The administration and Republicans on Capitol Hill are launching a new onslaught against our civil rights, attempting to leverage Chertoff's "gut feeling" into a vague and as yet undefined "new threat" that may or may not occur this summer, all in attempt to get a bill passed this week making significant and unwarranted changes to FISA. Another likely motivation is to try to take some of the heat off of Gonzales and distract the House Judiciary Committee from considering beginning an investigation into his impeachment.
The changes include allowing warrantless wiretapping of Americans on American soil, so long as someone on the other end is a target in a foreign country. Director of National Intelligence Mike McConnell misleadingly states that the problem is that they need "to obtain court orders to collect foreign intelligence about foreign targets located overseas" and that's too cumbersome. Well, they can surely already do that under the law -- that is, unless the target is talking to someone in the U.S. and the wiretap is in the U.S.
According to the national security experts at the ACLU, what they are really looking for is getting at Americans' conversations without a warrant. The White House wants to be able to intercept any conversations -- both e-mails and phone calls -- between a foreign target and any U.S. person so long as their "primary purpose" is not obtaining the U.S. person's conversations. If their purpose is significantly, or substantially to obtain those U.S. persons' calls, the NSA would be able to intercept and retain those calls with impunity.
The administration is also pushing for a provision that would give immunity - from criminal prosecution as well as civil liability - for the telecom companies' participation in any future warrantless wiretapping program. That provision isn't included in the legislation they are trying to ram through this week, but McConnell has stated his intention to bring it back up in September.
Thus far, the Democrats in Congress are for some reason playing along. They may not take the entire White House proposal, but they seem to have accepted the argument something has to be done immediately and that they have to rush legislation through before the August recess. How much of the 4th Amendment will they give away in order to avoid being tagged with being soft on terror?
These changes, which Republicans are trying to sell as "technical fixes" go far beyond what might be necessary to update FISA. Those fixes are addressed by two pieces of legislation--the Schiff/Flake NSA Oversight Act (H.R.11), which would modernize the Foreign Intelligence Surveillance Act (FISA) to respond to changes in technology and new threats, but would retain court supervision over domestic electronic surveillance. In the Senate, Feinstein and Specter have proposed legislation that would streamline the legal process for obtaining warrants. These are truly technical fixes that are reasonable responses to the need to help our intelligence services become more nimble, without sacrificing the 4th Amendment.
The GOP proposed legislation is absolutely unnecessary and absolutely should not be rushed through just on the word of this administration. Given the current stonewalling from Gonzales and the administration regarding warrantless wiretapping, they have no credibility on this issue. Particularly when all they've got for evidence is Michael Chertoff's gut.