NSA sealJames Risen and Eric Lichtblau, the New York Times reporters who originally broke the warrantless domestic spying story, report further on the recent legislation gutting the Foreign Intelligence Surveillance Act (FISA). Their report on two recent meetings between Bush Administration/Department of Justice lawyers, concerned members of Congress and others opposed to the FISA gutting have confirmed that the statute the Administration stampeded Congress into passing goes well beyond the so-called intelligence “gap” reportedly created by the FISA Court when it declared that foreign-to-foreign communications routed through the US could not be monitored except under FISA’s warrant requirements.

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said. . . .

The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought.

It also offers a case study in how changing a few words in a complex piece of legislation has the potential to fundamentally alter the Foreign Intelligence Surveillance Act, a landmark national security law. . . .

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.

I don’t know which claim is less credible: Is it the Administration’s argument, which Risen/Lichtblau report without comment, that they never intended such an overly broad gutting of FISA and do not intend to interpret the new statute that way, even though we know the DNI McConnell reportedly agreed to a narrower statute worked out with Congressional Democrats, only to have that version replaced by a much broader bill written by the White House? Or is it the Democrats claiming they are surprised that the Administration so badly misled them? How many examples of total duplicity does it take before the Democrats learn they cannot trust this Administration on any matter and should never cave to any Administration threat, especially when Constitutional rights are directly at stake?

The facts reported by Risen/Lichtblau are appalling on several levels. Above all, they confirm that even ignoring the leadership failures to coordinate their strategies in the final days before passage, Congressional Democrats were recklessly irresponsible in hastily passing a bill they failed to read and understand and still cannot explain to the public. They passed it even though they knew that the bill’s subject matter involved critical issues of Constitutional rights, individual and business privacy, and problematic domestic spying by the NSA, an organization that was never meant to spy on American citizens.

The Democrats also knew the Administration’s history in willfully violating the warrant requirements of FISA, and they knew the Administration has yet to explain what it is doing and how it can be legally justified. They knew the Administration had engaged in activities that were so blatantly unlawful that the previous Attorney General, the acting Attorney General and the Director of the FBI were prepared to resign if the activities continued. Yet knowing all this, they passed a bill written entirely by the Administration and never vetted through hearings that gutted FISA, a 28 year old statute that had been carefully crafted and updated after extensive public hearings. They recklessly gutted a statute designed to protect our rights against government abuses that had occurred during the Nixon and prior administrations, abuses that, given the Bush/Cheney regime’s history and statements, the Democrats knew were probably at risk here.

Second, the article confirms the suspicions that the Administration knowingly misled Congress, claiming a limited FISA amendment was necessary to correct the foreign-to-foreign intelligence gap when in fact they knew that the bill language they drafted went far beyond that limited fix. The Administration denies it would ever interpret the statute in ways that pushed an extreme view of executive power; are we to believe this from an administration that has never held back on pushing extreme views of executive powers?

Third, the article reveals that in the Administration’s view, there never was a foreign-to-foreign intelligence gap at all. The Bush attorneys told meeting attendees they believed that the President had inherent Constitutional Authority to gather foreign-to-foreign intelligence without complying with either the new statute or FISA’s warrant requirements. This means that if Congress had done nothing to change FISA provisions that arguably limit foreign to foreign surveillance, the Administration believed it could have continued warrantless surveillance of foreign-to-foreign communications, just as it had been doing all along without Congressional objection. (There is a separate question whether statutes other than FISA restricted the executive’s authority to conduct strictly foreign communications, but even it that is true, it would not require that FISA be gutted.)

To be sure, the FISA Court had reportedly held that foreign-to-foreign communications that are routed through the US fell under the FISA definition of “electronic surveillance” that triggers FISA’s warrant requirements. But it can be argued that this result was a consequence of technological changes that Congress never considered or intended. FISA was designed to deal with “electronic surveillance” of communications in which at least one party was lawfully in the US — the protections were meant for persons in the US, not persons outside the US. If Congress never intended exclusively foreign-to-foreign communications to be the types of “electronic surveillance” Congress intended to regulate through FISA, that fact would seem to affect the arguments about the President’s inherent Article II powers.

So I’d like to see more legal discussion of this issue. The argument would be that under Youngstown, where Congress intended to regulate in an area and did so, such as by stating expressly that FISA’s warrant provisions are the exclusive method when dealing with electronic surveillance of communications involving persons within the US, the argument for inherent Presidential power to do otherwise — without a FISA warrant — is very weak. But where there is no clear indication that Congress intended that result to apply to foreign-to-foreign communications, the arguments for inherent Presidential powers is much stronger, because there is no clear Congressional intent to limit the President’s authority.

To be sure, given the ambiguity, a limited FISA carve-out for such foreign-to-foreign communications would have been appropriate — not that the Administration would have accepted such a limited fix; it rejected that during the discussions with Congress. That limited fix would have provided clarity and avoided dispute and legal risks. But it is simply not true that the Administration believed intelligence gathering of strictly foreign communications could not occur. The Administration’s argument that we were confronted with a dangerous gap in our ability to conduct foreign intelligence, an argument leaked to the media by the Administration and Republican Congressmen and which was used to stampede Congress into enacting another unconstitutional law, gutting long-time and carefully thought out protections for individual rights, was simply a lie. How many times will Congressional Democrats allow themselves to be stampeded by an Administration that simply cannot be trusted to deal in good faith on anything that matters?

If this analysis is correct, it may be that the best course of action in fixing this mess is to do nothing; let the awful statute expire, rather than engage an untrustworthy Administration in negotiations that could extend the worst provisions further. The Democrats could attempt to pass a “clean,” limited fix and nothing more, but there seems little hope that the White House or their Congressional supporters would agree to pass it. The Democrats should have the good sense to say, “fine; we tried, but you’re asking that we do something that violates the Constitution and we won’t even consider that. Let the law expire.”

Until then, we have a another unconscionable mess to clean up when the lawless Bush/Cheney/Gonzales regime is finally removed from office. Don’t count on it happening before then, because nothing truly important to the public welfare that requires the regime to stop its lawlessness and lying is likely to occur as long as this dishonest gang remains in office.

For other useful background and perspectives, start with emptywheel here and the links at The Next Hurrah, Anonymous Liberal here, as well as Marty Lederman here and here, and Glenn Greenwald here.

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  3. Holder Refuses to Stand by Statements Saying Violating FISA Breaks the Law
  4. House Judiciary Committee to Propose PATRIOT and FISA Reforms
  5. Can Skittles help fix the PATRIOT Act and FISA?