Congress to Capitulate on FISA

Once again, the House and Senate are on the verge of passing wiretapping legislation designed to sell out the Bill of Rights in order to satisfy the Bush Administration’s domestic and international spying needs. You’d think by now that the Congress would be inclined to ask more questions and take less guff from such a group of failed prevaricators, but if you thought that, you’d be wrong. According to various reports, the Administration will get everything it insisted on, longer periods of spying without court review, exceptions to continue spying even after courts refuse a wiretap, mass surveillance, immunity for telecoms which participated in previous unlawful wiretapping, and complete secrecy about the particulars of the immunity. Americans won’t be authorized to know what we’ve lost, so we shouldn’t be upset, the legislators seem to be saying.

The bill is being touted by Democratic leaders as a compromise, but in its specifics, there’s precious little anyone can say the Bill of Rights walked away with in its favor. The one-week time limit for spying without court review is not exactly ungenerous, but Democratic leaders have chosen to latch onto this provision as showing the legislation enforces the “exclusive” rule of law. The fact that the initial unauthorized time frame for warrantless spying is tighter than the more luxurious periods the Administration initially wanted— and the assertion that the courts have jurisdiction at all seems to satisfy the Congressional leadership. On the other hand, the fact that there are loopholes in the actual court review wide enough to drive a surveillance truck through should certainly calm the spies.

Here’s what Caroline Fredrickson of the ACLU has to say about the new FISA law:

This bill allows for mass and untargeted surveillance
of Americans' communications. The court review is
mere window-dressing –- all the court would look at is
the procedures for the year-long dragnet and not at the
who, what and why of the spying. Even this superficial
court review has a gaping loophole –- "exigent"
circumstances can short cut even this perfunctory
oversight since any delay in the onset of spying meets
the test and by definition going to the court would cause
at least a minimal pause. Worse yet, if the court denies
an order for any reason, the government is allowed to
continue surveillance throughout the appeals process,
thereby rendering the role of the judiciary meaningless.
In the end, there is no one to answer to; a court review
without power is no court review at all.

On the question of immunity for the telecoms, the bill is even more sweeping. Telecoms will be given immunity as long as the Attorney General says they should. What’s more, the judge, who has to accept this assertion can’t release any information about why the AG says the actions against the telecom companies must be dismissed.

Glenn Greenwald has this to say about section 802(c) on telecom amnesty:

… a) the plaintiffs and their lawyers won't ever see the
documents and (b) the court is barred from referencing
them in any way when it dismisses the lawsuit. All the
court can do is issue an order saying that the lawsuits
are dismissed, but it is barred from saying why they're
being dismissed or what the basis is for the dismissal.

Not that it’s likely to do any good, but I’m calling my Congressman today. Maybe readers should as well.

(See Memeorandum for discussion)