Congressional Democrats redefine spineless when it comes to FISA.

The law, lawyers, and the court.
Aug. 6 2007 5:18 PM

Wiretap at Will

Congressional Democrats redefine spinelessness with the new FISA law.

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If you examine the particulars of the new law, that is precisely what he got.

Like the Democratic bill, the Protect America Act will allow for the warrantless interception of communications in the United States when authorities believe the targets are foreign. The FISA court will not examine warrant applications on an individualized basis. Instead, it will simply grant programmatic approval to the whole operation.  It is the director of national intelligence and the attorney general who will authorize the interception of these communications, and—enshrining a laughably deferential standard of review—the FISA court can quibble with their judgment only when the rationale for wiretapping is "clearly erroneous."

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To secure access to the telecommunications switches inside the United States, which the NSA had simply asked for in the past, the new law obliges phone and Internet companies to create back doors for eavesdroppers; if they don't comply, they can be held in contempt. And best of all, there's no longer an audit of abuses by the DoJ's inspector general. Instead, Congress will receive an update on that twice a year from none other than the attorney general—the very individual who, even as this legislation was being prepared, was exposed as having denied, under oath, the existence of surveillance abuses by the FBI. So, in one fell swoop, the bill dramatically augmented the domestic surveillance capabilities of the federal government and hobbled the few mechanisms that might have kept that new authority from being abused. It gives with one hand, and then gives with the other.   

A year ago, we might have chalked this up to the kind of groupthink travesty that unfolds when the same party controls the White House and both houses of Congress. But the saddest thing about this whole affair was the haste with which congressional Democrats—some seeking re-election next year in conservative districts—folded up their objections and went on vacation.  Jerry Nadler, D-N.Y., complained that Democrats were "stampeded by fearmongering and deception." What's extraordinary is not so much how craven the Republican rhetoric was, but that even now, after seven months of the obvious mandate conferred by their congressional majority, Democrats are still so easily cowed. However alarmist the talking points, congressional Democrats have "a Pavlovian reaction," Caroline Fredrickson of the ACLU observed. "Whenever the president says the word terrorism, they roll over and play dead."

Proponents of the Republican bill might have had a leg to stand on if the Democrats had opposed "modernization" of the old FISA law. But they didn't: They simply opposed modernization without accountability. It was the president and Republican lawmakers who held out for the latter, running the risk that the changes would not be written into law before the August recess. Yet Mitch McConnell, R-Ky., got away with lines like, "Al-Qaida is not going on vacation this month." Connecticut Sen. Joe Lieberman, another supporter of the bill, came up with this canard: "We're at war. The enemy wants to attack us. This is not the time to strive for legislative perfection."  Huh? The bill passed the House 227-168 and the Senate 60-28.   

The only concession in the new law is the promise that its provisions will sunset in six months, giving Congress an opportunity to work on something even Lieberman might deem "legislative perfection." In an effort to save face, many Democrats are vowing to fight another day. But if you look closely at the final subsection in the law, it indicates that while the legislation itself will sunset in six months, any programs authorized under the legislation may continue. 

When President Bush signed the bill Sunday, he made clear that he, for one, is looking forward to more comprehensive legislation on wiretapping, not because he thinks the Democrats are going to take anything away from him when they revisit this issue, but because he's kinda hoping they'll cough up even more. Specifically, he's hoping for "meaningful liability protection" for telecommunications companies, like AT&T, "who are alleged to have assisted" the government by furnishing NSA with warrantless access to domestic communications. Yale Law professor Jack Balkin highlights the peculiar wording of Bush's fervent hope: He can't acknowledge that the phone companies helped out, because what they did was illegal. But that's not going to stop him from asking Congress to shield them from liability. It seems a bit greedy—even cheeky. But then, you can't blame a guy for asking. And given Congress' willingness to definitively euthanize FISA and declare open season on domestic surveillance, he might just get what he wants.