Making Sense of the Competing Surveillance Bills
Will the now-more-politicized-than-ever intelligence infrastructure, or the legal system, get to weigh in on the legality of surveillance targeting? With the House and Senate negotiating this week over how to amend the
the Foreign Intelligence Surveillance Act (FISA), it's more important
than ever to understand the issues. The Center for Democracy and Technology (CDT) tells us that although Telecom immunity has gotten all the press (certainly I've been fixated on it), judicial supervision is most important:
Yikes! The CDT provides an excellent overview, clearly breaking down what the issues are with the different bills, and what's at stake.The House bill, as noted, puts judicial approval where it belongs - at the beginning of the process. In a huge concession to the government's arguments, the House bill does not require judicial approval of individual targets, even if they might communicate with someone in the U.S. Instead, the House bill creates a system of "program warrants" or "basket orders," under which the government can designate the individual targets on its own discretion.
The House bill also takes significant steps to cut off an argument used by the Administration to justify post 9-11 warrantless surveillance outside the requirements of FISA. The House bill's "exclusivity" provision indicates that a Congressional authorization of the use of military force should not be construed to authorize surveillance unless it does so explicitly. The Senate bill, in contrast, merely repeats current law. It therefore invites the argument that Congress might implicitly authorize warrantless surveillance in the future when it authorizes the use of military force.
Send support to House leaders! Let them know you want legislation that maintains the rule of law.
~~ Center for Democracy and Technology
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One of the major problems here is that these bureaucracies, regardless of the clarity of the statutes guiding them, have attained a superb degree of power over the past six and a half years. The language of a statute is always obscenely vague because of the nature of the legislative process. That vagueness sometimes crosses judicial limits on validity and is "void for vagueness" under the due process clause. Problematically, when we're talking about wiretapping and surveillance, most of the time there's no suit brought because nobody ever knows its being done. Realistically, an agency only needs a warrant if it intends to use the information gathered in court. Otherwise, presuming some degree of conspiracy, it can simply do what it likes and then (if it's interested) gather evidence for court by legitimate means. If the agency is the CIA it simply skips all that and goes for rendition. If it's the FBI, it uses a National Security Letter to get probable cause to get a warrant.
The point is that we have agencies operating according to security service rules, not police rules. The rule of law stopped being adequate when FISA made warrants a post facto affair and when citizens ceased to have a political party that was fundamentally hostile to the idea of gendarmes-type activity in the United States. The only threat that these agencies really listen to is the threat of removal of funding or maybe the threat of their directors being sacked.
It'll be necessary for a generation to grow up frightened of the government, but with no memory of 9/11 before any real change can be made. Again, this isn't new. "Remember the Maine!" put us into an absurd war that was really about competing in the colonial game. The sinking of that ship and the Roosevelt Corollary to the Monroe Doctrine are quite similar to 9/11 and the Bush Doctrine of Preemptive War. Same game, new toys.