Thursday, July 27, 2006

Eavesdrop "Compromise": I Smell a Rat

Back on July 14, I declared myself "cautiously optimistic" on the deal reached between the Administration and Senator Specter on the NSA eavesdrop program. I cannot say that is the case anymore. After yesterday's Senate Judiciary Committee hearings on the issue, it appears that the Administration is seeking even more power outside the FISA framework.

While the agreement would still submit the eavesdrop program to the FISA court for review, it would also provide a Congressional blessing for the extralegal activity: "the White House had insisted that the bill include language implicitly recognizing the president’s 'constitutional authority' to collect foreign intelligence beyond the provisions of the 1978 law," as Eric Lichtblau reports in this morning's NYTimes. To accept such a formulation is to say that the president can go beyond FISA basically any way he wants, any time he wants ... just because he can.

What really bugs me about this entire discussion is that the Administration's arguments for ignoring the FISA requirements are incredibly lame. Yesterday NSA director Gen. Keith Alexander told the Judiciary Committee it would be a "tremendous burden" if his agency had to pursue a warrant for each target: "You would be so far behind the target, if you were in hot pursuit, with the numbers of applications that you would have to make and the time to make those, you could never catch up." And that is exactly why FISA allows 72 hours in which the surveillance can occur before a warrant is sought (if that period needs to be extended slightly, fine, make it a week or something).

Walter Pincus, on the story today for the Washington Post, notes that Senator Feinstein (no fool on intelligence matters) said that "based on what she had learned in secret briefings about the number of U.S. citizens subject to wiretaps, the surveillance program 'is easily accommodatable to an individual warrant for U.S. persons.'" Of course the NSA folks disagreed.

But there's more - the loopholes have only begun to rear their ugly heads. Assistant Attorney General (aciting) Steven Bradbury noted that the Specter-(Bush) legislation "would 'encourage' - but not require - Bush or a future president to present any future surveillance program to the secret FISA court for approval." Also, according to Pincus, "Bradbury stressed that the president retained authority to institute such a program on his own and that Bush's pledge to submit the program for judicial review was only 'if the chairman's legislation were enacted in its current form or with the further amendments sought by the administration.'"

And that's even before we get to the signing statements. I have to say, I smell a rat. While I appreciate what Senator Specter's tried to do here, I think he got a raw deal.


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