Amending the Foreign Intelligence Surveillance Act

From the New York Times:

Under pressure from President Bush, Democratic leaders in Congress are scrambling to pass legislation this week to expand the government’s electronic wiretapping powers.

Democratic leaders have expressed a new willingness to work with the White House to amend the Foreign Intelligence Surveillance Act to make it easier for the National Security Agency to eavesdrop on some purely foreign telephone calls and e-mail. Such a step now requires court approval.

It would be the first change in the law since the Bush administration’s program of wiretapping without warrants became public in December 2005.

In the past few days, Mr. Bush and Mike McConnell, director of national intelligence, have publicly called on Congress to make the change before its August recess, which could begin this weekend. Democrats appear to be worried that if they block such legislation, the White House will depict them as being weak on terrorism.

I find this news deeply distressing. The Bush Administration has demonstrated a contempt for the Foreign Intelligence Surveillance Act (FISA), declaring that it doesn’t deem FISA to have binding power over the executive branch. So now Congress wants to work with this administration in crafting a new legal regime for surveillance. It seems to me that this administration has lost all credibility when it comes to working in good faith on legislation on this issue. Anything Congress does should be temporary, and any permanent legislative solution should wait until the next presidential administration.

Hat tip: Orin Kerr

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2 Responses

  1. KipEsquire says:

    “It would be the first change in the law since the Bush administration’s program of wiretapping without warrants became public in December 2005.”

    But it would NOT be the first change since 1978. FISA has been amended nine times, including via the PATRIOT Act and its reauthorization.

    It is totally disingenuous and duplicitous for warrantless wiretapping apologists to describe FISA as “obsolete” or as a “Carter-era law” (which they do repeatedly). It is a “Bush-era law,” pure and simple.

  2. Adam White says:

    I must say that I don’t see the contradiction here. The Bush Administration has maintained that, pursuant to its (argued) Constitutional authority, FISA’s surveillance provisions don’t legally bind the Executive Branch.

    The Bush Administration now is negotiating a resolution to this interbranch dispute, to be reflected in revised statutes. The Bush Administration need not concede the constitutional point in order to agree to abide by certain negotiated limitations on its power.

    Likewise, the fact that Congress has disagreed with the President on the constitutional point, and that there is a great deal of mistrust of the President in the halls of Congress, does not mean that Congress is not prudent in its conclusion that a negotiated resolution of the situation is not a workable, optimal solution — especially when Congress has reason to believe that the next Administration may abide by the new statutes to an extent greater than it may abide by the existing statutes.

    Negotiated solutions amidst hotly contested legal fights is nothing new — indeed, its commonplace in our profession. But such negotiated solutions can occur only when two sides are willing to come to the table and work out a imperfect solution that is sufficiently acceptable to both parties.

    You seem to think that Congress holds all of the leverage in this negotiation. I’d suggest that you’re wrong, and that Congress has just as much an incentive to find middle ground on this issue.

    Lately, Democratic presidential candidates have been debating how quickly they would race to the bargaining table to find middle ground with Hugo Chavez, Kim Jong Il, and others. I’d say that those same Democrats can and should be ready to negotiate with President Bush.