Marjorie Cohn: With FISA Law, Democrats Give Bush a Blank Check for Domestic Spying

from AlterNet:


With FISA Law, Democrats Give Bush a Blank Check for Domestic Spying

By Marjorie Cohn, AlterNet. Posted August 11, 2007.



Responding to fear-mongering by the Bush administration, the Democrat-led Congress put its stamp of approval on the unconstitutional wiretapping of Americans.

Responding to fear-mongering by the Bush administration, the Democrat-led Congress put its stamp of approval on the unconstitutional wiretapping of Americans. George W. Bush has perfected the art of ramming ill-considered legislation through Congress by hyping emergencies that don't exist. He did it with the USA Patriot Act, the authorization for the Iraq war, the Military Commissions Act, and now the "Protect America Act of 2007" which amends the Foreign Intelligence Surveillance Act (FISA).

FISA was enacted in 1978 in reaction to excesses of Richard Nixon and the FBI, who covertly spied on critics of administration policies. FISA set up a conservative system with judges who meet in secret and issue nearly every wiretapping order the administration requests.

But that wasn't good enough for Bush. In 2001, he secretly established his "Terrorist Surveillance Program," with which the National Security Agency has illegally spied on Americans. Instead of holding hearings and holding the executive accountable for his law-breaking, Congress capitulated once again to the White House's strong-arm tactics. As Congress was about to adjourn for its summer recess, Bush officials threatened to label anyone who opposed their new legislation as soft on terror. True to form, Congress -- including 16 Senate and 41 House Democrats -- caved.

The new law takes the power to authorize electronic surveillance out of the hands of a judge and places it in the hands of the attorney general (AG) and the director of national intelligence (DNI). FISA had required the government to convince a judge there was probable cause to believe the target of the surveillance was a foreign power or the agent of a foreign power. The law didn't apply to wiretaps of foreign nationals abroad. Its restrictions were triggered only when the surveillance targeted a U.S. citizen or permanent resident or when the surveillance was obtained from a wiretap physically located in the United States. The attorney general was required to certify that the communications to be monitored would be exclusively between foreign powers and there was no substantial likelihood a U.S. person would be overheard.

Under the new law, the attorney general and the director of national intelligence can authorize "surveillance directed at a person reasonably believed to be located outside of the United States." The surveillance could take place inside the U.S., and there is no requirement of any connection with al-Qaeda, terrorism or criminal behavior. The requirement that the AG certify there is no substantial likelihood a U.S. person will be overheard has been eliminated. ......(more)

The complete piece is at: http://www.alternet.org/rights/59406/