NYT on FISA - Part II: Administration's position

By Carol Gee

Foreign Intelligence Surveillance Act - In the Sunday (8/18/07) news, James Risen and Eric Lichtblau of the New York Times, thank goodness, are still looking at the law under FISA. In Part I of this series, I explored the genesis of the domestic spying law being amended and the sorry history of what may have been done to it by both the administration and Congress. This post explores the administration's intentions about implementing their new bonus powers.

One of the most significant new revelations of the New York Times article, concerns what the administration spokespersons asserted regarding the new law. The amended FISA law gives the director of national intelligence, Mike McConnell, and Attorney General Alberto R. Gonzales the power to set up the new procedures and approve the way surveillance is conducted. To further quote the reporters on this crucial aspect of the issue - the position of the administration about what they will do or not do under the new FISA law,

. . . Vanee Vines, a spokeswoman for the office of the director of national intelligence, said the concerns raised by Congressional officials about the wide scope of the new legislation were “speculative.” But she declined to discuss specific aspects of how the legislation would be enacted.

. . . The legislation “restores FISA to its original and appropriate focus — protecting the privacy of Americans,” said Brian Roehrkasse, Justice Department spokesman. “The act makes clear that we do not need a court order to target for foreign intelligence collection persons located outside the United States, but it also retains FISA’s fundamental requirement of court orders when the target is in the United States.”

. . . At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

. . . Asked whether the administration considered the new legislation legally binding, Ms. Vines, the national intelligence office spokeswoman, said: “We’re going to follow the law and carry it out as it’s been passed.”. . . Bush issued a so-called signing statement about the legislation when he signed it into law, but the statement did not assert his presidential authority to override the legislative limits.

The authors do not name the Democrats meeting with the White House about the amended FISA law. We would not be surprised if none of the misguided Senators or House Members who voted to approve the bill came to complain about it to the administration. They would leave that fight to those losing Democrats whose votes did not prevail that late Saturday night. It is now too late for the "yes"voters to read and understand the legislation they passed. My general understanding is that one reads and understands before casting a vote.

Yes, I am still so mad at those on THE YES LIST, (corrected) I can hardly resist continuing to complain. My planned forgiveness remains incomplete, not that it matters in the least, of course.

Cross-posted at South by Southwest.