Minor Amendments to Specter Bill Get Craig, Murkowski, Sununu Support:
The Washington Post reports that some very minor changes to the Specter NSA surveillance bill have persuaded GOP Senators Larry E. Craig, John E. Sununu, and Lisa Murkowski to support the bill. This is a major victory for the Administration, as the changes — at least described by the Post — all seem to me to be symbolic rather than substantive. None of the amendments would actually change the powers that the bill transfers to the Executive branch; based on the Post's description, the changes seem to be wordplay that wouldn't really alter what the bill does. The Post story ends: "A White House spokeswoman said the administration is pleased with the agreement." No doubt.
Bruce Hayden (mail) (www):
I am not sure about the actual wording of the changes, but the WaPo reporting of such would appear to me to put the law almost back to where it is right now as to the important issue of when a warrant is required. Currently, for surveilance outside the U.S., a warrant is required for targetting a U.S. Person in the U.S. But if the surveilance is w/i the U.S., then a warrant is required if a party is w/i the U.S., regardless of targetting and legality being here. The current Senate bill would seem to apply the out of country surveilance standards to surveilance of international calls done w/i the U.S. But the WaPo summary of the changes would seem to move back towards the current situation, with targetting being irrelevant, but possibly with a requirement for a warrant if a U.S. Person in the U.S. is being surveiled.

Part of the problem with this new proposal would seem to me to be that the burden of showing that someone in the U.S. being surveiled (even if not targetted) was not a U.S. Person here. That sounds good in theory, but in practicality, it means that if someone is here in the U.S., then a warrant would most likely be required - which gets us back to about where we are right now. Right now, a warrant would be required if one person in an international communications is in the U.S. In the new version, that would apply unless they could show that the person here was not a U.S. Person - all presumably w/i the 3 day (or proposed 7 day?) Emergency Orders time limit.

I am assumming that the change in the WaPo article from U.S. Person to U.S. Citizen is either a mistake on their part, or on the part of the Senators. It makes little sense to me to exclude legal aliens from whatever citizens get here.
9.26.2006 3:55am
Tracy Johnson (www):
I wonder what dirt the prior NSA collection had on them to get them to support the bill? (Hehehehe.)
9.26.2006 10:16am
Previous trial and acquittal is one of the few absolute defenses before an international tribunal for war crimes. So on the bright side for the liberals, by removing US court jurisdiction, the Bush team thereby also ensures they cannot be acquitted in US court.

Good protection short term for those currenly in power; possibly a REAL bad idea in the long term, both for them and for the independence of the US in the future.
9.26.2006 12:33pm
Just an Observer:
My surmise is that the changes negotiated by Sens. Craig, Murkowski and Sununu are reflected in an amended version of Spoecters bill contained in a separate bill introduced by the Senate majority leadership (S 3931).

I have identified language in S 3931 roughly resembling each of the three changes Craig described in his press release. There also is a New York Times story.

Of the three changes they mention:

1) The one about executive authority is essentially meaningless. The amended bill still guts the core provision of FISA making it the "exclusive means" for such surveillance.

2) The added detail requiring individual warrants once targets within a court-approved, general program are identified sufficiently could be significant, I think. (But see magic asterisk * below.)

3) There is an addition to the minimization requirement putting a 7-day shelf life on U.S.-originated communications intercepted without a warrant within such a program, which could also be significant, I think. (But see magic asterisk * below.)

* Magic asterisk The overriding problem is that the two additional, detailed restrictions are optional because:

1) All of FISA's procedures are optional for the President once the "exclusive means" language is repealed.

2) The new procedure for seeking FISA court approval for a whole program of surveillance is itself optional. Neither the current President nor his successors are bound to seek such approval in the first place.
9.26.2006 12:34pm
Anderson (mail) (www):
That's quite an asterisk, JaO!
9.26.2006 2:49pm
eddiehaskel (mail):
All of this speculation is wonderfully lawyerly, but isn't any one at all concerned that (a) this compromise is simply a sham (what did either side give up) and (b) most importantly, that fundamental rights are being tossed out the window.

Expanding this to the detention side, if any one is determined by the president to have provided support to a terrorist (and we know that in certain elected officials' minds simple membership in a political party or expressing an opinion is aiding and abetting the enemy), that person, even if a US citizen, suddenly is stripped of all of his rights and has no recourse at all.

Does this bother what's left of the libertarians who come to this site?

Can this sort of genie ever be returned to the bottle
9.26.2006 3:13pm
Far be it for me to question the subject material that a blogger chooses to write about, but given that this is a serious libertarian law blog, WHY IS THIS THE ONLY POST (that I can see on the page today) ON THE CURRENT BILLS?

No discussion is warranted?


Orin? Eugene? Have Balkinization, National Security Advisors, and Kenneth Anderson said all there is to say?
9.26.2006 3:25pm