reality-based educator

Arlen Specter has proposed new NSA surveillance rules that ostensibly would force the federal government to get permission from the FISA court in order to spy on American citizens. The Washington Post writes up the plan thusly:

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago.

Specter's plan could put him at odds with the administration, which has praised a rival proposal that would exempt the NSA program from the surveillance law. Specter's proposal would also require the administration to give a handful of lawmakers more information about the program than they now receive, such as the number of communications intercepted and a summary of the results.

The draft version of Specter's bill, which is circulating in intelligence and legal circles, would require the attorney general to seek the FISA court's approval for each planned NSA intercept under the program. Bush has said the agency monitors phone calls and e-mails between people in the United States and people abroad when any of them is thought to have possible terrorist ties.

Marty Lederman at Balkinization thinks the Specter proposal is a total capitulation to the Bush administration that would destroy the FISA law as it is currently drawn, though the Specter plan is being sold by the press as a win for Specter and civil libertarian critics over the Bushies:

The draft legislation isn't at all what Senator Specter has been talking about in recent weeks -- namely, a bill to facilitate judicial review of the legality of the current NSA docmestic surveillance program. This bill would appear to do absolutely nothing to address whether the current and ongoing program(s) is (are) permisisble under current law -- that is to say, it would not seek to facilitate judicial review of the AUMF and Article II arguments on which the Administration is relying.

...

Under FISA, in order for the federal government to engage in electronic surveillance targeted at someone here in the U.S. -- i.e., at phone calls and e-mails going out of the U.S. -- there must be probable cause that the person targeted is a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(3). The Specter bill would go much, much further. Under that bill, it would not be necessary for the NSA to show that either party to an intercepted phone call or e-mail has anything to do with Al Qaeda or any other terrorist organization. It would not even be necessary for the government to show probable cause -- or reason to believe, or any evidence -- that etiher party to the call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power.

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular targeted surveillance -- will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power, as long as the government is seeking to monitor or detect that foreign power (or agent)! (See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.")

This is breathtakingly broad because the pre-existing definitions of "foreign power" and "agent of foreign power," which would not be changed, include not only terrorist organizations, but all components of a foreign government, all foreign-based political organizations, and all persons acting in the U.S. as agents of such govenrments and organizations.

Therefore, if I'm reading it correctly, if you've ever had any communication with a foreign government or organization, or its U.S. agents or employees -- that is to say, if there's "probable cause" that you live and breathe here in the U.S. -- this bill would permit the President to wiretap you indefinitely, without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda. [UPDATE: Not quite indefinitely. "Continuous" surveillance could only last 90 days, after which the NSA would have to obtain a traditional FISA order, or perhaps merely skip a day and start the surveillance anew, so that it's not "continuous" for more than 190 days.]

In other words, there would no longer be any meaningful substantive statutory restriction on the federal government's electronic domestic surveillance of U.S. persons -- the end of FISA as we know it. The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is "consistent with" the Fourth Amendment. This would, if I'm not mistaken, bring us right back to the pre-FISA days, when the Fourth Amendment was the only legal constraint on domestic electronic surveillance by the federal government. To be sure, under the Specter bill the Fourth Amemdent bona fides would have to be approved in advance, by the FISA court. But the proceedings would be secret, and ex parte. Moreover, the FISA Court could not possibly review the surveillance for, e.g., the "particularity" that the Fourth Amendment requires, because the FISA Court would be tasked not with determining whether any particular interception is constutitional, but somehow with making "wholesale" determinations that the program writ large is "consistent with" the Constitution. That seems untenable, at least on first glance.

On the Dubai ports deal front, the NY Times reports this morning that:

The Dubai company seeking to take over some terminal operations at six American ports formally asked the Bush administration on Sunday to conduct a deeper investigation into security concerns surrounding the deal. The request will leave President Bush in the politically delicate position of having to personally approve or disapprove the takeover.

The company, Dubai Ports World, which is controlled by the emir of Dubai, part of the United Arab Emirates, asked the government to conduct "the full 45-day investigation authorized under U.S. law," an investigation that Mr. Bush and his advisers said last week was unnecessary. In a statement, the company said it was confident that the review of the American aspects of the $6.85 billion deal would reach the same conclusions that a lower-level study did in January, and that "the security of the U.S. will not be harmed as a result of this acquisition."

But Think Progress finds the deal to be "fundamentally dishonest" and calls it "political...not substantive. It's designed to take the heat off the White House, not protect the security of the United States." Think Progress cites these facts included in the "deal":

1. The deal is not actually being delayed - DP World is going to alter its management structure until the 45 day review is completed, but the company will be entitled to all profits during the review period.

2. If the review kills the deal, DP World may sue the U.S. DP World is only agreeing to a longer review process, not a different outcome of the deal.

3. The administration has already made up its mind about this deal and only Congress can step in and stop it - if Republicans have the guts to thumb their noses at their preznit.

So, as a result of Specter's NSA plan and the Dubai ports deal, I have officially decreed today to be "Misleading Monday." The devil is always in the details with these people and if you aren't paying close attention to what they're doing, you'll think they're compromising on issues when they really aren't.

As John Mitchell said about his own Nixon administration: "Watch what we do, not what we say."

Indeed.