Administration Seeks More Surveilance Authority:

Today's Washington Post reports that the Bush Administration has asked Congress for greater authority to conduct surveillance of foreign citizens and international communications.

Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. The White House proposes expanding potential targets to include non-citizens believed to possess, transmit or receive important foreign intelligence information, as well as those engaged in the United States in activities related to the purchase or development of weapons of mass destruction.

The proposed revisions to FISA would also allow the government to keep information obtained "unintentionally," unrelated to the purpose of the surveillance, if it "contains significant foreign intelligence." Currently such information is destroyed unless it indicates threat of death or serious bodily harm.

And they provide for compelling telecommunications companies and e-mail providers to cooperate with investigations while protecting them from being sued by their subscribers. The legal protection would be applied retroactively to those companies that cooperated with the government after the Sept. 11, 2001, attacks.

Baron Greenback (mail):
So... do you have an opinion on this?
4.14.2007 10:53am
Just an Observer:
When it comes to amending FISA, the devil is usually in the details. It would be useful to be able to read the proposed legislation, which the Post story describes it as an administration draft.
4.14.2007 10:53am
M. Lederman (mail):
Thanks to Lyle Denniston, here's the draft bill.
4.14.2007 11:53am
Just an Observer:
As M. Ledreman notes, SCOTUSblog has the text of the adminsistration proposal, which contains many sweeping provisions not described in the Washington Post story.

Lyle Denniston's analysis focuses on the court-stripping provisions, similar to those extant in Congress last year. These provisions could bar ordinary federal courts from hearing challenges to foreign-intelligence eavesdropping, shifting the venue to the secret Foreign Intelligence Surveillance Courts. (In one such challenge, now pending on appeal before the Sixth Circuit, the government's so-called "Terrorist Surveillance Program" was held by a district court to be illegal and unconstitutional.) The legislation also would immunize telecom firms from lawsuits such as several now pending against them.

The draft also includes fundamental changes to FISA's definitions section, which drives the whole statute and determines its scope. Similar changes failed to pass Congress last year, although they did pass the Republican-controlled House. Orin Kerr analyzed some of that definitions language here last year.
4.14.2007 12:15pm
M (mail):
Well, I'm sure that the Bush administration would use these powers sparingly and reasonably, acting with restrain and a high degree of professionalism, just as they have in every other area. Or something.
4.14.2007 12:17pm
This doesn't sound likely to pass Congress, and the
Administration must realize this.

Sounds like a "Democrats-love-terrorists" ploy to me,
perhaps to move public attention away from other...
successes... that are in the news lately.
4.14.2007 12:29pm
Anderson (mail) (www):
Funny how, even now, terms like "secret courts" make me stop &wonder what the hell has happened to this country.
4.14.2007 1:07pm
King Charles I (mail):
Look, if England America can't have secret courts with secret evidence then the Puritans terrorists will have won, it's that simple.
4.14.2007 2:00pm
Tillman Fan (mail):
I thought that the Bush Administration believed that it had the inherent authority to do whatever it wants in the area of "national security," and in particular with respect to foreign intelligence gathering. Why does it need to ask Congress for statutory authority?
4.14.2007 2:56pm
msk (mail):
Aren't all forms of websites, broadcasts, and newspapers potentially (and usually) international communications?

Hypothetically, if crime-associated people read your blog, or shop at your online store, or walk past a telephone pole in your neighborhood and stop to read stapled-up "lost cat" posters, does that tar every other person who passes the same spot with the same brush?

I'm too scared to show any interest in tne answers.
4.14.2007 4:14pm
Cornellian (mail):
Considering how badly they've misused the authority they already have, I can't imagine why Congress would want to grant them any more.
4.14.2007 4:21pm
Just an Observer:
FYI, here is the NY Times report on the administration proposal: Legislation Seeks to Ease Rules on Domestic Spying.

The story includes some skeptical congressional reaction, including that from Sen. Specter. After carrying the administration's water last year in a failed effort to gut FISA, Specter now reverts to his favored public persona as a watchdog.

In any event, it is difficult to imagine the current Congress adopting this draft. Some of these proposals were contained in Rep. Wilson's bill that narrowly passed the House last year. The Times says the White House "did not endorse" it, but DOJ and intelligence-agency witnesses testified openly and favorably about the "modernization" proposals. Some of those same provisions were also included last year in Specter's bill, which he negotiated with Bush and Cheney.

What is different politically today, aside from the obvious change of partisan control of Congress, is that there no longer is a political case to be made for urgency as was claimed last year before the elections. The bills last year also would have legalized the "Terrorist Surveillance Program," which AG Gonzales now says has been discontinued because the FISC court has approved surveillance under existing law that meets the government's needs. Another factor right now, of course, is that Gonzales is regarded as a dead man walking.
4.14.2007 4:37pm
AntonK (mail):
"...the Bush Administration has asked Congress for greater authority to conduct surveillance of foreign citizens and international communications."

It's about time!
4.14.2007 5:28pm
Cory Olson (mail):
Serously, at least they asked this time. Keep complaining and they'll gladly go back to just doing it.
4.14.2007 6:29pm
Owen Hutchins (mail):
They're going to do it anyway, so we might as well lay back and enjoy it?
4.14.2007 8:05pm
Henri Le Compte:
It really is more than a little disgusting to see "politics" played with an issue this important. I mean, change the D's and the R's around, and suddenly everyone's opinion is different? I'm afraid that one day a lot of people are going to wish that we had serious adults in Congress.
4.14.2007 10:43pm
Elliot123 (mail):

Specific and particular instances of misuse of authority by the administration would be helpful in evaluating your generalization.
4.15.2007 2:03pm
Bruce Hayden (mail) (www):
Specific and particular instances of misuse of authority by the administration would be helpful in evaluating your generalization.
It is accepted wisdom by those on the left, and some of the more libertarians here, that the TSP was in this category, and that the Administration has to be doing a lot worse that we haven't heard of yet, so it is not surprising that Cornellian didn't include the specifics.
4.15.2007 2:45pm
BGates (www):
Anderson, your quoted phrase "secret courts" appears nowhere in either linked article, except when interrupted by the phrase "Foreign Intelligence Surveillance". I believe the Foreign Intelligence Surveillance Court is a product of the Foreign Intelligence Surveillance Act. That passed in 1978, which makes me stop and wonder if you could craft your histrionics a bit more precisely.
4.15.2007 6:28pm
Anderson (mail) (www):
BGates, I was reading the comments in the thread; Just an Observer remarked about the proposed statute's "shifting the venue to the secret Foreign Intelligence Surveillance Courts."

Text searches are not a substitute for reading.

If you would read Denniston's post, you would see how laughably authoritarian the proposed legislation appears to be.

As for the date of passage of FISA, I have never been under the misimpression that our government was completely virtuous before January 2001.

Recent events ought to be compelling a revision of FISA in the opposite direction, towards less secrecy and greater reviewability. Perhaps this presumably dead-on-arrival proposal by the White House is a clever effort to frame the debate to avoid such a revision.
4.16.2007 12:31am