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October 5, 2007
Have Congressional Progressives Initiated a FISA Sea Change?
The Huffington Post — “Dems Postpone Rollout Of Controversial Wiretapping Bill”
Rep. Steny Hoyer (D-MD), the House Majority Leader, postponed a press conference announcing new reforms of the Foreign Intelligence Surveillance Act after progressive lawmakers banded together and said they would fight any legislation that did not include a set of eight principles on wiretapping that preserve the “rule of law.”
“What’s most significant is that the Progressive Caucus came together and said to the leadership that all 72 of us require that these provisions be included,” said Caroline Fredercikson, Legislative Director for the American Civil Liberties Union. “This changes the dynamic significantly.”
The eight principles, nutshellized : Improve what we’ve got instead of shifting increasing amounts of discretion to the executive branch, make no measure hostile to the privacy of citizens permanent, and don’t let the telcos off the hook for any illegal spying they’ve already abetted, because that just guarantees they’ll go along with the next set of illegal requests.
Just this morning Jim Henley noted how things look from the Senate side, pointing out that Senate rules allow for considerably fewer than a similar proportion of its members to put the brakes on bad legislation:
Wow. It’s even easier to block passage of legislation in the Senate than you thought! You don’t even need 40 votes. You just need one guy. The most recent one we know about relates to Republicans trying to stop legislation overturning a bogus executive order about presidential papers.
Not one Democratic Senator appears interested in putting a hold on the latest FISA monstrosity. Not one put a hold on the last one. Not one put a hold on the Military Commissions Act. Clinton could do this. Obama could do this. Dodd could do this. Webb could do this.
Nobody’s doing it. The GOP will use every rule and custom of the Senate to enable the unitary-executive program of unlimited surveillance and official torture. The Democrats will mount only pro forma opposition, and that fitfully. No one puts holds on bills. Nobody buries things in committee. Nobody uses any of the innumerable tricks devised over the centuries to kill legislation with kindness. If social security was at issue, you can be sure they would leave no trick unturned. But it’s only the rule of law. No biggie.
Which might lead one to wonder why there’s the disparity in behavior between the two houses, except the reason for that is as plain as reasons get:
Four influential Democratic senators are running for president this year, and they’re deathly afraid of attack ads that will further convince the fringe right that they’re “objectively pro-terrorist,” or whatever absurd formulation is passing for “serious discourse” these days; or possibly discomfit people who might settle for merely flipping a coin next November.
On the House side? There’s one Democrat running for President, and that’s Dennis Kucinich. Say whatever you will about the man, he’s well past worrying about attack ads or how he’s polling with post-9/11 moderates who defected to the right.
So what difference will the Progressive Caucus make? As Ryan Singel points out, “72 votes is quite a lot in the House.” They could do a lot to blunt round two of the Great FISA Rewrite.
The caucus statement follows on the inside.
We, Members of the Congressional Progressive Caucus, fully recognizing that we live in a dangerous world but proud of, and deeply committed to, the values that have made the United States an exemplar for the world, affirm the following principles to guide consideration over the debate regarding surveillance of foreign intelligence. We hold that these principles represent the pillars by which America gives no quarter to terrorists who would do our country harm, while at the same time ensuring fidelity to the distinctively American commitment to the rule of law, the dignity of the individual, and separation of powers.
It should be the policy of the United States that the objective of any authorized program of foreign intelligence surveillance must be to ensure that American citizens and persons in America are secure in their persons, papers, and effects, but makes terrorists throughout the world feel insecure.
The best way to achieve these twin goals is to follow the rule of law. And the exclusive law to follow with respect to authorizing foreign surveillance gathering on U.S. soil is the Foreign Intelligence Surveillance Act (FISA). As initially enacted by Congress, the exclusivity of FISA was unambiguous. Legislation must reiterate current law that FISA is the exclusive means to authorize foreign surveillance gathering on U.S. soil.
The Foreign Intelligence Surveillance Act (FISA) should be modernized to accommodate new technologies and to make clear that foreign to foreign communications are not subject to the FISA, even though modern technology enables that communication to be routed through the United States.
The Foreign Intelligence Surveillance Court (FISC) is indispensable and must play a meaningful role in ensuring compliance with the law. This oversight should include, where possible, regular judicial approval and review of surveillance, of whose communications will be collected, of how it will be gathered, and of how content and other data in communications to and from the United States will be handled.
Congress must have regular access to information about how many U.S. communications are being collected and the authority to require court orders when it becomes clear that a certain program or surveillance of a target is scooping up communications of U.S. persons.
Once the government has reason to believe that a specific account, person or facility will have contact with someone in the United States, the government should be required to return to the FISC to obtain a court order for continued surveillance. Reliance on the FISC will help ensure the privacy of U.S. persons’ communications.
Congress should not grant amnesty to any telecommunications company or to any other entity or individual for helping the NSA spy illegally on innocent Americans. The availability of amnesty will have the unintended consequence of encouraging telecommunications companies to comply with, rather than contest, illegal requests to spy on Americans.
Authorization to conduct foreign surveillance gathering on U.S. soil must never be made permanent. The threats to America’s security and the liberties of its people will change over time and require constant vigilance by the people’s representatives in Congress.
Posted by mhall at 5:51 PM | Add Comment
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