NY Times baselessly reported that Democrats "have called for the [FISA] law to be revamped"
SUMMARY: In an article about potential congressional hearings on the Bush administration's warrantless domestic surveillance program, The New York Times reported that "Democrats and a growing number of Republicans [who] say the eavesdropping violates" the 1978 Foreign Intelligence Surveillance Act (FISA) "have called for the law to be revamped." But the article did not cite any Democrats who have expressed this view, and the available evidence suggests otherwise.
In a February 17 article by reporters Eric Lichtblau and Sheryl Gay Stolberg about potential congressional hearings on the Bush administration's warrantless domestic surveillance program, The New York Times reported that "Democrats and a growing number of Republicans [who] say the eavesdropping violates" the 1978 Foreign Intelligence Surveillance Act (FISA) "have called for the law to be revamped." But the article did not cite any Democrats who have expressed this view, and the available evidence suggests otherwise.
As the Times article noted, Senate Democrats -- led by Senate Intelligence Committee ranking member John D. Rockefeller IV (D-WV) -- have pushed for a "full-scale investigation" into the warrantless surveillance program, including whether the program complies with FISA. Rockefeller's approach stands in stark contrast to that of Senate Intelligence Committee chairman Pat Roberts (R-KS), who has said he opposes an investigation, and has instead suggested he favors exploring a legislative approach to resolving any legal conflicts between FISA and the administration's program.
Moreover, Rep. Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, has openly opposed amending the FISA law to accommodate the administration's warrantless surveillance, stating that the program "should fit under FISA as currently drafted." From the February 12 edition of NBC's Meet the Press:
HARMAN: Let's -- let's understand that our Constitution really is the issue here. The Fourth Amendment requires probable cause to listen and seize property of Americans. Every one of us wants to catch Al Qaeda and its affiliates. All of us want the president to have the tools. I just voted again for the Patriot Act. I believe we need modern tools. And, oh, by the way, FISA was modernized eight times in the Patriot Act after 2001. It is not a quaint, little, old thing that doesn't work here. It can work here, and I think the entire program should fit under FISA as currently drafted. We don't even need to amend FISA.
It would be the dream of any defense attorney to be able to change the issue from their client VIOLATING THE LAW to a discussion of how the law should be changed in order for their client to not have violated it.
There is a problem with this wish. EVEN IF a law is changed, this does not apply to any who violated it when it was still in effect with the old provisions.
First things first. FIRST, determine how many ways and how broadly the Bush Administration has been violating the law, and prosecute accordingly (i.e. IMPEACH).
THEN, if lawmakers want to review any statutory program to see if it needs to be "tweaked" in order to function better, let them have that discussion, AFTER the lawbreakers have been thrown out.
In order for the LAW to matter at all, the first step is to make sure those involved in making or enforcing it actually RESPECT the law, and hold to their oaths to honor LAW and the Constitution. It would be pointless to "adjust" a LAW for people who claim to be able to ignore it at will.
Tex:
Thank you. It is not possible to define the issue more succinctly and more accurately than did you.
KC Geezer
The administration still has not given a credible argument as to why this program was not under FISA in the first place. There is no need to amend FISA; we just need to find out why the president chose to break the law and take the appropriate action against everyone involved.
The eternal republican ideal , right up there with the golden rule: he who has the gold makes the rules, and might makes right!
Imagine if the Times would have said "Republicans call for Bush impeachment" without it being true. This is exactly what has happened in this article, where It's been falsely stated that Democrats called for a "fix" to FISA. Do not forget to contact them.
What's the excuse for such reporting? Sloppinesss? Laziness? Rush to print? Or is there a more sinister "agenda" by the NYTimes? The NYTimes has zero credibility and it continues to go down the tubes. It's the most overrated media outlet in the history of journalism. OK, the Magazine section is tolerable, the Arts and Leisure section, ok...the sports section. If you must buy this miserable rag, peel off the first two sections and let your dog use them as a toilet, which is all they're good for. Damn newspaper ought to be sued for all their lies.
Bush was just here (in Tampa), and talked about how 'if someone's talking to Al-Qaeda, then we're gonna listen...'. Well, if it can be PROVEN (within 72 hours) that is WAS Al-Qaeda, then you should have no problem getting a warrant, now should you? No one's saying you can't 'listen in on Al-Qaeda', or any other proven terrorist group. But you still have to PROVE it, right? According to FISA, you do.
Part of the question appears to be, what is the "entire program" that "should fit under FISA as currently drafted." The only type program that would be operationally impossible to administer under FISA would be one that would not permit obtaining retroactive search warrants within three days because of the voluminous number of sources being monitored. Add to that the 2/14/06 UPI release (NSA's Russell Tice says an alternate program violated rights of millions - [link to www.upi.com] ), and one has to wonder about Harman's position saying the program could be performed under FISA.
Harmon's publicized defenses once this surfaced are of questionable merit: pleading unavailability of legal counsel and staff support to understand the program. Please. She is, after all, the ranking Democrat on the House Intelligence Committee - what about her own intelligence? She has hardly shown herself to be the watchdog the public needs in matters such as this, much like Reid in the Senate (the guy who admitted it is all over his head but if Bob Graham says it is wrong then it must be). Senator Graham doesn't seem to have raised much fuss, either, naively assuming they would operate under FISA. Why call it a new program if it is the same program?
I've been harping for several weeks that all Lindsey Graham and Reid care about is Congressional oversight, and that what they have touted from the beginning is unacceptable: amending FISA to permit what the non-partisan experts are decrying on constitutional bases. TEX is right: do we want Congress retroactively approving the monitoring of the mail of citizens who have not committed even suspicious acts, let alone acts that rise to the level of showing probable cause to believe a crime is being committed? I wish the answer were "no," but to too many folks, the answer is "no, unless it is part of the 'war' on terrorists."
Patrick Leahy seems to be the only one near the top with sufficient understanding of all the underlying issues to lead and protect (see him on Lehrer's show at [link to www.pbs.org] but he is probably "too liberal" for anyone other than a progressive to bother listening to. Maybe guys like Clinton are once in a history phenomena: O brother, wherefore art thou?
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1811
§ 1811. Authorization during time of war
Release date: 2005-03-17
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
What? Congress didn't declare war you say?
(c) War Powers Resolution Requirements.- (1) SPECIFIC STATUTORY AUTHORIZATION.-Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
link: [link to www.c-span.org]
The WAR POWERS ACT is the chickenshit way for congress to give any administration the power to wage war without specifically approving a war resolution.
We ARE at war and congress DID grant Bush the power to wage war.
Now that we've cleared that up, let's also clear something else up. This administration (republicans) are notorious for wanting to change existing law to suit their agenda. Remember the desire for republicans to change the rule of the senate to allow Tom Delay to retain his leadership position while under indictment?What about pre-packaged news reports that are in clear violation of existing law? they didn't try to change the law, they just ignored it, and we can't forget Sen. DeWine's attempt to amend FISA to allow for what is now an illegal operation. How can Sen. Roberts claim that an investigation into an illegal operation under existing law is not necessary. I suppose the same way he claimed that part 2 of the 9/11 commission's investigation was not necessary. Do we see a pattern here. Sen. Specter refused to swear in the AG. What do these people have to hide if they have done nothing wrong?. Isn't that the same arguement we hear from supporters of this program?
Tex, your summary is right on point.
If you mean to suggest that the so-called "time of war" exception to FISA applies by virtue of the Authorization for Use of Military Force Against Iraq Resolution, that is incorrect. A "declaration of war" and an "Authorization for Use of Military Force Resolution" are two distinct congressional acts. The law presumes that Congress knows the difference.
The provision of the Iraq AUMF Resolution, that you cite as evidence that Congress declared war, merely states that Congress "has enacted a specific authorization for such use of United States Armed Forces" so that the President would not be required to "terminate any use of United States Armed Forces..." within 60 days after submitting his report to Congress under 50 USC Section 1544(b), aka Section 5(b) of the War Powers Resolution.
Regardless of whether or ot we are "at war" in reality, when Congress passed FISA, it knew what a "declaration of war" was. This is evidenced by the fact that Congress used both terms in Section 5(b) of the War Powers Resolution. There has been no "declaraarion of war," within the meaning of 50 USC Section 1811, which is a prerequisite to the "time of war" exception.
Additionally, although not in response to any point you have made, I would point out that there has been no evidence that the President complied with the other requisites to the "time of war" exception to FISA, i.e. - "...to acquire foreign intelligence information,..." and, "...for a period not to exceed fifteen calendar days...."
I strongly agree with the remaining points in your post.
White House Working to Avoid Wiretap Probe, By Charles Babington, The Washington Post
Monday 20 February 2006
[link to www.truthout.org]
"The second White House flurry occurred last Thursday, as the Senate intelligence committee readied for a showdown over a motion by top Democrat John D. Rockefeller IV (W.Va.) to start a broad inquiry into the surveillance program. White House Chief of Staff Andrew H. Card Jr. - who had visited the Capitol two days earlier with Vice President Cheney to lobby Republicans on the program - spoke by phone with Sen. Olympia J. Snowe (R-Maine), according to Senate sources briefed on the call.
Snowe earlier had expressed concerns about the program's legality and civil liberties safeguards, but Card was adamant about restricting congressional oversight and control, said the sources, who spoke on the condition of anonymity, citing office policies. Snowe seemed taken aback by Card's intransigence, and the call amounted to "a net step backward" for the White House, said a source outside Snowe's office.
Snowe contacted fellow committee Republican Chuck Hagel (Neb.), who also had voiced concerns about the program. They arranged a three-way phone conversation with Chairman Pat Roberts (R-Kan.).
Until then, Roberts apparently thought he had the votes to defeat Rockefeller's motion in the committee, which Republicans control nine to seven, the sources said. But Snowe and Hagel told the chairman that if he called up the motion, they would support it, assuring its passage, the sources said.
When the closed meeting began, Roberts averted a vote on Rockefeller's motion by arranging for a party-line vote to adjourn until March 7. The move infuriated Rockefeller, who told reporters, "The White House has applied heavy pressure in recent weeks to prevent the committee from doing its job."
Hagel and Snowe declined interview requests after the meeting, but sources close to them say they bridle at suggestions that they buckled under administration heat. The White House must engage "in good-faith negotiations" with Congress, Snowe said in a statement.
Roberts, reacting to Hagel and Snowe's actions, told the New York Times on Friday that he now supports bringing the NSA program under FISA's jurisdiction in some manner, a stand that could put him at odds with the administration. The White House has praised a plan by Sen. Mike DeWine (R-Ohio) to draft legislation that would exempt the NSA program from FISA, while providing for congressional oversight.
White House spokeswoman Dana Perino said that Bush "is open to ideas from Congress regarding legislation, and we've committed to working with Congress on a bill." " -------------
I'm sure Bush is really committed to working with Congress, to lobby them into changing laws retroactively!
even if this were true, it wouldn't eliminate the need to investigate/try/prosecute the president for his prior criminal wiretaps...
[link to glenngreenwald.blogspot.com]
Glenn's got a great blog on this today and a stiff word of advice for the Dems too.
One thing is clear; a law was broken, and this point has been brought out by all of the previous well crafted postings. The Republicans, when this first came out, wanted to get some of the credit for being on the side of initial outrage. Spector stated publicly he had many concerns for the validity of the NSA program, but when it came time to "put up", the Republicans "shut up" and formed an solution that would grant this administration with more power, even if they have not showed good stewardship for the powers they do have. On some level, the Democrats where tricked into thinking they had close to full bipartisan support for holding the President accountable for this spying program. Right before the Democrats eyes, they saw this issue brought from a illegal action to a "spirited debate" and did nothing to counter the argument. In trying to hold up to some form of "can we all just get along," the Democrats came up short of addressing the, by now, often misdirection defense of this administration. On a planing level, we need a "Hawk" to deal specifically with spin machine of the Republican Party.
When I woke up this morning and turned on the news Bush wanted Arabs to guard the ports and Schumer wanted to hire Halliburton.