Thursday, March 09, 2006

Congress caves on NSA spying

A proposed Senate compromise would allow warrantless eavesdropping on Americans as long as the executive branch asserts it has probable cause.

The Republican proposal would give congressional approval to the eavesdropping program much as it was secretly authorized by Bush after the 2001 terrorist attacks, with limited notification to a handful of congressional leaders.

So much for holding the executive branch accountable.

The "probable cause" standard is better than the "reason to believe" standard the administration was using, but it's toothless because the administration will not have to prove "probable cause" before a court; they can just assert it.

Because the FISA court standard for issuing a warrant is also "probable cause", the only logical reason to bypass the court is because the executive branch doesn't think it's assertion of probable cause will stand up to scrutiny.

The bill does impose more Congressional oversight:
after 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new subcommittees why it could not seek a warrant.

So what is essentially happening is that we're extending the period where the government can eavesdrop without a warrant from three days to 45. But instead of then having to prove its case before the FISA court, the administration can simply explain itself to a subcommittee. There's no indication that the subcommittee has any power to end a surveillance if the "probable cause" is found lacking. So there's really no effective limitation on government spying.

This is what impresses me the least:
the Republican senators who drafted the proposal said it represented a hard-wrung compromise with the White House, which strongly opposed any congressional interference in the eavesdropping program.

"The administration was intransigent, and this was the best we could do." Well, nonsense. Consulting the executive branch is a good idea, but Congress should be deciding for itself what the law should be and enacting it, not seeing how well they can do in negotiations with the executive branch. It's an abdication of power.

Congress should investigate the program and then have a full and open debate on how we should handle eavesdropping on Americans. This attempt to squelch the issue should be rejected.

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