I’m a little slow on this, but I’ve finally had a chance to read through Rush Holt’s alternative to the House leadership’s (now shelved) FISA bill, and it’s a real breath of fresh air. It increases executive power in two relatively modest ways: by allowing domestic interception of foreign-to-foreign communications without a warrant and extending the deadline for getting after-the-fact “emergency” warrants from 3 to 7 days. The rest of the legislation is focused where this debate should have been focused from the outset: on ensuring that the executive and judicial branch actually have the resources required to do their job without sacrificing anyone’s civil liberties. It increases the number of judges on the FISA court, authorizes the DNI and the attorney general to hire more lawyers to fill out warrant requests, and requires that the FISA court decide on warrant requests within 24 hours.
Notably, unlike the House Democrats’ RESTORE Act, the Holt bill does not require the executive branch to file a blizzard of quarterly reports on all aspects of its surveillance activities. (It does require the president to immediately disclose to Congress what programs are already being undertaken) It doesn’t require them because they aren’t needed: individualized warrant applications are a much more reliable check on executive branch abuses. The RESTORE Act, in contrast, gave the executive branch much broader discretion to engage in warrantless wiretaps when one end of a call was overseas, and the reporting process was essentially a stopgap to paper over that deficiency.
In a sane world, the Holt bill would be the reasonable compromise between a White House that wanted more authority and liberal Democrats who are wary of a White House with a dismal civil liberties record. Instead, we live in a bizarro world in which the Democrats’ initial offer is significantly more permissive, and the White House is complaining that even that doesn’t give them nearly enough power.
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