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The Times Spies Phony Dangers in FISA Legislation

The Times ventures where even the ACLU fears to tread: "Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include - without court approval - certain types of physical searches on American soil and the collection of Americans' business records, Democratic Congressional officials and other experts said.

Sunday's lead story focused on the alleged dangers hidden in theupdated version of the Foreign Intelligence Surveillance Act recently passed by Congress and signed into law by Bush."Concerns Raised On Wider Spying Under New Law" emanated from James Risen and Eric Lichtblau, the same pair of reporters who put the terror-surveillance debateon public display back in December 2005 with a scoop that revealed the details of the classified National Security Agency program, which detailed methods of surveillance of international communications of terrorism suspects.



"Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include - without court approval - certain types of physical searches on American soil and the collection of Americans' business records, Democratic Congressional officials and other experts said."



Andrew McCarthy of the Foundation for Defense and Democracies responded at National Review Online:



"The Times is engaged here in the worst kind of journalistic abuse. Risen and Lichtblau sprinkle their story with the names of several experts, but not a single one is identified as standing behind the explosive claims quoted above. Those are attributed to 'experts' - unnamed. And unnamed for good reason: What the Times represents as a respectable, mainstream interpretation of the new law is actually a fringe construction unsupportable by any coherent reading."


Back to Risen and Lichtblau:


"Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.


"They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.


"The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought.'


McCarthy noted:


"Nor, moreover, does it seem plausible that, as the Times report suggests, Democrats voted for the reform bill without grasping what was in it. This was no omnibus, multi-volume budget extravaganza. We're talkin' 14 double-spaced pages - straightforward, easily read, and reread in nothing flat, bereft of crevices for hiding explosive provisions."


Risen and Lichtblau again emphasize the "complex" legislation that evidently befuddled the poor Democrats.


"It also offers a case study in how changing a few words in a complex piece of legislation has the potential to fundamentally alter the Foreign Intelligence Surveillance Act, a landmark national security law. The new legislation is set to expire in less than six months; two weeks after it was signed into law, there is still heated debate over how much power Congress gave to the president.


"'This may give the administration even more authority than people thought,' said David Kris, a former senior Justice Department lawyer in the Bush and Clinton administrations and a co-author of 'National Security Investigation and Prosecutions,' a new book on surveillance law.


"Several legal experts said that by redefining the meaning of 'electronic surveillance,' the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.


"These new powers include the collection of business records, physical searches and so-called 'trap and trace' operations, analyzing specific calling patterns.


"For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.


"It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month's Congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans."


But asMcCarthy sharply pointed out, the "experts" that agree with Risen and Lichtblau's strange interpretation are never actually identified.


The Times continued:


"Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions. Whether intentional or not, the end result - according to top Democratic aides and other experts on national security law - is that the legislation may grant the government the right to collect a range of information on American citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas.


[...]


"The measure, which President Bush signed into law on Aug. 5, was written and pushed through both the House and Senate so quickly that few in Congress had time to absorb its full impact, some Congressional aides say.


"Though many Democratic leaders opposed the final version of the legislation, they did not work forcefully to block its passage, largely out of fear that they would be criticized by President Bush and Republican leaders during the August recess as being soft on terrorism."