August 19, 2007

The Clueless Congress

This session of Congress has already made a name for itself as one of the least-accomplished in recent history. Now, even when it does accomplish something significant, it manages to botch it badly. The new FISA legislation winds up granting the executive branch powers it never requested, thanks to poorly-managed edits to the original language of the bill by Congress:

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. ...

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.

“We did not cover ourselves in glory,” said one Democratic aide, referring to how the bill was compiled.

Congress writes bad legislation on a frequent basis. Normally, they rely on the courts to cover their rear ends. Now, however, with the courts leaning more towards judicial restraint rather than judicial activism, Congress' errors will get more exposure. In fact, the entire reason that the FISA regulations had to be rewritten came from a FISA court ruling that held to the strict letter of the law regarding traffic routed through American switches that was clearly foreign communications, an artifact of an odd Congressional definition of domestic communications.

Congress can hardly blame the administration for this error. The White House and the intel community had been begging Congressional leadership to take up the FISA problem for months. Nancy Pelosi and Harry Reid didn't want to bother with it until they pressed for action on their domestic-policy agenda, despite increasingly urgent warnings that vital intel was being missed.

Only after three months did the White House go public with those warnings, forcing the Democrats to take up FISA legislation in a hurry. They had won an election in part based on their hysterics over the terrorist-surveillance program at the NSA, but then wound up passing a bill that essentially endorsed it. Not only did they do that, but they ironically gave the Bush administration powers it didn't request, out of sheer ignorance about what the bill contained.

Now they want to go back and fix the bill. Undoubtedly, they will use this as an excuse to strip out some of what the Administration wanted from FISA, as a way to calm their base's outrage over their surrender on the TSP. However, they have a big problem: the President can veto their changes, as the previous bill has already been signed into law. The White House may press for an end to the six-moth sunset rule as a trade for what the Democrats have to change to save some face, and will certainly reject any change that bases a definition of domestic communications on hardware location.

Searches on American soil should require warrants. Congress should tighten the language to ensure that protection gets restored. Democratic leadership should then quit playing games with national security and start taking their responsibilities more seriously.


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Comments (22)

Posted by olddeadmeat | August 19, 2007 8:50 AM

That loud smack you heard was palms smacking the foreheads of civil rights activists and libertarians everywhere.

In the immortal words of Homer J. Simpson:

Posted by docjim505 | August 19, 2007 8:54 AM

Oh, let's not forget the dems' ability to make chicken salad out of chicken s***. After all, the Congress "rushed" the Patriot Act through... and then used it as a club to beat on George Bush. They'll do the same with this cowpat of a law.

Posted by Charles | August 19, 2007 9:01 AM

How odd. CE thinks that the Democrats in Congress wrote the bill that was passed. What actually happened was that the bill the Democrats had written was tossed due to the threat of a veto, after lengthy negotiations. They then fell back on another bill, which was the administration's, and passed that, in order to avoid blame for "leaving the nation unprotected while they went on recess."

Now you want to hold the Democrats liable for the bill? Unbelievable.

Posted by Captain Ed | August 19, 2007 9:13 AM

The administration cannot force a bill to the floor. In fact, the administration cannot write legislation. Democrats control the agenda in both chambers -- they don't have to bring any bill to the floor that they don't want coming to a vote.

They dithered for months and got stuck in the end having to push forward a bill that they clearly had not read. "The administration made me do it!" is a lame, lame excuse. Who runs Congress, anyway?

Posted by paul a'barge | August 19, 2007 9:28 AM 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....

What's wrong with this?

You folks want to mau mau terrorists and criminals or not?

Who's side are you on?

Posted by red | August 19, 2007 9:28 AM

edward said.....passed that, in order to avoid blame for "leaving the nation unprotected while they went on recess."

Now you want to hold the Democrats liable for the bill? Unbelievable.

Didn't the Democrats win Congress last November? Their governance and their vote are ripe for criticism. This wasn't a bill naming a post office. The controversy about the Terrorist Surveillance Program (known by lefties as the domestiic wiretap program) was powerful and went on for weeks. After all that the Democrats don't read the bill?

After writing my Senators praising them for finding a way to protect the nation via proper surveillance of international communication, now I have to write again and reprove them for making it to easy to spy on Americans.

Only a real apologist or a school-trained propagandist would try to defend them on this one.

Posted by red | August 19, 2007 9:45 AM

paul said ----What's wrong with this? records of an American in Chicago without a warrant...

This international communications surveillance vs. 4th Ammendment arguement was always too complicated for lefties to comprehend. Too bad it is apparently too complicated for their political leadership as well

Posted by Charles | August 19, 2007 10:05 AM


Anyone who has been paying attention knows that the GOP has enough votes in the Senate to block most legislation, and that they have used this many times this year.

Isn't it a bit hypocritical to complain about the length of time it took them to craft their bill and also then to complain about the quality of the bill they passed in haste under pressure from the administration?

What's becoming increasingly clear is that nobody runs Congress, thanks to stonewalling by the GOP. The GOP's strategy of blocking anything substantive that isn't a surrender by the Democrats may be clever politics, but who will claim this is good for the US?

Posted by sommervr | August 19, 2007 10:17 AM

Dems getting blamed for giving Bush exactly what he wants.
When did this site go from commentary to full time shill?

Posted by Subsunk | August 19, 2007 10:29 AM

Searches on American soil should require warrants

Bull! Searches solely for the purposes of domestic prosecution of American citizens or foreign nationals legally here on American soil should require warrants. Searches of purely foreign owned or operated or utilized communications, records, documents, systems, or other intelligence collection methods involved in warfare against an enemy, even if they are on US soil, as this TSP stuff was, should NEVER require a warrant.

Warfighting doesn't have sh*t to do with prosecution of a crime in court. It is about warfare, pure and simple. It has to do with killing of an enemy or thwarting his attacks before they can take place. And you are wrong about intelligence collection methods and requirements for warfighting. Quit trying to advocate limiting any intelligence collection method we need to win, no matter how trivial.

As for Charles' suggestions re: who has the ability to obstruct legislation as a minority in Congress, Dhimmicrats have a lot of nerve cheering the obstruction of their minority in Congress before 2006 and now slamming Republicans for obstruction because they are too stupid to actually submit legislation which protects US citizens instead of illegal aliens at US citizens expense.

Dhimmicrat legislation is defeated because it doesn't protect America, not because Republicans obstruct their stupid plans for power seizure or misplaced concerns for folks other than good US citizens.


Posted by eaglewings | August 19, 2007 10:29 AM

I don't see anything wrong with the legislation. If there is something constitutionally wrong with the bill I'm sure the ACLU and its dem allies will be the first to march into Court. I didn't think Charles would be defending the ACLU and its dem allies, but who knows, strange times indeed?

Posted by filistro | August 19, 2007 11:08 AM

What does it matter what Congress does? When you've allowed your country to have an imperial presidency, you just shut up and do what you're told. Laws are for little people.

...Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, "is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president's Article II powers trump any ability by Congress to regulate the collection of foreign intelligence."

Posted by Scrapiron | August 19, 2007 11:21 AM

If you are for allowing the congress total power in the protection of this country then you had better get ready for millions of''dead' people in the streets. Democrats have proven themselves at the least inept and at the worst (proven by dozens of democrat congressional members) totally anti-american, and willing to provide aid and comfort to the enemies of the country. It started with the traitors (today's democrat leaders) during the Vietnam war and continues today. Calling a democrat in congress anything other than a power hungry, money grugging weasel is a stretch.

Posted by MaryT | August 19, 2007 12:06 PM

Quick, answer this question, Who was the last President of the USA to use Article 11.
It was Clinton, used to search, without a warrant, the HOME of a high official, in the intelligence community. Was it CIA or FBI.

Posted by docjim505 | August 19, 2007 12:54 PM

RE: Charles' August 19, 2007 9:01 AM and August 19, 2007 10:05 AM

"WAAAAAAHHHHH!!!! That mean ol' Bush and [sniff] the mean ol' Republicans [snivel] in the Congress made us do it!!!! WAAAAAHHHH!!! We w-w-w-wanted to write [sniff] good law, b-b-b-but THEY WOULDN'T LET US!!!! WAAAAAHHHH!!! We're not responsible for anything!!! WAAAAAAHHHHH!!!! We just [sniff] want to h-h-h-have photos of Nancy Pelosi holding the gavel!!! We don't actually want to d-d-d-do anything!!!!! WAAAAAHHHH!!!!!"

This is nauseating. The dems promised so much (crap) when they got elected. They and their partisans were gonna do great things! Yessir! They were gonna take back the country from a runaway president and his nasty ol' neocon cabal! They were gonna stop Chimpy McBushitler's relentless assault on the Constitution!

What have we gotten from them?

Hours of "oversight" hearings that haven't found anything other than that the Attorney General is a moron. They've renamed some post offices. They managed to hold up funding for the troops for a few weeks. And now they've written law that goes beyond what the president wanted. They've apparently done more damage to civil liberties than George Bush ever THOUGH about doing.

But it's all his fault.

Good grief! Are democrats congenitally incapable of logic? Are they incapable of accepting responsibility and acting like adults??? Or are they and their supporters really so brain dead that "It's All Bush's Fault!"(TM) is an acceptable answer to any question?

Posted by Drew | August 19, 2007 1:28 PM

Perhaps if Congress could resist its' inate desire to do grand things, and just do small, specific, tightly written legislation, they would not back themselves into these corners.

The TSP revisions to FISA were a small, specific problem to be addressed. That Congress could not do what needed to be done without going into areas that did not need to be addressed, is the problem with Congress; and, further, validates Mr. Madison's wording of Art II.

Congress is absolutely incapable of administering anything. Just look at the constant mess Capitol Hill is in. As corrupt as the home-rule in DC is, how bad would it be if all DC power were still invested in the relevant committees in Congress?

Posted by Kris | August 19, 2007 1:42 PM

I must respectively disagree with the captain and sadly must say it is the captain who is clueless, not Congress-at least according to Kit Bond who wrote the bill. In his appearance on LE w/Wolf today he said the NY Times article was pure crap and he had the actual bill with him to prove it. He asked the Times to let him write a rebuttal but they refused.

Why anybody would take the word of the NY Times is beyond me.

Posted by kingronjo | August 19, 2007 3:34 PM

Democrats ran on the sloagn, "Had Enough, vote Democratic."

I think its more than time enough to make our own slogan, "Seen Enough? Vote Republican

Posted by Lightwave | August 19, 2007 6:10 PM

It's downright disturbing to see the rabid moonbats screaming about how incompetent the Republicans have supposedly been in the last six years. I wonder if any of them would say truthfully that the Democrats of this Congress are any better.

Any who say "they are" of course aren't being truthful. At every turn the Democrats are outsmarted, out-maneuvered, outlasted, out-gunned and outraged by the GOP. The voters know the Dems can't and won't win this war. And in 2008 the GOP gets the last laugh.

Posted by Gregory | August 20, 2007 2:07 AM

The only thing "imperial" in America are rusting chryslers. I've given up telling my lib friends the president doesn't make law, the congress does. So now when they whine about Bush taking over the Country I kackle with a sinister grin and suggest they refer to His Excellency with a little more respect lest he take away the rest of their rights. What fun!

Posted by TokyoTom | August 20, 2007 8:12 AM

Ed, the Congress SHOULD do better, and it's nice to see you paying attention to the erosion of our liberties, but it's more than a bit rich that you want to pretend that the Republicans are the real protectors of our Constitutional liberties. Bruce Fein, Bartlett and one or tow others are the only ones on the Rep side who have been paying attention.

Ans isn't it going to be grand when we turn over this new edifice for an imperial presidency over to a Dem, with possible Dem Congress as well? I can't wait!

Posted by LarryD | August 20, 2007 1:50 PM

filistro, the President is given certain powers by the Constitution. Congress cannot take them away, no matter what it says in legislation it passes. The Constitution is the supreme law of the land.

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