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[QUOTE]Originally posted by Jay the Obscure: [QB] Things are afoot! In my ongoing effort to keep my fellow Flarites up to date on the happenings on the Domestic Surveillance front, I�m here to let you know that there are indeed developments. [QUOTE] [URL=http://www.washingtonpost.com/wp-dyn/content/article/2006/02/25/AR2006022501402.html]Specter Proposes NSA Surveillance Rules[/URL] Measure Would Make Administration Seek FISA Court's Permission to Eavesdrop By Charles Babington Washington Post Staff Writer Sunday, February 26, 2006; A11 The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago. ----[/QUOTE]What's that you say...the federal government is already obligated by law to obtain permission from a secret court, which we'll randomly name the FISA Court, to engage in the for of surveillance that they are currently engaged in? I�ll have you know that you�re are engaged in Pre-9/11 thinking when you think like that. Additionally, you�re being seditious. And you need to be aware that there are those who will want to [URL=http://www.townhall.com/opinion/columns/benshapiro/2006/02/15/186543.html]prosecute you for sedition[/URL]. Glenn Greenwald, from [URL=http://glenngreenwald.blogspot.com/2006/02/potential-benefits-of-specter.html] Unclaimed Territory[/URL] has much to say about the situation and the proposed legislation. I particularly enjoyed this bit because it's so true. [QUOTE]An analysis of Specter�s legislation must begin with the still-staggering observation that this legislation would become effective not merely by Congress enacting it (even over a veto), but instead, only by the President agreeing to be bound by the law. In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey). The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law. In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide � in secret � to violate the law. That�s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.[/QUOTE]There is of course, actuall legal analysis of the proposed legislation. [QUOTE]Highlights of Specter's proposed legislation In essence, Specter�s proposed legislation abolishes FISA�s requirement that FISA warrants be obtained for each eavesdropping target. Instead, the Administration would be free to eavesdrop without warrants as part of any warrantless eavesdropping program provided that it obtains permission for each such program from the FISA court -- permission which it must obtain every 45 days (Sec. 702(a)). For any warrantless eavesdropping program the Administration wishes to implement, the Attorney General is required to submit an affidavit to the FISA court every 45 days detailing a wide range of information about the program (sec. 703(a)(1-14)), including: (4) a statement that the surveillance sought "cannot be obtained by conventional investigative techniques" or by obtaining a FISA warrant; (6) "the means and operational procedures by which the surveillance will be executed"; (7) a "statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted" is an agent of a foreign power" or a "person who has had communication with the foreign power" and, (14(D)) "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program." Even under such warrantless eavesdropping programs, surveillance of a person without a warrant is authorized only for 90 days, after which a warrant is required (Sec. 703(a)(12)). Specter�s bill requires submission to the FISA court for approval of all warrantless eavesdropping programs -- i.e., not only the specific warrantless eavesdropping program which the New York Times disclosed, but any and all currently illegal eavesdropping programs. It thus requires FISA court approval of the program "sometimes referred to as the �Terrorist Surveillance Program� and discussed by the Attorney General before the Committee on the Judiciary . . . on January 6, 2006," and further requires "approval of any other electronic surveillance programs in existence on the date of enactment of this title that have not been submitted to the Foreign Intelligence Surveillance Court." Sec. 702(e)(2). For each program for which the Administration seeks approval, the FISA court is required to authorize the program if, in essence, it finds (Sec. 704(a)(2-3)) that the eavesdropping program is consistent with constitutional guarantees (i.e., the Fourth Amendment) and that: [T]here is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application. But critically, beyond this provision, the legislation vests substantial discretion in the FISA court to determine "whether the implementation of the electronic surveillance program supports approval of the application . . . " (Sec. 704(b)). In other words, the FISA court is required to compare the information obtained by the program to be approved for three prior 45-day periods to determine that it has been implemented in accordance with the proposal submitted to the FISA court by the Administration. The FISA court may approve of the program only if it finds that the "benefits of the electronic surveillance program" justifies its authorization, and that it is being implemented consistently with the proposal previously submitted to the FISA court by the Administration. If it does not so conclude, it can (and must) reject the application. That is rather substantial and broad discretion to vest in the FISA court. There is also a provision in the legislation for Congressional oversight. Section 705 requires submission of a detailed report to the Chairs and ranking members of the Senate and House Intelligence Committees every 45 days. The report must include a description of the information obtained by the program and the means and procedures by which the information was obtained. A few other notes about the legislation: (a) it allows warrantless eavesdropping programs not only for international calls from or to the U.S., but purely domestic communications as well; (b) it expressly excludes from the approval requirement pure data mining activities or the obtaining of information reflecting the details of one�s communications short of the content of the communications -- i.e., the requirements "do not apply to information identifying the sender, origin or recipient of the electronic communications . . . that is obtained without review of the substance of the electronic communication." Sec. 702(d)(2); and, (c) this legislation is clearly intended to supplant, not supplement, Specter�s prior announced intention to require submission to the FISA court of the question of the program�s legality.[/QUOTE] [/QB][/QUOTE]
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