “Fuck you.”
I think the Native Americans figured out something to that effect.
And a lot of the rest of the world.
I wonder why we’re so slow?
I have a very difficult time understanding the criminal mind, but I can understand zoology. Parasites kill the host at their own peril.
One of these days there will simply be a line in a large bill that simply nullifies the constitution, the Congress and Judicial branch.
If that hasn’t happened already. These guys are jealous of the powers their colleagues have in countries like China and doing their best to replicate them, while being able to say it’s all “legal.”
Both instances, The Patroit Act and new FISA law, our Congress was either asleep or
just too damn lazy to read all the “small print” before acting…As Mark Twain said:
“Suppose you were an idiot. And supposed you were a member of Congress. But
I repeat myself.”
Now you understand how the 300 richest families in America plus maybe the top 100,000 wealthiest players in this crooked game of financial fraud are systematically stealing the life savings of a whole generation by using greed, pure and simple, ramped up to unbelievable heights.
hadenuf @ 24:
A poorly developed parasite kills it’s host. A well developed parasite will not.
At the third stage of parasite evolution it becomes a symbiote, where the host and parasite become inter-dependent.
This GOP-led government is a poorly developed parasite that is killing its host. The Democrats at their worst were well developed parasites.
Let’s try for stage 3 - a government that flourishes along with the people.
The act is designed to act as a defense for continued illegal Constitutional violations. One objective of defense counsel will be to point to “reasonable confusion”. Their goal is to shift focus from the standard — Geneva or FISA — and point to irrelevant confusion over definitions — whether something is or isn’t torture or electronic surveillance. This defense has no merit. A reasonable person would clearly know the objective of the government wasn’t to provide lawful guidance, but to muddy teh waters, leaving contractors and US government officials left holding the bag.
Specifically, note the similarity between the way this argument is crafted over FISA and the torture issues. As with Geneva, the Constitution is a clear requirement; yet, rather than refuse to abuse, the President asked the public to focus on “confusion” over whether something is or isn’t torture. The definition of torture is meaningless; the Geneva standard is abuse. The photos show there were war crimes. That the treatment was or wasn’t “torture” is irrelevant. Similarly, the WH and EOP hopes to create confusion over illegal warrant violations. Again, rather than focus on the Constitutional standard and the warrant requirement, the President and Congress are pointing to “Confusion” over whether something is or isn’t surveillance or related to electronics. As with Geneva, the Constitution is the standard; the 4th Amendment requirement remains in tact; and whether something is or isn’t electronic surveillance is meaningless for purposes of the 4th Amendment.
Be wary of the Congressional-Presidential assertion of what they say is or isn’t reasonable. Their goal doesn’t appear to be to clarify anything, but to create non-binding assertions about what the law is or isn’t to keep Corporate CEOs connected with illegal warrant violations appeased. Don’t take the bait. Orders by the President about “authorizing” prisoner mistreatment or any warrant violations are not lawful. The public is well advised to see the real objective: Congress and the President know they have a war crimes-Constitutional defense problem on their hands. Rather than provide lawful leadership, they hope to illegally induce DoD contractors to continue doing what is illegal. These orders are not lawful. Follow them at your own risk.
hadenuf @ 23:
Because up to now we’ve not experienced what it’s like to be a target of this gov’t, Native Americans know full well what it means.
Buckle up.
Perfect Host, meet the perfect parasite.
You see your honor, because I was having an affair with my next door neighbors wife it was reasonable for me to believe that he meant both of us immanent bodily harm this morning when I saw him open his mailbox. That’s why I shot him.
It was 41 repsenatives not 40 that caved it.
The American people get what they deserve.
They elected Bush to a second term in 2004, because they felt
that John Kerry just wasn’t up to the standard that Bush has set.
America is a pretty dumbed down nation these days.
I have put together a plainspeak legal primer on the fisa which covers many of these and other nuances, pulled from various sources like yale law, brennan center, aclu, etc.
It is on our new site, Plural Politics, here
I will add a link to this post as well.
Arroyo @ 33:
As I have said on other C&L Theads, bush-lite was not elected either time: 2000 he
was annointed/selected by S/C and in 2004 the State of Ohio was “stolen” by Repig
fraud.
carol @ 11:
Don’t think they’ll bring back the draft. They’ll collar kids under the softer-sounding National Service is my GUESS. We’re in deep trouble but what you’re doing is fear mongering, meaning your high-pitched screeching is assisting with the same tactics as the WH. You’re doing their job for them.
None of these things have happened and so they are not REAL or EFFECTIVE.
Prison Planet is garbage. No dates, no fact-checking, no references, and so crudely written it’s embarrassing.
Time is better spent at solutions than what looks like a cheap attempt to lasso reality.
The justifications given by the Bush Administration do not warrant usurping the First and Forth Amendments to the Constitution. In other words the fucking law is unconstitutional. Let the arrests begin. Unfortunately, it may be necessary to impeach a couple of Supremes since Bush has stacked the judicial deck. Failing that, it may be time to march in support of the Constitution.
yea? well? what are you going to do about it?
I’m tired of reading about these crimes without there ever being even a “call your local senator and house members” at the end. It’s just sour grapes. “did you hear about such and such doing so forth?”
I appreciate the journalism but if this is to be an activists blog (which it poses to be) then how come theres never any battle plans drawn to compete with these acts of aggression against us?
is the new FISA bill retroactive ? anyone ?
krob @ 40:
yes.
old hack @ 39:
Because it isn’t. It’s a Dem blog, supporting Dems almost 100% of the time. If it’s anything to show ReTHUGs negatively, it’s on here. If it shows Dems negatively, it’s on here, then the next posting explains how to vote Dem, they are the true saviours of America. Then some posters will attack you and call you a troll or a paid shill for ReTHUGs if you don’t buy the “Dems will save us” koolaid. Or, the site monitor will “edit” you and say “don’t like it, get your own blog”….