FISA 2

Glenn Greewald has done a careful review of "Sen. Specter’s proposed legislation to amend FISA" and he wants to make one thing perfectly clear:

this scandal arose not because the Administration has adopted some radical views specifically about its eavesdropping powers, but instead, this scandal, at its core, is based on the fact that the Administration has embraced the general theory that the President has the right to make decisions about all matters concerning national security without any limitation or "interference" from the Congress or the courts.

[...]

I believe that this legislation could actually achieve a good result for this scandal – in a sense, it calls the Administration’s bluff. From the beginning of this scandal, the Administration has claimed that it eavesdropped outside of FISA because the FISA standards are too restrictive and the FISA process too cumbersome to enable the eavesdropping it wants.

But the falsity of that excuse has been apparent from the beginning – because FISA is incredibly permissive, because the FISA court has rubber-stamped virtually every application it received, and because the Administration could have easily had Congress make any liberalizing revisions it wanted to FISA, but it never did so, opting instead to ignore the entire FISA framework when eavesdropping.

The reality that has long been apparent is that the Administration did not want – and still does not want – to have any oversight at all, or any approval requirements for its eavesdropping activities. Instead, it insists on the power to eavesdrop in secret, without anyone knowing whose communications it is intercepting and without having to justify the eavesdropping to anyone, let alone to some unelected judges.

The Administration does not care about loosening FISA standards and it never did. That’s why this Specter legislation does nothing for it. It cares only about one thing: the principle that the President is free to act without interference from Congress or courts when it comes to making decisions broadly relating to national security. Anything that undermines or negates that unchecked, unilateral power will be equally unacceptable to the White House.

[...]

It is worth remembering that Congress, as part of the Patriot Act, gave the Administration all of the FISA amendments it asked for to liberalize FISA, and the Administration -- at roughly the same time -- still went ahead and violated FISA by eavesdropping outside of its framework. That fact alone ought to demonstrate that the Administration is not and has never been interested in liberalizing FISA. The Administration is interested in solidifying its law-breaking powers and insisting on the right to act without having to adhere to the law.