Thursday, July 13, 2006

Wiretapping issue goes to FISA

A busy day today for the "Is it constitutional?" division of Midtopia.

Besides the Padilla case popping back up, President Bush has agreed to allow the FISA court to review the legality of his warrantless eavesdropping program.

Mr. Specter, a Pennsylvania Republican who has sharply questioned the propriety of the program since it was disclosed several months ago, said the White House had agreed to a bill that provides for the highly secret Foreign Intelligence Surveillance Court to “consider the program as a whole and to make a decision on it.”

Sounds good, but the devil is in the details. For instance:

Mr. Specter said the bill would give the administration “greater flexibility” in applying for emergency eavesdropping orders and would recognize changes in technology, like cellphones, with more specific language on “roving wiretaps.” Ms. Perino agreed with the senator’s assessment, saying that the bill would modernize regulations “to meet the threats we face from an enemy who recognizes no bounds, kills with abandon, hides and masquerades as it plans attacks against us.”

"greater flexibility" could mean a lot of things. I'm all for a reasonable set of rules for determining when a warrant is needed and when it's not. But I hope Specter didn't give away the store -- especially because I have yet to hear a compelling argument for why Bush had to bypass FISA in the first place.

For instance, Specter told committee members that the bill would require government investigators to explain a wiretap's terrorism connection. That's a much looser standard of proof than FISA requires -- loose enough that oversight might prove meaningless.

The bill still has to pass the Senate and be signed by Bush. But while that may take time, it's presumably not a big problem.

We may never know if this fixes the problem or not. Because FISA court decisions are (necessarily) secret, and Specter wouldn't say whether the court would announce the results of its review.

To refresh your memory, here are a couple of summary posts I wrote back when this first came to light:

Eavesdropping primer
Eavesdropping deductions

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