slip sliding away

I remember how relieved and excited I was back when the Dems re-took Congress. Despite the narrow margin I felt relatively sure that we would have at least a chance at reversing some of the inane as well as criminal maneuvers by the current administration and if not, that we would at least stop the bleeding long enough to get us to the '08 election. Perhaps even some civility might return to politics. Well in my defense, artists are prone to dreaming.

Of course the Pelosi/Reid Congress has done better than the diseased body of DeLay/Frist and they get credit for moving important measures forward. I can even be realistic about the battle they have in changing the course of the war. Ramming through legislation like that is never easy - just ask the Christian Right, who have been trying to overturn Roe v. Wade for 4 decades. Getting the procedures and the votes is painstaking and at best a shifting sand.

Now however I have to give this group an F - for FISA. How can a majority party cave to a president who's approval is around 26% (who is not seeking re-election!) and grant unprecedented legal powers to an attorney general that is on the cusp of censure/ impeachment?? This same Congress has been in hearings for weeks to basically remove this man and now his illegal spying program is made legal by the very same body? Breathtaking - and disgusting.

In case you have not been following, here are the basics behind the argument to revise FISA - beyond the "protect America" rhetoric.

This essay argues that the Foreign Intelligence Surveillance Act should be restructured to account for changes in communications technology and Fourth Amendment law since FISA's enactment in 1978. FISA reflects the person-focused assumptions of 1970s-era technology and constitutional law. At that time, foreign intelligence monitoring necessarily focused on subject identity and location. Although some modern investigations track this traditional approach, many do not; investigations involving packet-switched networks often start with data divorced from any known person or location. FISA should be amended to create two distinct authorities for surveillance: data-focused authorities when the identity and/or location of the subject are unknown, and person-focused authorities when the identity and/or location are known. A two-pronged approach can best implement the goals of foreign intelligence investigations given the realities of modern communications networks.

Imagine that the government has reason to believe that an Al-Qaeda cell uses a particular Internet service provider in Kabul and a particular type of software to communicate about a terrorist plot targeting the United States. In this case, the government has probable cause to believe that monitoring the ISP would uncover terrorist intelligence information. But how broad can the monitoring be? Can the government look at all of the traffic coming to or from that ISP in Kabul? Or can it only look at traffic to or from that ISP that uses that particular software? Or only some specific portion of the traffic from that ISP using that software.

-Orin S. Kerr

The Administration has taken this position that it is hamstrung by FISA do to technological advances since the late 1970's, and that is why it had to break the law in the first place for it's domestic spying program. The previous law insisted that any administration get a FISA Court-approved warrant to eavesdrop on communications and the point was to keep oversight of such activities in order to prevent the abuses that the CIA had become associated with by mid-70's. Somebody to watch the watchers.

So thanks to another rush-job by Congress, ala Patriot Act 1 and 2, the president now has the ability to not only eavesdrop on foreign communications without a warrant but also domestic communications. The new bill appears to go well beyond the "tweaks" Bush sought.

How bad is the new law?

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government's ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

....For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.'s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

"It's foreign, that's the point," Mr. Fratto said. "What you want to make sure is that you are getting the foreign target."

....The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court's only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.

- NY Times

I think we can all read between the lines on this one. All that is needed from now on is "significant purpose" - not terrorism mind you - "significant purpose". No court is needed, someone just claims "sp" and approves it, done, no oversight and your privacy trampled. This is shattering stupidity, and criminally colossal with regard to potential misuse and incompetent implementation.

Our Congress has failed us and once again proves that it does not understand its constitutional authority.


POSTNOTE:

Here's a great take on the cave in or chess match if you will over FISA. Obsidian Wings
Also this from Balkinization.


image: Brueghel the elder