The Latest, Not Greatest, Proposed Revisions to Electronic Surveillance Law, Part 2

1. The Democratic leadership pulled its version of surveillance reform off of the House floor yesterday, according to National Public Radio, after the Republicans proposed the following change to the Democrats proposed change to the Section 105A "exception"…

What threw the bill into limbo was a motion by Lamar Smith (R-TX) to send the bill back to committee for an amendment. That amendment would allow any form of surveillance of Osama bin Laden, al-Qaida or other designated terrorist groups. Smith says it revealed a fatal flaw in the Democrat's legislation.

If the Republican amendment had passed, the revised law would have allowed American intelligence agencies to authorize electronic surveillance without court system involvement when…

1. The party under surveillance was a "non-United States person" outside of the United States, communicating with another "non-United States person" outside of the United States, or
2. The party under surveillance was outside of the United States and associated with a known terrorist group.

The Democratic leadership supported item 1, but did not want members of their party to have to vote on item 2. Draw your own conclusion about what that means, though you might want to start with the Baltimore Sun's reporting…

It was the most recent embarrassment for Democrats in efforts to update laws governing domestic spying by the National Security Agency and other U.S. agencies.

2. Here is a strange and underreported facet of this story: The proceedings of the Foreign Intelligence Surveillance Act court are shrouded in such secrecy, no one, save for a few privleged government officials, has been allowed to read the ruling where the court decreed expanded jurisdiction for itself! Here's Andrew McCarthy of National Review Online on the secret ruling that triggered the need for the temporary legislation we are now operating under...

Imagine if a public official, safe in the shadows of anonymity, penned a directive that radically rewrote American intelligence-collection law — statutes enacted by our democratically elected officials and signed into law by elected presidents (including elected Democrat presidents, hyper-sensitive to privacy concerns).

Imagine that, rather than having such a critical national security decision made in the light of day, the anonymous public official issued the directive in secret — insulated from any political process in which the people whose lives hang in the balance were free to determine the appropriate line between liberty and security.

Imagine that we were not just barred from learning the name of the official; we were actually foreclosed from reading the directive under which we were now ruled....

Earlier this year — in the middle of an armed conflict against an international terror network which is promising renewed, 9/11-style attacks against the Homeland — an anonymous judge of the secret FISA court issued a classified ruling which radically altered decades-old, bedrock assumptions of foreign-intelligence law. The stealth directive deeply damaged the ability of the United States to investigate and prevent terrorist attacks.

We have not been permitted to learn the name of the judge. We have not been permitted to read the ruling — a ruling that so rocked the political branches that it became the subject of emergency curative legislation this summer. Legislation that is set to expire in about four months … after which we could once again be living not under FISA but under the secret whims of the FISA court.

Specifically, the judge ruled that our intelligence community now needs the permission of a federal judge before it can conduct electronic surveillance on non-Americans outside the United States who are communicating with other non-Americans outside the United States.

Mr. McCarthy is a former Federal prosecutor who prosecuted the first World Trade Center bombing case, so he is very familiar on this area of the law, but if you are skeptical about taking him at his word, note this otherwise curious qualifier in the Los Angeles Times pro-Democratic position editorial on the proposed new law…

Only this year, after the election of a Democratic Congress, did Bush shift ground and agree to allow the program to be supervised by the secret federal court created by FISA.

This acceptance of judicial oversight proved to be short-lived. When the court found fault with aspects of the program -- reportedly ruling that FISA required the government to seek a court order for "foreign-to-foreign" communications that are routed through the United States -- Bush pressed Congress to do much more than close what everyone agreed was a loophole created by advances in technology.

Reportedly?

Which procedure makes more sense for protecting civil liberties: Having elected representatives debate the procedures for surveillance and set the rules out in the open -- like we're doing right now, in case you haven't noticed -- or letting unelected, unaccountable judges set procedures in secret rulings that the public is not even allowed to read after-the-fact?