March 09, 2006

Maybe I'll Go Back To Sleep

I realize I've had my head down recently (dissertation), but I surfaced just long enough to see this NYT story. Last I checked, the Administration was spying on Americans without even a FISA warrant. This violates both FISA and some parts of the Constitution. The Administration was defending this "terrorist surveillance program" by claiming (A) that the AUFM that Congress passed in late 2001 gives Bush the right to fight terrorism anyway he wants, (B) Bush's Constitutionally mandated powers as Commander-in-Chief give him the power to order the executive branch to do anything he wants in wartime, and (C) most of the Constitution is optional anyway (I think I'm kidding on that last one, but I'm not sure).

I sorta figured that Bush's attitude and somewhere-between-surprising-and-illegal interpretation of the AUMF and Constitution would cause a fight between Bush and Congress. You know, "checks and balances", "separate but equal branches of government", "Congressional oversight" and all that.

So I was somewhat surprised to find the above-linked NYT article, which states (in clear black and white) that Congress and the President had found a peaceful solution:

The Republican proposal would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was "probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization," according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court.
But after 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant.

So, if I read this correctly:

Old FISA law: Can spy on Americans for 3 days without a warrant; then must go before FISA judge (in secret) to get warrant. Must inform Congress of all intelligence activities (per the 1947 National Security Act, which created the CIA among other things).

This law (actually passed by Congress, and signed by the President) has been replaced by an "agreement" (not passed by Congress, or debated in Congress, or even debated with Congressional Democrats on the Intelligence Committee - just given to them and told how it will be from now on).

New "Agreement": Can spy on any American for 45 days, then must go to FISA judge to get permission, or go to Congress and explain why they didn't go to FISA to get permission. Implicitly argues that all previous spying (which, on the face of it, seems to violate FISA, and - hence - the law) was fine, since no part of Congress will hold public or private hearings on the issue.

Uh, how is the New "Agreement" better than the old FISA law? Am I missing something here? I mean, as best I can tell, the order of this is (1) President violates law (spying on Americans without warrant); (2) This becomes public; (3) Congress makes threatening noises; (4) Congress decides solution to Presidential-law-breakage is to ignore the actual law and gives President permission to continue doing what he was already doing (which the President claims he doesn't need Congressional authority to do anyway).

Am I confused, or did Congress just avoid a constitutional fight by, basically, closing their eyes and saying "Violation, what violation? We didn't see any violation?"

I think I should go back to sleep.

Posted by baltar at March 9, 2006 12:13 PM | TrackBack | Posted to Free Speech | J. Edgar Hoover | Law and the Courts | Liberty | The Ever Shrinking Constitution

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