Which are worse, the provisions included in the new FISA Amendments Act or the ones that aren't there but should be?
The text of the House bill does not even mention the Intelligence Oversight Board. The IOB was created in 1976 in the same wave of reform that gave us the original FISA law. It's purpose was to act as a check upon illegal intelligence activities.
Sec. 2.2. The Iob shall:
(a) prepare for the President reports of intelligence activities that the Iob believes may be unlawful or contrary to Executive order or Presidential directive;
(b) forward to the Attorney General reports received concerning intelligence activities that the Iob believes may be unlawful or contrary to Executive order or Presidential directive;
(c) review the internal guidelines of each agency within the Intelligence Community that concern the lawfulness of intelligence activities;
(d) review the practices and procedures of the Inspectors General and General Counsel of the Intelligence Community for discovering and reporting intelligence activities that may be unlawful or contrary to Executive order or Presidential directive; and
(e) conduct such investigations as the Iob deems necessary to carry out its functions under this order.
You'd think, then, that there would be a considerable role for the IOB in any legislation that gave the president sweeping new powers of surveillance in exchange for promises of further oversight to prevent abuse. At an absolute minimum, you'd think the reports to be conducted by Inspectors General would be forwarded to IOB. Instead, the IOB is notable by its absence.
There is a wrinkle, however, as there usually is with things having to do with the Bush administration. On April 30th Bush gutted the IOB by means of a new executive order that very pointedly omitted mention of the board's traditional duty to report illegal intelligence activities to the Attorney General. I'm quite convinced that the new executive order hollows out the whistleblowing power of the IOB, and evidently Charlie Savage agreed with that interpretation. The White House, however, wishes to pretend that Bush did not gut the IOB; their argument is that his new EO does not specifically prohibit the IOB from reporting illegal activities to the AG.
So in drafting the FISA bill, members of Congress had two ways of looking at the newly revamped IOB. They could adopt my point of view, that IOB has been neutralized, in which case they'd pretty much have to accept that the President is determined to do anything necessary to prevent effective, independent oversight of his surveillance programs. That would include circumventing even long established oversight mechanisms.
Or members of Congress could accept the WH assertion that it did not undermine the IOB's role as the primary whistleblower on illegal intelligence activities. But if they choose to believe the latter, why exclude any role for the IOB in the FISA bill? I think the omission would have to imply that Congress really does not care to have a theorectically independent board like IOB blowing the whistle.
So which is it, Congress?