While a draft of the GOP proposed legislation sponsored by DeWine, Snowe, Graham and Hagel is not yet publicly available, some reporters have written about the substantive provisions after receiving a copy of the draft legislation. Not only does this legislation codify the existing illegal NSA program, but it creates new crimes to prevent the press from reporting on any FISA surveillance programs and Bush is the person who writes a list of the terrorists to be subjected to surveillance.
Some of the provisions of this new legislation include:
(1) The law will make it a crime for reporters and newspapers to publish stories that Bush violated the law or to simply report on the existence of the various FISA surveillance programs to the public. This handy provision protects Bush from any future leaks that he is violating the law governing surveillance of Americans. Criminal penalties would be applied to anyone who “intentionally discloses information identifying or describing” Bush’s NSA program or any other surveillance of Americans under FISA. In addition, the scope of activities covered by criminal penalties is expanded by not including a requirement that the “information has to be harmful to national security or classified.” Increased penalties of $1 million fines and/or 15 years in jail should be plenty deterrence for the media to not report on such surveillance in the future.
(2) The legislation codifies the primary components of Bush’s existing illegal NSA surveillance of Americans. In other words, Bush may continue the surveillance program which violated American’s rights, but now he may continue with the cover that Congress is making the program legal. The problem with Bush’s NSA program was not just that it was illegal because it violated wiretapping laws and Congressional oversight laws, but also because it violated and lowered American civil right standards by permitting political appointees to make decisions that our system has wisely reserved to judges. These problems remain:
–Under the Bush NSA plan, the White House briefed 8 lawmakers; under the proposed legislation, Bush will brief 7 lawmakers.
–Under both the Bush NSA plan and the proposed legislation, Bush does not need to obtain a warrant unless he feels like it.
–Under both the Bush NSA plan and the proposed legislation, the Attorney General is required to certify the surveillance in 45 days.
–Under the Bush NSA plan, warrant requirements are supervised by NSA agents and shift supervisors and the proposed legislation provides that oversight to lawmakers, or at least to 4 GOP Senators who conclude continued surveillance is warranted.
In addition, the current 72-hour grace period during which the government may wiretap before obtaining a FISA warrant would be expanded to 45 days. “After 45 days, the law would require the Attorney General to take one of three steps: end the wiretap, get a warrant from the secret FISA court, or inform the new oversight panels about the wiretap.”
And, the White House will brief the 7-member panel but members are prohibited from disclosing information.
Curious that the White House commenced immediately the provision to brief the 7-member panel even before this legislation is passed. Given that this bill was “negotiated” or should we say drafted by the White House, commencing implementation of the bill before it is a law may be the White House way to assure that it is passed.
(3) The Congressional plan expands the scope of people subject to surveillance to include Americans who are “working in support of a terrorist group or organization.” “Given Bush’s record of stretching words to his advantage – and his claim that anyone who isn’t `with us’ is with the terrorists – the vague concept of `working in support’ could open almost any political critic of the Bush administration to surveillance.”
This clause is particularly troublesome given that political, civil rights, environmental and other advocacy groups were deemed domestic terrorists sufficient for the Pentagon, National Guard and Army, police and FBI/Homeland Security to conduct surveillance. And, even bloggers have been painted with the potential terrorist label in US war games.
A rather curious provision in the legislation “allows the surveillance of terrorist groups on a list written by the president.” Why is Bush determining who is a terrorist? And, if this law is supposed to keep Americans safe in this “war on terror,” what about the “lone wolf” planning an attack that is not associated with a known terror group?
(4) No effective judicial review if American wrongly swept up into Bush’s surveillance programs. Court can not protect civil and constitutional rights. In a case challenging Bush`s illegal NSA spying, the judge issued a secret ruling that even barred defense counsel, who has a federal security clearance, from reading the substance of the ruling.
(5) This new law will retroactively validate Bush’s illegal NSA spying from 2002 until now, thereby precluding impeaching Bush for violating the law. Congressional ratification, which may occur expressly or by enacting a law that has the effect of approving previously unauthorized acts by Bush, such as this NSA law, has the legal effect of retroactively giving the “force of law to official action unauthorized when taken.” In other words, Bush’s warrantless spying on Americans is now deemed under the law as illegal acts, but after this new legislation is enacted, those same illegal acts will now be authorized.
As former Supreme Court Justice O’Connor said “it takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.”
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