Start, of course, with Jack's absolutely essential post putting this in a broader perspective.
Then check out this post by Publius at Obsidian Wings (it's a great site even when hilzoy is on vacation): "The White House bill includes some minimal hoops the government must first jump through, but to call them toothless is an insult to those without teeth. As those with children know, bare-gum chomps can still hurt the finger."
Publius's focus is on the lack of transparency -- the fact that we haven't had a public debate about whether the government should be able to freely listen in on all our foreign communications. Perhaps that's something that doesn't bother Americans much in this age -- who knows?:
It’s pretty clear that the administration wants the authority to conduct electronic surveillance basically anywhere and anytime for anti-terrorism purposes. Perhaps I’m naïve, but I think they’re motivated by good intentions. R egardless though, if you want this type of power, come out and say it. Let’s have a debate on that specific question.To similar effect, in our comments section (yes, it can be useful if we all simply ignore the provocateurs!), "occasional observer" observes this:
Maybe privacy is quaint in the age of digitally-enabled terror. Maybe we need to rely on the political process (i.e., elections) for protection. I disagree with both views, but we should at least have that debate. Say what you will about John Yoo, he at least doesn’t pull punches. He wants a vast expansion of executive power and doesn’t try to dress it up in different clothes.
But "different clothes" is exactly what we got with the FISA debate. We got the White House spokesman pretending to affirm strong privacy and civil rights protections. We got a bunch of meaningless oversight procedures that do nothing but give the appearance of oversight. That’s not how democracy is supposed to work. More to the point, democracy can’t work when the terms of important debates are cloaked in dishonesty and Kabuki.
Orin Kerr has now weighed in at some length. His general take is this: "On the merits, I think this legislation on the whole seems relatively well done. I would have tinkered with it in some ways, and there are parts I'm not sure about, but the basic structure seems pretty good. Given that this is a 6-month temporary fix, not a permanent change, I tend to support it. . . . I think I basically agree with the idea that if someone is outside the United States, FISA should not regulate the monitoring of their communications. [I assume Orin here means that it's ok regardless of the extent to which, or frequency with which, such surveillance also intercepts communications of U.S. persons.] Intelligence agencies have long been able to monitor such calls from listening posts outside the U.S. without triggering FISA (think Echelon); this legislation makes the same rule apply regardless of where the communication is routed." (To similar effect, see the very interesting comment in this thread by John Thacker. John and Orin both emphasize that certain international communications have long been beyond constitutional and statutory regulation, even where they involve interception of U.S. persons' communications. Now that the government has the ability to intercept a vastly greater percentage of such communications, should the deregulatory legal landscape change, or adjust?) Orin also notes that "I have a number of concerns about the legislation from a civil liberties perspective. For example, limiting judicial review to whether it is clearly erroneous that something is reasonably designed to target those reasonably believed to be outside the U.S. seems like a pretty weak threshold. I'm guessing that the FISA Court judges will be pretty tough on this despite the statutory language, but the statutory language itself is obviously very deferential." He also focuses on, and laments, the fact that the legislation requires ISPs and service providers to give the NSA access when requested.
In the House debate just one Congressman alluded to the bill's failure to require the DNI to keep a running record of how many US persons were spied on and report to Congress. Even he failed to link this gap to the need for legislative oversight and re-evaluation down the road (without a repeat of what just went on). The useless Gang of Eight, the endless stonewalling, the reliance on newspapers to tell us what our government is doing -- none of these were spoken to.
I was stunned. The oversight function and the means and scope of intelligence gathering are easy to separate, hard to demagogue. A line in the sand could have been drawn, in negotiations and then on the floor. At worst they'd have come away with a strong talking point, an ability to say they fought the good fight, and a caret in the law for future reference.
I can only conclude that when push came to shove the Democrats didn't feel all that entitled to know what goes on. That's for the party that keeps us safe, the one that's tough enough to make life-and-death calls. The "24" guys.
In comments to Orin's post, Just an Observer gets right to the heart of what seems to me to be the critical question:
On the one hand, I have long been sympathetic to the general principle that it is a good idea to restore the rough balance that was struck in FISA in 1978, a balance that has been disturbed by technological shifts. And on one level, that is what this bill does. This legislation and the associated debate are making explicit what apparently true in 1978, but was deliberately obfuscated: That by
"directing" our surveillance at parties abroad, our government legally is allowed to listen in on most all their communications with citizens here at home, without warrants or serious regulation.
On the other hand, I am not at all sure most people even realized that is what was going on all along 25-30 years ago, and the dissonance is jarring. The same technological shifts that make it necessary to gather almost all communications at telecom switches, ISPs, etc., also make it possible. This makes a big qualitative change in the tradeoff between liberty and security. It is more feasible for the government to slurp in everything and process it, rather than just targeting certain lines. So while the 1978 legislation did not require a foreign party legally to be identified as a "target," technology effectively did require isolating them.
If the government decades ago wanted to target all my international calls, it used to be that it would be forced to do so explicitly and get a warrant. It lacked the capacity to surveille all international communications and then filter out mine. Today, that capacity is being approached.
Matt Yglesias: "[T]he Democratic presidential candidates all seem opposed to this, but I'd put the odds of any of them actually taking action to reduce their own powers once in office at approximately zero percent." But fear not -- Matt also predicts that, "at some point years from now," there'll be a rollback when "some story will break about a truly abusive use of these surveillance authorities." Kinda like what happened to bring us . . . FISA.
0 Comments