Congress, the President, and NSA Surveillance

Congress recently passed a broad authorization of the NSA surveillance program, bowing to pressure from President Bush. From the New York Times:

Racing to complete a final rush of legislation before a scheduled monthlong break, the House voted 227 to 183 to endorse a measure the Bush administration said was needed to keep pace with communications technology in the effort to track terrorists overseas. . . .

There was no indication that lawmakers were responding to new intelligence warnings. Rather, Democrats were responding to administration pleas that a recent secret court ruling had created a legal obstacle in monitoring foreign communications relayed over the Internet.

They also appeared worried about the political repercussions of being perceived as interfering with intelligence gathering.

The impetus for this legislation appears to be a decision by a FISA court judge that parts of the NSA surveillance program violate FISA. But apparently, that decision came about four or five months ago — yet the Administration waited until the eve of Congress’s recess to make the call for this legislation. Why wait until now?

Over at Balkinization, Marty Lederman (Georgetown Law Center) wonders why the Bush Administration conducted the NSA surveillance program illegally when it could have readily obtained Congressional approval:

Doesn’t this give the NSA all it had under the “TSP” between March 2004 and January 2007 — and much, much more, since there’s no requirement of any tie to an Al-Qaeda-related person? If so, and if they could get this sort of a deal from a Democratic-controlled Congress, what does that say about their unwillingness to go to a Republican-led Congress for those four years to seek a similar legislative fix, and to violate FISA unilaterally and in secret on the basis of a threadbare AUMF/Article II rationale? Is there any excuse now for their not having invoked the ordinary constitutional processes?

Jack Balkin (Yale Law School) captures the import over this latest incident most vividly:

Between the Party of Fear and the Party Without a Spine, there does not seem to be much opportunity to keep the National Surveillance State benign. Nor does there seem to be any political check on the development of an increasingly authoritarian Presidency, which controls the levers of secrecy, surveillance, and military force.

Do not be mistaken: We are not hurtling toward the Gulag or anything that we have seen before. It will be nothing so dramatic as that. Rather, we are slowly inching, through each act of fear mongering and fecklessness, pandering and political compromise, toward a world in which Americans have increasingly little say over how they are actually governed, and increasingly little control over how the government collects information on them to regulate and control them.

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