Bush Signs FISA Amendment Into Law

It's a done deal. President Bush today signed the FISA Amendment into law. Law Prof Jack Balkin justly blames the Democrats.

Following up on Big Tent Democrat's analysis of the FISA bill, I have a few thoughts and additional links. First, thanks to Balkanization for posting the link to the FISA bill. It's S. 1927 (pdf).

As Marty Lederman noted,

The key to understanding the FISA bill is that it will categorically exclude from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States," even if the surveillance occurs in the U.S.; even if the surveillance has nothing whatsoever to do with Al Qaeda, terrorism or crime; and, most importantly, even if the surveillance picks up communications of U.S. persons here in the States -- indeed, even if the surveillance is in part designed to intercept U.S. communications, so long as it is also "directed at" someone overseas.

....The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas.

Among those who sued over the warrantless NSA program were U.S. lawyers representing clients charged with terror offenses. At the time the suit was brought, lawyer Nancy Hollander, one of the plaintiffs, wrote:


The oldest privilege within the common law tradition on which this country was founded is the attorney-client privilege. A client has every right to believe that what he or she tells a lawyer in confidence will be secure. But now there is every indication that the government has listened to conversations I have had with my clients both here and abroad. My practice requires that I speak with lawyers living abroad, with witnesses and experts around the world. I no longer use the telephone, fax or email to communicate with clients, lawyers, witnesses, experts in any of my cases that involve terrorist related charges. I must travel the world to represent my clients as they have the right to be represented – zealously within the bounds of the law and with their confidences and my work-product protected.

Congress passed the wiretap laws and the FISA to provide access to telephone, email, and faxes when necessary to protect the security of the country. If those laws are violated, we can ask a court to suppress the evidence. If we believe the laws are unconstitutional, we can ask a court to find them so. If the Executive chooses to take it upon itself to ignore the Constitution and the laws Congress has passed, we have no recourse and our democracy is in peril.

The FISA Amendment passed by Congress this weekend extends and legalizes Bush's warrantless NSA surveillance program. As the ACLU reports,

The legislation that passed would allow for the intelligence agencies to intercept – without a court order – the calls and emails of Americans who are communicating with people abroad, and puts authority for doing so in the hands of the attorney general. No protections exist for Americans whose calls or emails are vacuumed up, leaving it to the executive branch to collect, sort, and use this information as it sees fit.

...“The administration is on the verge of reviving a warrantless wiretapping program even broader than the illegal one it conducted before.

So, by amending FISA, Congress has legalized that which was illegal, leaving us with no recourse at all.

How is the FISA Amendment illegal? By making an end run around the Fourth Amendment. From the ACLU's letter to Congress this week:

Fundamentally, the Administration’s proposal allows the government to scoop up all international communications of Americans without a warrant, retain those communications forever, and data mine them without review or limitation. The government could then use any information gleaned from this warrantless wiretapping to support future court orders. This is backwards. It turns the Fourth Amendment on its head. And, it does great damage to the Foreign Intelligence Surveillance Act, enacted and repeatedly modified to protect Americans’ privacy from an overreaching intelligence community.

I hope all of you interested in this issue will take a minute to read the ACLU's ten myths and facts about FISA.

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    There are two Constitutional issues here. . . (5.00 / 2) (#1)
    by Jon Erik Kingstad on Sun Aug 05, 2007 at 11:17:41 PM EST
    only one of which is the Fourth Amendment. The other is the issue whether Congress could assert any authority in an area which the Executive claimed as its exclusive province: the "unitary executive" theory to wiretap non-US persons without Congressional authorization. I don't for a minute believe this theory held any water but by asking for and now accepting and signing this bill into law, Bush I say has capitulated on that theory. It should now be settled that the executive cannot wiretap anybody, including  non US citizens even people speaking between Berlin and Ankara without Congressional authority.

    Having settled this principle, it now remains to be settled whether even Congress has the authority to approve the invasion of an American citizen's Fourth Amendment rights without a warrant where it is incidental a foreign surveillance. I am disgusted by Congress in having caved to Bush but I remain cautuously hopeful that they may have gained a strategic victory in having approved this bill.

    Great first point (none / 0) (#2)
    by Edger on Sun Aug 05, 2007 at 11:32:32 PM EST
    and very interesting second point, Jon.

    I wish I had confidence that they even were aware of such a possibility as your second point and might have set up for it by intentionally allowing a bill to be introduced and passed they knew could be struck down, as a tactical maneuver.

    If that were truly the case it would be the first time since 2000 that the Democrats even attempted to play a chess game 2 or 3 moves ahead of the WH, and the first time that the WH did not see it coming and only let the Dems think they were ahead of the game.


    I know you'll be shocked to discover (5.00 / 1) (#3)
    by aj12754 on Mon Aug 06, 2007 at 07:17:30 AM EST
    that the Post editorial board also found a way to blame the Democrats for this ... calling them afraid of being called soft on terrorism like the Post editorial board itself hasn't spent the last six years implying just that.  

    It's like that David Sedaris story about his dad who constantly warned the kids about every possible dangerous bad thing that could happen to them and then wondered aloud how he managed to raise such a pack of wusses.

    Nooo? The Post?? Hunh! (none / 0) (#4)
    by Edger on Mon Aug 06, 2007 at 07:40:51 AM EST
    Water under the Bridge (5.00 / 2) (#6)
    by koshembos on Mon Aug 06, 2007 at 10:28:45 AM EST
    FISA didn't make difference before when Bush violated it at the outset. Whether you codify Bush's oligarchy or not it stays an oligarchy. So, the right argument is not FISA related; can we stop Bush now or not.

    He can be stopped. (none / 0) (#7)
    by Edger on Mon Aug 06, 2007 at 10:51:13 AM EST
    Will he Democrats do it? Obviously not.

    Edger, no disrepect intended here but (5.00 / 1) (#10)
    by conchita on Mon Aug 06, 2007 at 12:56:26 PM EST
    this month we all need to work on our reps - meetings, letters, demonstrations, etc.  Nadler is my rep and he hasn't endorsed 333 or 589 yet.  I am hoping the FISA vote will put him over the edge - it damn well should - and he will come out fighting rather than politicking.  We'll see.  One thing for sure though - I'm not going down without a fight.

    hoping the FISA vote will put him over the edge? (5.00 / 1) (#11)
    by Edger on Mon Aug 06, 2007 at 01:13:27 PM EST
    I hope so too, Conchita. Nadler voted against it.

    The problem as I see it is as Jeff said below: "It should have never come to a vote... The "fast one" they pulled was Pelosi and Reid letting this come to the floor"

    The complicity is by the leadership. As it was over the Iraq Supplemental in the spring.

    The pressure on them has to be kept unrelenting and merciless now.

    Bush can be stopped. Will the Democratic Leadership do it? I believe not.

    Unless they perceive an unacceptable political cost in 2008 to the Democratic Party's congressional and presidential chances.

    Olbermann was talking about the Iraq Occupation in this video, but what he said I think applies equally, if not more so, to their complicity over FISA:

    Those who seek the Democratic nomination need to--for their own political futures and, with a thousand times more solemnity and importance, for the individual futures of our troops--denounce this betrayal, vote against it, and, if need be, unseat Majority Leader Reid and Speaker Pelosi if they continue down this path of guilty, fatal acquiescence to the tragically misguided will of a monomaniacal president.

    yes, there is no reason why that vote had to be (5.00 / 2) (#13)
    by conchita on Mon Aug 06, 2007 at 04:47:53 PM EST
    held.  i hold them all responsible, nadler included, and my point was i am not stopping now and i am not letting him/them off the hook.

    I Still Cannot Believe (5.00 / 2) (#14)
    by squeaky on Mon Aug 06, 2007 at 04:54:57 PM EST
    Nadler's agreeing to withdraw his true statement. What did he have to lose? He lost more by wussing out.

    i've been wondering the same thing myself (5.00 / 1) (#16)
    by conchita on Mon Aug 06, 2007 at 07:52:59 PM EST
    and will ask him when we meet.

    No reason that vote had to be held (none / 0) (#15)
    by Edger on Mon Aug 06, 2007 at 05:05:30 PM EST

    Maybe now people can also start to understand how the Iraq occupation can be ended.

    And why it continues: Complicity.


    Unfortunately, right now (none / 0) (#12)
    by Edger on Mon Aug 06, 2007 at 01:18:04 PM EST
    The Dems Have a Majority in Both Houses (5.00 / 4) (#8)
    by Jeff in Texas on Mon Aug 06, 2007 at 10:59:22 AM EST
    It should have never come to a vote.  So this makes no sense:

    "I feel like the Republicans pulled a fast one and the actual mechanisms they used should be exposed."

    The "fast one" they pulled was Pelosi and Reid letting this come to the floor and letting their caucus break ranks on it.  That's it.  The Republican "mechanism" was to shout "boo!!!" in a scary voice.  Now we will no doubt listen to Pelosi and Reid talk about how many Dems voted against the bill, as if it mattered.  They let it become law, and they knew exactly what they were doing.  

    Boy, I can't wait until the next Congressional oversight hearing.  I wonder if a Bush administration official will lie to their faces without consequence????  The anticipation is just killing me.

    Thank you, Jeff (5.00 / 3) (#9)
    by mmeo on Mon Aug 06, 2007 at 12:31:12 PM EST
    for stating clearly what has been at the back of the discussion in the last day or so.

    Namely, the Democrats chose to rush the bill to a vote.  The decision came from the very same Democratic leadership which has repeatedly pictured itself as the defenders of Constitutional rule, against the Republicans who would ride rough-shod over the Constitution.

    When a real issue came up, not something that would garner a lot of televised talk, but a real issue of voting to confront the Presidency with its decade-long record of extending its power, the Democratic Congressional leadership was perfectly complicit in the rape of the Constituion.


    The Constitution Speaks (5.00 / 1) (#17)
    by SearingTruth on Mon Aug 06, 2007 at 07:54:14 PM EST
    And now let's all give a warm welcome to ... The Constitution of the United States of America!

    Hello citizens. The Constitution here. I have a message for you.

    You have been betrayed, and I am about to die.

    Every loyal American citizen in this country must immediately register as an Independent voter, and abandon the Republican and Democratic parties who abandoned me, or I can protect you no longer, and my life will end.

    The only legal way to change the rule of law I embrace is by amendment, and a proposed Amendment must pass with two-thirds majority vote in both the House of Representatives and U.S. Senate, or a Constitutional Convention must be called by two-thirds of the state legislatures. If the amendment passes both the House and the Senate with two-thirds majority, then three-fourths of the states (38) must ratify it.

    And yet here is the latest of my most cherished laws to be illegally declared null and void.

    Amendment IV
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Save me fellow Americans. I protected you for over 225 years, and all I ask now is that you not let me die, without even a whimper, so that my protection may continue.

    what happened (none / 0) (#5)
    by msobel on Mon Aug 06, 2007 at 09:43:00 AM EST
    I think what would be most useful (and given your law background you may be the wrong person to ask) is how this happened so quickly.  I feel like the Republicans pulled a fast one and the actual mechanisms they used should be exposed.  Other than that it seemed like the old Bluedog Salazarian crap but it came out of nowhere.   I think hearings with Abu Gonzales on what procedures he was going to instill, with him giving the trust me speech, would have sufficed to kill it.  Why the leadership didn't make these hearings happen is unclear to me.

    After FISA "sunsets" (none / 0) (#18)
    by Edger on Tue Aug 07, 2007 at 09:45:57 AM EST
    Bush will be operating under the cover of darkness?

    ...an intelligence official is now empowered to sort through the legalistic, secretive world of FISA, rather than a judge or the nation's highest law enforcement officer.

    Lisa Graves of the Center for National Security Studies, which advocates for civil liberties, said the new law will potentially allow the government to intercept millions of Americans' calls and e-mails without warrants - as long as the NSA and other authorities have a foreign suspect in their sights.

        "This power that they have obtained is a dramatic expansion," she said.

        The Bush administration also fixed an odd quirk of the surveillance law that it said had emerged with the rapid technological growth of the past two decades: The government had to get legal approval to listen in on foreign suspects who are located overseas but whose conversations cross into the extensive U.S. communications network, as millions of international calls and e-mails do each day.

        While the law is in effect, that legal approval will no longer be required, officials acknowledged.

        The power may last longer than some people expect, Graves noted, thanks to a little-noticed provision of the bill. While the law expires in February unless Congress acts to extend it, any surveillance orders that are in place when it sunsets can last up to a full year, she said.

        Without a repeal, lawmakers "weren't just giving them the power for six months. They were giving it to them for the rest of the administration," Graves said.

    Gonzo hermano mayor (none / 0) (#19)
    by Edger on Tue Aug 07, 2007 at 02:06:14 PM EST
    Same Agencies to Run, Oversee Surveillance Program
    Walter Pincus, WAPO, Tuesday 07 August 2007