How Bad Is It?

Thanks to a rush-job from Congress, and some help from a couple of dozen craven Dem lawmakers, the president signed into law yesterday a new bill that offers him broad to surveillance powers, including the ability to eavesdrop on American citizens’ international communications without a warrant.

How bad is the new law? Details are a little sketchy — not surprising, given the classified subject matter — but it appears all the illegal activities the administration was engaged in have now been made legal.

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

Whereas the law previous insisted that the administration get FISA Court-approved search warrants to eavesdrop on communications involving Americans citizens on U.S. soil, this new law changes the landscape. If the federal government wants to spy on someone, and the target is “reasonably believed” to be overseas, a warrant is no longer necessary.

And the “target” need not be a suspected terrorist. If the administration believes a U.S.-to-foreign conversation might serve some kind of intelligence-gathering purpose, it can go ahead and eavesdrop without oversight.

The consequences are rather startling.

For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.’s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

“It’s foreign, that’s the point,” Mr. Fratto said. “What you want to make sure is that you are getting the foreign target.”


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And what about the safeguards in place while the administration is spying on the foreign target? Well, surveillance is now approved by the Attorney General and the Director of National Intelligence, instead of the special intelligence court. FISA judges will now “review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.”

Better yet, the AG and DNI can now force telecommunications companies to cooperate with such spying operations, without pesky legal burdens and court orders.

For more on the bill, I’d encourage readers to check out this item from my friend publius, this from Orin Kerr, and this from Marty Lederman, all of which offer valuable and helpful insights.

I’d just add this: for Congress to carelessly give Bush these kinds of powers is asking for abuse and a grand scale. Lawmakers who voted for it ought to be ashamed.

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