*In an editorial last year, the *New York Times likened the Bush administration's efforts to retroactively make its warrantless wiretapping program legal, to a person caught speeding who persuades the legislature to raise the speed limit. The new surveillance bill
President Bush signed into law
Sunday takes this analogy to its logical extreme: Where government surveillance is concerned, the new law eliminated speed limits altogether... The
Foreign Intelligence Surveillance Act is now dead, and it's never coming back...
To be fair, there were compelling grounds for changing FISA. As originally drafted, the law required spies who wanted to eavesdrop inside the United States to obtain a warrant. When it came to intercepting purely foreign communications, they could do what they liked—FISA didn't apply... [A]s telecommunications—and especially the Internet—evolved, a communication between, say, Paris and Karachi, might actually be routed through the United States and thus become off-limits to government agents without a warrant. This was the so-called "surveillance gap," and the White House—not unreasonably—wanted to close it...
Closing the surveillance gap should have been fairly simple.
All you needed was an amendment to FISA that redefined "electronic surveillance" in such a way that it would permit U.S. intelligence to access foreign communications as they transited through this country... [and] introduce [some] oversight mechanisms [to curb these new powers]...
[What Congress passed instead] was a bill with all of the new surveillance powers, but none of the oversight mechanisms to check it... The FISA court will not examine warrant applications on an individualized basis. Instead, it will simply grant programmatic approval to the whole operation. It is the director of national intelligence and the attorney general who will authorize the interception of these communications, and—enshrining a laughably deferential standard of review—the FISA court can quibble with their judgment only when the rationale for wiretapping is "clearly erroneous..."
Best of all, there's no longer an audit of abuses by the
DoJ's inspector general. Instead, Congress will receive an update on that twice a year from none other than the attorney general—the very individual who, even as this legislation was being prepared, was exposed as having denied, under oath, the existence of surveillance abuses by the FBI.
So, in one fell swoop, the bill dramatically augmented the domestic surveillance capabilities of the federal government and hobbled the few mechanisms that might have kept that new authority from being abused.
It gives with one hand, and then gives with the other.
