Fun FISA Facts

This hasn’t been the greatest week for our civil liberties. The Arlen Specter bill made it out of committee and a full vote is expected on the floor of the senate as early as next week. Specter’s bill, portrayed by the media as a compromise between the White House and so called “moderate” Republicans on the issue of secret surveillance on American citizens is actually a Trojan horse bill whose effect will be to strengthen the President’s ability to spy on United States citizens without the approval of a court and without a valid warrant. The committee approved S.2453, the "National Security Surveillance Act." By a vote of 10-8. The bill was authored by Vice-President Dick Cheney and Committee Chairman Specter. It gives the president the option of complying - or not - with the Foreign Intelligence Surveillance Act and the protections of the Fourth Amendment.
From the New York Times:

“The intensity of feeling aroused by the Specter-White House version (of the bill) was illustrated in the reaction of the American Civil Liberties Union. “Today, the Senate Judiciary Committee acted as a rubber stamp for the administration’s abuse of power,” said Caroline Fredrickson, head of the A.C.L.U.’s Washington legislative office, in urging defeat by the full Senate.
Under the agreement reached by the president and Mr. Specter, the bill includes language implicitly recognizing the president’s “constitutional authority” to collect foreign intelligence beyond the provisions of the 1978 law that created the F.I.S.A. court.”

And from the ACLU’s press release:
“The bill would also: vastly increase the government’s statutory power to examine all international phone conversations and emails, making warrantless surveillance of Americans’ conversations the rule rather then the exception and expand the ability to conduct warrantless physical searches of Americans’ homes.
Senator Mike DeWine’s (R-OH) "Terrorist Surveillance Program Act of 2006" (S. 2455) was approved by a vote of 10 to 8. This bill would weaken the probable cause requirement for spying on people in the US - sweeping in innocent Americans - allow extended warrantless surveillance, limit judicial review and punish whistleblowers.”
The Democrats, their usual craven boot licking in full effect, sponsored a slightly less offensive bill that while requiring the president to follow the procedures set forth by Congress for wiretapping Americans, it streamlines (i.e. makes easier) the procedures by which one may seek a FISA warrant.

Maybe I’m old fashioned but to me the FISA courts very existence is an affront to a free society. If the DOJ wants to perform surveillance on an American citizen then let them make an in camera application to a regular judge; not a secret cabal of people whose identities are unknown and loyalties to the principals of liberty suspect. Though the this Court’s rulings may result in criminal charges, convictions and prison sentences for US citizens, their activities are permanently sealed from review by those accused of crimes and from any substantive civilian review. During the 20-years of its existence, the FISC received over 10,000 applications for covert surveillance and physical searches. To date, not a single application has been denied. Way to go Senator Feinstein! Teach those Republicans that they have to obey the law by facilitating their access to our secret Court!

The upshot of all this is that the democrats are ultimately to blame for creating the FISA court in the first place. The sponsor of the enabling legislation was, drum roll please, none other then Edward Kennedy, the esteemed senior Senator from Massachusetts. One would think that the Democrats learned their lesson that compromising your values in the face of immoral opposition is a slippery slope to hell, but there are a lot of short memories in Washington. The FISC concept was a compromise between legislators who wanted the FBI and National Security Agency (NSA), the only two agencies affected by the FISA statute, to follow the standard procedure for obtaining a court order required in criminal investigations and legislators. The federal agencies believed that they should be completely unfettered in conducting their foreign intelligence surveillance work inside US borders. The “compromise” was the creation of a secret Court which answers to no one, including the Congress that created it. It is also noted that the FISA legislation was introduced at a time when the White House and both houses of congress were controlled by Democrats. But that’s not all...

Bill Clinton greatly expanded the Court’s power when he signed Executive Order 12949 mid-way through his first term. His order granted the Court legal authority to authorize Department of Justice to approve so-called "black-bag" operations within the United States, to approve requests to conduct physical as well as electronic searches without obtaining a warrant, without notifying the subject, and without providing an inventory of items seized. Interestingly enough, the targets need not be under suspicion of committing a crime, but may be investigated when probable cause results solely from their associations or status: for example, belonging to, or aiding and abetting organizations deemed to pose a threat to U.S. national security. (This seems to include just about everyone except members of the Republican Party these days) Furthermore, despite a lowered standard for applying the Fourth Amendment against unreasonable search and seizure than is necessary in other U.S. courts, under the 1995 expansion, evidence gathered by the FISA court may now be used in criminal trials. Previously, evidence was collected and stockpiled solely for intelligence purposes.

Perhaps the next time the Republicans accuse the Democrats of being soft on terrorism the Democrats can point to the FISA Court as proof positive that they are just as susceptible to irrational fear mongering as their apocalyptic fundamentalist-freak friends across the aisle.