We all know that the compromise FISA bill the Senate will be voting on this week sucks. We can all come up with plenty of reasons why it sucks, and long lists of what specifically sucks about it. But even, it still sucks less than what we might otherwise get stuck with, and it
definitely sucks less than what we've got right now.
Over in GD-P, JDPriestly posted a long and detailed reply he received from Senator Feinstein's office explaining her position on the compromise FISA legislation. You can read the whole letter in
his GD-P OP here, and I highly recommend you do so because it makes a lot of sense. I know I understood the current FISA bill better after reading it myself.
Feinstein's letter emphasizes her opposition to the Title II provisions that protect the telecoms (and cover BushCo's collective ass) and points out that it's not too late to amend the FISA bill to eliminate some or all of those provisions this week before the bill passes. But she also points out that it needs to be passed anyway, and lists some good reasons why it sucks less than what we have now. According to Feinstein, the compromise FISA bill:
-- Includes provisions I authored that make clear that FISA is the exclusive (or only) authority for conducting surveillance inside the United States. This is crucial as it requires that all future Presidents must act only within the law. FISA would be the only legal authority for conducting surveillance on Americans for intelligence purposes, and only legislation that specifically provides wiretapping authority in the future would be an exception to FISA.
-- Requires the government to obtain a warrant before surveillance can begin. This applies to all Americans - anywhere in the world. The Protect America Act allowed surveillance for up to six months before getting a warrant. This bill ends all warrantless surveillance of U.S. persons. In this sense it is precedent setting.
-- Bans reverse targeting, which was a concern under the Protect America Act. Reverse targeting would allow the government to collect the contents of telephone calls and e-mails of an American by conducting surveillance on the people with whom they communicate. This is prohibited in this bill.
-- Requires that the government implement procedures approved by the Court for minimization. If an American's communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person's private information. This has been a hallmark of FISA for 30 years, but court review and approval of minimization procedures was not included in the Protect America Act. It is here.
-- Requires the government to receive a warrant to conduct surveillance on an American outside of the United States. This means that Americans' privacy rights are protected everywhere around the world. A court warrant has never been required outside the United States before; this would be the strongest protection ever.
National security expert and policy activist Morton Halperin also agrees with Feinstein. His position is that even though the current FISA bill isn't perfect, it still sucks less than the alternatives. And he certainly ought to know.
Halperin is the executive director of the
Open Society Policy Center. While he was on the staff of the National Security Council, the Nixon administration illegally wiretapped his home phone for almost two years -- in fact, he was No. 8 on Nixon's infamous "enemies list" because he opposed the Vietnam war and Nixon's abuses of executive power.
So Halperin really knows what he's talking about when it comes to warrantless wiretapping and issues of national security. And this what he had to say about FISA in a
NYTimes op-ed piece today:
Two years ago, I stated my belief that the Bush administration’s warrantless wiretapping program and disregard for domestic and international law poses a direct challenge to our constitutional order, and “constitutes a far greater threat than the lawlessness of Richard Nixon.”
{snip}
Because I rejected the Nixon administration’s use of national security as a pretext for broad assertions of unchecked executive power, I became engaged with the Foreign Intelligence Surveillance Act when it was proposed in the early 1970s. And because I reject the Bush administration’s equally extreme assertions of executive power at the expense of civil liberties, I have been engaged in trying to improve the current legislation.
The compromise legislation that will come to the Senate floor this week is not the legislation that I would have liked to see, but I disagree with those who suggest that senators are giving in by backing this bill. The fact is that the alternative to Congress passing this bill is Congress enacting far worse legislation that the Senate had already passed by a filibuster-proof margin, and which a majority of House members were on record as supporting.
What’s more, this bill provides important safeguards for civil liberties. It includes effective mechanisms for oversight of the new surveillance authorities by the FISA court, the House and Senate Intelligence Committees and now the Judiciary Committees. It mandates reports by inspectors general of the Justice Department, the Pentagon and intelligence agencies that will provide the committees with the information they need to conduct this oversight. (The reports by the inspectors general will also provide accountability for the potential unlawful misconduct that occurred during the Bush administration.) Finally, the bill for the first time requires FISA court warrants for surveillance of Americans overseas.
As someone whose civil liberties were violated by the government, I understand this legislation isn’t perfect. But I also believe — and here I am speaking only for myself — that it represents our best chance to protect both our national security and our civil liberties. For that reason, it has my personal support.
I know you think the compromise FISA legislation being voted on in the Senate this week sucks. Believe me, I think it sucks, too. But I'm also a rational realist who understands that we need to have some kind of FISA bill on the books before the end of the month, no matter what. And I recognize that this version really does suck less than the alternatives. So I expect them to pass this bill, and I can live with that.
I sure do hope that the good guys in the Senate manage to gut (or at least hobble) the bogus Title II telcom immunity provisions in it before they do, though...
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