No Comment — August 20, 2007, 2:07 am

The FISA Bamboozlement, Continued

James Risen and Eric Lichtblau offer some significant further analysis of the recent Administration-sponsored amendment of the FISA statute in the New York Times.. Electronic surveillance, they note, was just the tip of an iceberg. It went far beyond that.

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.

For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.
It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month’s Congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans.

“We did not cover ourselves in glory,” said one Democratic aide, referring to how the bill was compiled. But a senior intelligence official who has been involved in the discussions on behalf of the administration said that the legislation was seen solely as a way to speed access to the communications of foreign targets, not to sweep up the communications of Americans by claiming to focus on foreigners.

A chronicle of the Bush Administration is certainly going to come back to the tactics of legislative bamboozlement used by the Bush White House and make some observations. The tactics are recurrent from late in 2001 forward: they involve the careful formulation of legislative plans over long periods, with a focus on consciously deceptive use of language. The legislative proposals are then invariably sprung just on the eve of the conclusion of a session or a holiday, with a maximum amount of pressure for Congressional action. No hearings, please. No extended dialogue trying to parse what we mean. Then the Administration deploys its lobbyists in full force holding dozens of private meetings with legislators thought key. “This legislation is about a simple problem, namely x. We will cure that problem. Nothing else. Just trust us.” When the vote is taken, and the results are in, we quickly learn that the legislation was certainly about x, but it has been filled with obscure, almost incomprehensible provisions which, in the view of the David Addingtons of the world, authorize all sorts of other mischief that no one ever for a second mentioned in the brief deliberative process.

These are reprehensible, fundamentally anti-Constitutional practices on the part of the Bush White House. But should we really have sympathy for the legislators who tolerate this sort of bamboozlement? They are disregarding their vital Constitutional mandate. In the charge of the Founding Fathers, laid down most clearly by James Madison, it is their duty to insure a steady careful process of legislating in the sunlight—to weigh and deliberate the issues at hand before a law is passed. This they consistently fail to do. And the switch in control of the Congress from Republican to Democratic leadership hasn’t produced a detectable change.

One other passage in this article badly needs to be highlighted, involving two men, both career Republicans, who reflect the opposite ends of the current controversy:

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.”

The conduct ascribed to Wainstein really reflects the essence of the Gonzales Justice Department. In the current regime, the rule of law has been completely subordinated to the political agenda of the Department’s leadership and the White House. Wainstein’s refusal to give assurances that he would abide by a law just enacted by Congress and signed by the president is nothing short of astonishing. It’s a mark of profound institutional decay at the Justice Department; a mark of rampant politicization.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

July 2016

American Idle

= Subscribers only.
Sign in here.
Subscribe here.

My Holy Land Vacation

= Subscribers only.
Sign in here.
Subscribe here.

The City That Bleeds

= Subscribers only.
Sign in here.
Subscribe here.

El Bloqueo

= Subscribers only.
Sign in here.
Subscribe here.

Vladivostok Station

= Subscribers only.
Sign in here.
Subscribe here.

The Ideology of Isolation

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The City That Bleeds·

= Subscribers only.
Sign in here.
Subscribe here.

"Here in this courtroom, in this city, in this nation, race and the future seem so intertwined as to be the same thing."
Photograph (detail) © Wil Sands/Fractures Collective
Post
Inside the July Issue·

= Subscribers only.
Sign in here.
Subscribe here.

Tom Bissell on touring Israel with Christian Zionists, Joy Gordon on the Cuban embargo, Lawrence Jackson on Freddie Gray and the makings of an American uprising, a story by Paul Yoon, and more

i. stand with israel
I listen to a lot of conservative talk radio. Confident masculine voices telling me the enemy is everywhere and victory is near — I often find it affirming: there’s a reason I don’t think that way. Last spring, many right-wing commentators made much of a Bloomberg poll that asked Americans, “Are you more sympathetic to Netanyahu or Obama?” Republicans picked the Israeli prime minister over their own president, 67 to 16 percent. There was a lot of affected shock that things had come to this. Rush Limbaugh said of Netanyahu that he wished “we had this kind of forceful moral, ethical clarity leading our own country”; Mark Levin described him as “the leader of the free world.” For a few days there I yelled quite a bit in my car.

The one conservative radio show I do find myself enjoying is hosted by Dennis Prager. At the Thanksgiving dinner of American radio personalities (Limbaugh is your jittery brother-in-law, Michael Savage is your racist uncle, Hugh Hewitt is Hugh Hewitt) Dennis Prager is the turkey-carving patriarch trying to keep the conversation moderately high-minded. While Prager obviously doesn’t like liberals — “The gaps between the left and right on almost every issue that matters are in fact unbridgeable,” he has said — he often invites them onto his show for debate, which is rare among right-wing hosts. Yet his gently exasperated take on the Obama–Netanyahu matchup was among the least charitable: “Those who do not confront evil resent those who do.”

Artwork: Camels, Jerusalem (detail) copyright Martin Parr/Magnum Photos
Post
Europe’s Hamilton Moment·

= Subscribers only.
Sign in here.
Subscribe here.

"We all know in France that as soon as a politician starts saying that some problem will be solved at the European level, that means no one is going to do anything."
Photograph (detail) by Stefan Boness
[Report]
How to Make Your Own AR-15·

= Subscribers only.
Sign in here.
Subscribe here.

Even if federal gun-control advocates got everything they wanted, they couldn’t prevent America’s most popular rifle from being made, sold, and used. Understanding why this is true requires an examination of how the firearm is made.
Illustration by Jeremy Traum
Article
My Holy Land Vacation·

= Subscribers only.
Sign in here.
Subscribe here.

"I wanted to more fully understand why conservative politics had become synonymous with no-questions-asked support of Israel."
Illustration (detail) by Matthew Richardson

Average number of Americans who are injured by chain saws each year:

36,000

A farmer in Kenya bit a python who tried to eat him.

A former prison in Philadelphia that has served as a horror-movie set was being prepared as a detention center for protesters arrested at the upcoming Democratic National Convention, and presumptive Republican presidential nominee Donald Trump fired his campaign manager.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today