What the White House Doesn't Like About the FISA Fix-- Oversight

JB

Marty's summary of the proposed "FISA fix" explains that both civil libertarians and the White House are unhappy with the bill the Democrats have produced through negotiations with Mike McConnell. In fact, there are several worrisome features about the bill from a civil liberties perspective. But in this post I want to point out four things that the White House clearly doesn't like.

First, the bill does not immunize telecommunications companies for violating FISA during the past six years. It does offer immunization for their participation in programs authorized under the proposed bill.

Second, section 105(B)(2)(C) of the bill requires the Attorney General to explain, to the court's satisfaction, how the AG will figure out which conversations are purely foreign-to-foreign conversations and which involve "United States persons" that FISA normally protects. The AG also has to describe how the surveillance will occur and collect information necessary for doing a later audit of what the government has done.

Subsection 105B(d) requires that the AG create guidelines to ensure that the government applies for a regular FISA warrant application when the government seeks to spy on a U.S. person. This provision could matter considerably if the AG gains knowledge-- through the procedures outlined to the court-- that one of its targets has turned out to be a U.S. person. That is, together, these two provisions would place a burden on the government to find out if they are spying on a U.S. person and if they are, to go through normal FISA procedures.

Third, section 105B(e)(3) requires audits by the Inspector General of the DOJ to make sure that the AG is playing by the rules of the game. And the results of these audits have to be submitted to Congressional committees as well as to the AG and the Director of National Intelligence. The audit has to explain which targets ended up being U.S. persons, and how many U.S. persons were surveilled using the procedures in section 105B.

Fourth, the bill comes with a built in sunset provision. It would expire in 120 days, around the beginning of the new year if it were passed this month. This would require the Bush White House to go back and ask for additional authorization. But this time-- and this is the point-- the audits would provide some evidence about how well the emergency program worked and how trustworthy the AG has been. And if the White House doesn't provide the information required in the bill, Congress might well not be too cooperative either.

In short, Congress is trying to put in place mechanisms for increased disclosure and oversight, both within the executive branch and outside it. It is demanding that the DOJ create procedures to police itself, that it audit itself regularly, and that it report the results of the audit to Congress.

You can guess that President Bush and Vice-President Cheney will not be too happy about that.
Posted 4:25 PM by JB [link]