Democrats Relinquish Spine

Can someone remind me what the point of having an opposition party was supposed to be? I’m pretty sure this wasn’t it:

House Democrats plan to introduce a bill this week that would let a secret court issue one-year “umbrella” warrants to allow the government to intercept e-mails and phone calls of foreign targets and would not require that surveillance of each person be approved individually…

“Some conservatives want no judicial oversight, and some liberals oppose any notion of a blanket order,” said James X. Dempsey, Center for Democracy and Technology policy director. “So the challenge of the Democratic leadership is to strike a balance, one that gives the National Security Agency the flexibility to select its targets overseas but that keeps the court involved to protect the private communications of innocent Americans.”

The bill would require the Justice Department inspector general to audit the use of the umbrella warrant and issue quarterly reports to a special FISA court and to Congress, according to congressional aides involved in drafting the legislation. It would clarify that no court order is required for intercepting communications between people overseas that are routed through the United States. It would specify that the collections of e-mails and phone calls could come only from communications service providers — as opposed to hospitals, libraries or advocacy groups. And it would require a court order when the government is seeking communications of a person inside the United States, but only if that person is the target.

Now, let’s be clear about this: “target” here is a political concept. If the new proposal is anything like the Protect America Act, the “target” of a given surveillance operation is likely to be loosely defined and largely at the discretion of the agency doing the surveillance. The PAA, for example, requires only that an eavesdropping program “concern” someone located overseas. So if you have a relative who lives outside the United States, they could declare the overseas person to be the “target” of the surveillance and then tap all of your phones in case you talk to (or about) your overseas relative.

Is that an unreasonable interpretation of the law? Probably, but given that the legislation “would not require that surveillance of each person be approved individually,” there would be no one to object if they did start using such an expansive interpretation. This isn’t just speculation. It’s precisely what happened with the Patriot Act’s National Security Letters provisions. Freed of the burdens of getting individualized warrants, the FBI wasted no time in flouting the law. There was no judge reviewing the applications, so the agents could cut corners and get their NSLs approved anyway.

To put it bluntly, legislation that does away with individualized warrant requirements is a betrayal of the constitution and a capitulation to the president. All the audits and quarterly reports aren’t a substitute for a judge conducting individual reviews of every domestic surveillance target.

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