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Dems on FISA Modernization: It's Not Worse Than The Military Commissions Act

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The "FISA Modernization" bill that passed both houses and was signed into law by the President on Sunday night was far worse than the compromise version I'd described in an earlier posting. Unlike the versions described in the media, the bill that passed does not merely allow the government to listen in to communications between two overseas parties that just happen to route through a switching circuit located in the U.S. That was the gist of the compromise bill negotiated between the Democratic leadership and the Director of National Intelligence. Suffice to say that compromise bill died a quiet death (despite controversy over whether the DNI bailed out on a settled deal after the White House rejected what he'd negotiated). The Administration bill, modified only by a six-month "sunset" (automatic expiration) provision, was voted on. The hoped-for filibusters from Feingold et al. never materialized.

Other commentators are reading the new bill to allow for surveillance of all calls and emails with an overseas party. If this is the best that the Dems can extract from a weakened White House in compromise, then one wonders what would have resulted had the administration asked the prior Republican congress for a major FISA reform bill. Take, for example, this comment from Missouri Senator Claire McCaskill:

"I'm not thrilled. There are some changes we need to make to make sure that American citizens are protected. But it's a lot better than a lot of things that have been forced down this Congress' throat right before recesses that trampled on American's liberties."

(Thanks for bringing things into perspective -- it's great to be reminded of the long view by a first term senator.) With apologies for the vulgarity, this quote reminds me in several ways of Harvard Law School Critical Legal Studies wildman Duncan Kennedy's speech on law school teaching methodology, where he opined: "The professor [in the Socratic system] is jerking off in your mouth when he forces you to answer his questions. And my guess is that nine out of ten of you [law students] are going to finish him off." Since less than 90% of the Democrats voted for it, I suppose this shows conclusively that Congressional Democrats are slightly less pathetic than law students. Perhaps their strategy is to divert charges of being weak on terror by appearing weak on everything. It's working. Good luck in 2008, losers!

The Republicans certainly controlled the agenda as adeptly as Kennedy's law professor, managing to portray this as a time-sensitive fix that needed to happen before Congress went "on vacation," with Judiciary Committee minority chair Lamar Smith drooling out: "I hope that there are no attacks before we are able to effectively update this important act." (The notion of lazy Demmycrats was a running theme in GOP spin around the bill, leaving Keith Olberman incredulous: "Can you believe that Mr. One-Full-Year-Of-My-Eight-Years-In-Office-Was-Spent-On-Vacation is complaining about Congress taking their August break instead of giving him the rubber stamp he's looking for his wiretapping program?")

Of course, the notion that there was any sort of urgency involved here is nonsense. The supposed crisis that the bill was a response to was a FISA Court ruling that the type of surveillance done by the NSA Program was illegal -- but it seems clear now that that ruling came down in April. (We can only guess at the date from circumstantial evidence, but classified government filings docketed in our challenge to the NSA Program, CCR v. Bush, and some stray comments from Sen. Bonior support the notion that the secret court ruled in April.)

If the April ruling wasn't the immediate motivation for this big legislative push, the what was? The question is especially puzzling given that this administration has to date been content to rely on its "inherent" surveillance powers without ever bothering to ask Congress to fundamentally modify FISA. One possibility: the administration is worried about getting bad rulings from the courts. In January, faced with having to defend the indefensible NSA Program in an appellate court for the first time, the administration went to a handpicked FISA judge and got an order allowing similar surveillance three weeks before oral argument, hoping that would moot the case. (That January ruling was overturned by the April ruling from another FISA judge.) This Thursday, our long-delayed challenge to the NSA Program, Center for Constitutional Rights v. Bush, is due to be argued in front of a federal judge in San Francisco.

What gets lost in the hurried debate is perhaps the most important point: that giving federal judges their rightful role in the warrant process, as agents of accountability and oversight, ensures that law enforcement will do a more rigorous job and, in the long view, makes us all more safe. As I have said earlier on this site:

The larger point is a simple one, often overlooked. In the main, legal and technological short cuts don't stop terrorists. Good traditional law enforcement does. What we need is not less legal supervision but more flesh-and-blood agents doing a better job under more effective management. Profiling and other broad-brush measures like warrantless wiretapping may have some intuitive popular appeal but they have a historical track record of producing lousy results (as, apparently, does the NSA program).

Blaming the law is always a convenient shield for incompetent management to hide behind. After 9/11, an honest assessment by the FBI would have focused on bureaucratic management failures: that they failed to share intelligence with other agencies or devolve sufficient power to field offices. Instead, the loudest voices in the public debate were complaining that federal judges and wiretap laws were a drag on law enforcement's efficiency, and urging Congress to pass the PATRIOT Act to make everything better by lessening judicial oversight. Inside the White House, OLC lawyers argued that eliminating judicial oversight entirely was the best way to defend the country. In fact, the opposite is true: judicial oversight of wiretapping results in more efficient law enforcement because the probable cause requirement focuses law enforcement's efforts on threats that are real. For 200-plus years having judges review the evidence creating cause for suspicion before issuing search warrants is a system that has worked to ensure not only that the innocent don't get searched, but also that law enforcement doesn't waste its time with irrational profiling.

If there is a crisis, is that we're relying on this daft automated solution in lieu of developing more human intelligence -- something we supposedly have little of in the Arab world.

The good news is that we have six months to slap some sense into Congress. And, perhaps more to the point, at the end of those six months the NSA will have had six years to point us to one good thing that has come out of the program (besides the amusing spectacle of FBI agents calling Pizza Hut). Very little information on the NSA Program's successes, failures, and abuses has come out thusfar; and indeed it may be less likely that more comes out in the future: Newsweek's Michael Isikoff reports tonight that the administration has raided the home of a former DOJ lawyer, Thomas Tamm, seizing his and his kids' computers, on suspicion that he was involved in leaking the program's existence to the media. Now that Congress is out of the oversight picture, I suppose it's time to kill the messengers and thereby get the media out of it too.

--August 6, 2007

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