FISA Sidesteps, Now With Added Dem Goodness

By Cernig

Marty Lederman dissects the White House preferred new (and temporary) FISA amendment. Every Republican voted for the bill, as did 16 Democrats, and Marty has the list of Dem supporters.

His conclusion, short version, is that the pitch from Senate Dems who voted for this thing is ""Vote for the FISA Amendment -- It Tramples on Even Fewer Liberties Than the Military Commissions Act!"

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

The key term, obviously, is "directed at." The bill includes no definition of it.

And the White House will continue to data-mine US citizens - because that isn't surveillance directed at a particular person, its a general trawl, so the bill lets them sidestep FISA requirements.

Thoreau adds the needed snark:

Sen. Christopher Bond (R-East Germany), the co-author of the warrantless wiretap bill, said after Senate passage of the bill “I can sleep a little safer tonight.”

Really? You feel safer when the state can act without restraint? Then surely Russia must be the safest place on earth right now. Senator, would you care to spend a night in Chechnya, a place where the Russian military acts without regard for any law, without your usual bodyguards?

That’s the bottom line. If unrestrained states are really better at combating Islamic terrorists, why is Chechnya so dangerous?

It's a great idea - those who support the Bush concept of unlimited executive power over the State can go back to Russia.