NYT on FISA -- Part I: After the vote

By Carol Gee

Foreign Intelligence Surveillance Act - Today James Risen and Eric Lichtblau of The New York Times, thank goodness, are still looking at the law under FISA as recently pushed through and amended by Congress. Democratic leaders opposed the legislation, but did not successfully block it, out of fear that they would be criticized as being soft on terrorism. Many of the members may not have realized what they were doing, said Congressional aides to the authors.

The NYT reports that Congressional Democrats have been meeting with the administration to raise their concerns that the legislation is "overly broad and troubling," and "and may have given the administration more surveillance powers than it sought." The very vocal complaints also spoke to "the diminished role of the FISA court, which is limited to determining whether the procedures set up by the executive administration for intercepting foreign intelligence are 'clearly erroneous' or not." To quote further from their very informative (8/19/07) article,

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

. . . Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States. These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

. . . Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions. Whether intentional or not, the end result — according to top Democratic aides and other experts on national security law — is that the legislation may grant the government the right to collect a range of information on American citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas.

Whatever explanations and mixed messages are given by the administration, we can only hope that Democrats coming back into session will not feel they must sit idly by for month after month, knowing they made a serious constitutional mistake, or several mistakes. They are not required to remain impotent. Are there no remedies? No ideas? Is there no chagrin? No outrage?

Part II of this series will explore the administration's stated views on implementing the new bill.

(Cross-posted at South by Southwest.)