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.