Congress and the administration have been scrambling this week to rush through some pretty significant changes to the Foreign Intelligence Surveillance Act, with a surprising disregard for concern about civil liberties. What’s the rush? Why act in haste on something so important?
It turns out, officials knew something we didn’t: part of Bush’s legally dubious surveillance efforts were ruled unconstitutional, setting off a race to protect the program.
A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration’s wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president’s spying powers. […]
The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.
And how did we learn about a secret ruling from the secretive Foreign Intelligence Surveillance Court? “House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court’s decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation.” (Did we really need another example of a conservative Republican unable to keep national security secrets?)
Boehner’s Fox News performance notwithstanding, Anonymous Liberal explains the history of the surveillance programs’ legal troubles very well, before concluding, “Many of us have been saying for a long time now that the legal theories underlying the Bush administration’s surveillance activities are rubbish. We were clearly right.”
Of course, there’s still the matter of what Congress is going to do about all of this.
This NYT editorial offers officials some helpful advice.
Senator Jay Rockefeller, the chairman of the Senate Intelligence Committee, offered a sensible alternative law, as did his fellow Democrat, Senator Russ Feingold. In either case, the attorney general would be able to get a broad warrant to intercept foreign communications routed through American networks for a limited period. Then, he would have to justify the spying in court. This fix would have an expiration date so Congress could then dispassionately consider what permanent changes might be needed to FISA.
Congress was debating this issue yesterday, and the final outcome was unclear. But there are very clear lines that must not be crossed.
First, all electronic surveillance of communication that originates or ends in the United States must be subject to approval and review by the FISA court under the 1978 law. (That court, by the way, has rejected only one warrant in the last two years.)
Second, any measure Congress approves now must have a firm expiration date. Closed-door meetings under the pressure of a looming vacation are no place for such serious business.
The administration and its Republican supporters in Congress argue that American intelligence is blinded by FISA and have seized on neatly timed warnings of heightened terrorist activity to scare everyone. It is vital for Americans, especially lawmakers, to resist that argument. It is pure propaganda.
This is not, and has never been, a debate over whether the United States should conduct effective surveillance of terrorists and their supporters. It is over whether we are a nation ruled by law, or the whims of men in power. Mr. Bush faced that choice and made the wrong one. Congress must not follow him off the cliff.
We can only hope Dems are listening.