Court ruling leads to FISA scramble

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.

Bottom line: Bush & Co. are criminals trying to cover their collective asses.

  • The thing not mentioned is why did the regime hold back on this legislation til the past possible minute? If it’s so crucial to our national security, why go at it haphazardly with a last minute, slapdash effort?

    Rockefeller and Feingold have this right. If Bush wants to slip something of this magnitude though at the last possible minute, give him a stopgap until the entirety can be reasonably considered.

    Wingnuts and radio screech monkeys will no doubt howl, but the real question is this: If it’s so damned important, why did the admin put it off til the last possible minute.

  • Sweet Jesus on a cracker!

    1) Boehner goes before the ethics committee and explains why he should not be jailed for leaking national security secrets
    2) Dems block everything that even looks like Bush’s FASA/wiretapping/bullshit
    3) Impeach them all

  • Since when is the constitutionality of our laws determined in secret? American Democracy and our Constitutional Republic have been hijacked by a Private Corporate Cabal!

    I read that emigration to Canada from the United States is at a 20-year high –it’s no wonder. But then, at this rate, Canadian sovereignty isn’t going to last much longer either.

  • We’ve diminished.

    We successfully stared down the specter of Communism, including an entire
    block of rogue states with actual weapons of mass destruction, with FISA.

    As our local religious extremists frame it, though, we can not afford the
    time-wasting, namby-pamby oversight of FISA, or a couple hundred dead-
    ender foreign religious extremists on the other side of the world will follow
    us home and take over.

    Do the authors of this claptrap have no historical perspective, or do they simply
    bank on the rest of us not having it?

  • Was Boehner weeping when he gave up this classified information for all to hear? Will Boehner feel any legal response to his loose lips moment? And, why does this Administration keep moving the goal posts – soo not like a well running democracy? As I watch the political goings on in DC, I am often reminded of the sheer contempt this WH has for our political heritage. Jennings testimony yesterday was buffoonery plain and simple. Yes, executive privilege is the new form of taking the 5th, so these bozos can try not to incriminate themselves. Talk about the cockimamy 21st century efforts of getting do overs and redos. This Adminstration is not only an embarrassment, it is down right anti-democratic. Again, they are only destroying democracy, but they think once it is destroyed, they will be able to save it – talk about a bunch of necromancers! -Kevo

  • Would it be too much to ask that the legal geniuses who pushed the “rubbish” legal arguments be removed from their positions to futher inflict injury on the constitution?

    If this administration can’t even demote or remove the lawyers who thought garbage legal arguments were fine, then they are the problem and Congress should remove the lot of them.

    To leave criminals in charge, deliberately, is criminal in itself.

    BTW, last night on the NewsHour Jim Leherer interviewed Pelosi, and she reiterated her position that impeaching Bush is “off the table” even after all his blatant lies to cover up the politicization of the justice department, she wouldn’t even support impeaching Gonzales.

    I would like a Speaker of the House who will uphold the law, please.

  • Here’s the relevant passage from the PBS interview:

    JIM LEHRER: Do you believe Attorney General Gonzales should be impeached?

    REP. NANCY PELOSI: I called for Attorney General Gonzales’ resignation. I think he should offer it, and I think the president should accept it. I think that’s the proper route to go.

    JIM LEHRER: Not to move to impeach him?

    REP. NANCY PELOSI: Well, there are those who think that that is a good use of Congress’s time. I wanted to get through our legislative work. I think he should go. I think it should be clear to the president. It’s as clear to me as Michael Brown in Katrina: This is the wrong person in wrong job at the wrong time.

    JIM LEHRER: Do you have a theory or a thesis about why he is still attorney general?

    REP. NANCY PELOSI: Well, I don’t know. There are all kinds of theories about it, but fact is, I don’t know why he’s attorney general in the first place, so I can’t really tell you why he’s still the attorney general.

    JIM LEHRER: But as a practical matter, any impeachment against Attorney General Gonzales would have to begin in the House. And you’re saying it isn’t going to happen, correct?

    REP. NANCY PELOSI: There are those who are introducing it. It’s up to them to see what the prospects are for it. But as I have said with the President Bush, who there’s a wide — a big tide in the country for his impeachment, that it was off the table.

    We had business to attend to regarding the health and education of our children, the economic security of their families, the national security of our country, the strength of our economy, and I wanted to focus on those issues.

    http://www.pbs.org/newshour/bb/politics/july-dec07/pelosi_08-02.html

    I think the Republicans must love Nancy Pelosi. He’s raping the constitution in broad daylight, and she’s worried about passing legislation that he’s just going to VETO? What a fucking idiot.

  • thanks for the quote, racerx.

    earth to nancy pelosi: with republicans blocking every bill that moves, you’re not going to get any legislative work done anyway, so why not move on to impeachment and try to solve the problem?

  • Just a point of clarification. You write that the program was ruled unconstitutional. I think you mean that it was ruled illegal — i.e. that the program violated FISA. The Post article says nothing about a ruling on the constitutionality of the program, only the program’s legality.

    If the program did violate the constitution, it could not be made constitutional by amending FISA. It could only be made constitutional by amending the constitution or changing the program.

  • Well, if we can’t impeach any of these gangsters, maybe we can extradite some of them to a nation with principles; a nation that will be willing to have a real War Tribunal.
    After Bush et al have been convicted, we can watch their hangings on YouTube, ala the Saddam lynching.

    (i fully expect this comment to be censored as my similar comments have been censored on most major so-called “leftie” sites.)

  • BTW, i really liked the old format because it loaded fast over dialup.
    Because of a lack of Government Regulation, there is no access to cable or DSL broadband where I live.
    Another reason to get rid of the dead skin that runs this country.

    The new format does not seem to load as fast, but I’ll reserve final analysis till I have more experience with it.
    The look is OK, The old look was OK too.

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