More Friends of FISA

Last week we predicted that Congress would react to the unwarranted wiretapping scandal by retroactively legalizing the administration’s action in some way. Well, Senator Arlen Specter has drafted legislation that would do just that, and more. As Marty Lederman points out in his extremely informative post (the whole thing is worth reading, here), the legislation appears as if Congress is stepping in and tightening the reigns on the administration, but in fact, the bill would do nothing to restrain the President, and would go a very long way in legitimating and providing legal cover for Bush’s activities.

In fact, this supposed restoration of checks and balances (at least that is the impression given by the Washington Post) is not only markedly worse than the original FISA statute, it is arguably a significant step back from the pre-1978 scenario, because the secret FISA court both holds responsibility for ensuring that the program as a whole is "consistent" with the Constitution, and at the same time, would be prevented from determining specific Fourth Amendment violations. In other words, the "review" offered by the FISA court is review in name only; all it would do is certify the program on a whole, but it cannot hear individual cases. As Lederman points out: "See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application."

It doesn't get any broader or vaguer than that. This bill would improve markedly on an already rubber stamp court by making it virtually impossible to exercise meaningful review. Not that there is much room for improvement; as we've noted, the old FISA court was not exactly a palladium of liberty.

So, here's our question: where are you, liberal media? So great and widespread were the howls of outrage over the initial NSA program that Bush - who jumps at any chance he gets to play War President - was sent scurrying back to Congress for legal cover. Congress is in the process of responding with a program that embraces the worst aspects of the spying program and graces it with a patina of legality and an utterly toothless review process - a program that is undoubtedly worse than the original illegal spying. So let's hear it... where is the outrage? Do the mainstream media really think it is so much better to be spied on legally rather than illegally? Is it that much better for secret wiretapping to be backed with congressional acquiescence than without? Do you feel any freer with the knowledge that the secret spying program will once again be approved by a secret court, unable to hear appeals or even review individual cases?