“Updating” FISA

“UPDATING” FISA….Via TalkLeft, Marty Lederman has examined Arlen Specter’s proposed legislation to make the NSA’s domestic spying program legal, and he’s not very happy. Under Specter’s bill, he says, the government would no longer have any requirement to show that the subject of a wiretap is a foreign power or an agent of a foreign power:

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of “probable cause” that the surveillance program as a whole ? not even the particular targeted surveillance ? will intercept communications of anyone who has “had communication” with a foreign power or agent of a foreign power….

Therefore, if I’m reading it correctly, if you’ve ever had any communication with a foreign government or organization, or its U.S. agents or employees ? that is to say, if there’s “probable cause” that you live and breathe here in the U.S. ? this bill would permit the President to wiretap you [for 90 days], without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda.

In other words, if you’ve ever had any contact in the past with a foreign government, a foreign-based political organization, or one of their U.S. agents, you can be wiretapped. As Lederman says, that probably includes most of the population of the United States ? and it certainly includes nearly all reporters and practically everyone with relatives outside the country. And there’s more:

The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is “consistent with” the Fourth Amendment….The FISA Court would be tasked not with determining whether any particular interception is constutitional, but somehow with making “wholesale” determinations that the program writ large is “consistent with” the Constitution. That seems untenable, at least on first glance.

And even this feeble oversight applies only to the content of electronic communications. Data mining of metadata (sender, recipient, date/time, etc.) would be completely unrestricted.

Maybe Lederman has misread the bill. Maybe it’s not finished and Specter plans to tighten it up. Maybe. But if Lederman’s analysis is even close to the truth, it’s basically statutory authority for the NSA to wiretap anyone, at any time, for any reason. Do you feel safer yet?