Back in January, the Administration wasn't shy about announcing that a FISA Court judge had authorized part of the NSA's warrantless surveillance activities. But it turns out that they spoke too soon: four or five months ago, a second FISA Court judge disagreed and refused to authorize those same activities. According to the MSNBC/Newsweek and other reports, this rejection is the reason behind the Administration's recent push for FISA "modernization."
Congress already ought to be vigorously investigating the program, but this ruling ought to raise an especially large red flag. After all, the secret court is often considered a rubberstamp for surveillance (it granted all but five of 2181 government requests last year). In what way did the Administration overstep and lead a judge on this secret court to put a foot down and say enough is enough? How long had the Administration already been breaking the law before the ruling?
Congress ought to be asking those and many other tough questions. Instead, it appears set to rewrite the law.
The Administration's latest "FISA Modernization" proposal appears intended to legalize the massive violation of Americans' rights that the NSA has been perpetrating for over five years and marginalize even the FISA court's role. There is overwhelming evidence -- including statements from fully briefed members of Congress, whistleblower evidence from a former AT&T employee, and numerous newspaper reports -- that major telecommunications carriers have provided the NSA with unchecked backdoor access to their networks and records databases. Under current law this is illegal, but the Administration's proposal could bless this sort of wholesale collection of Americans' communications. As long as the NSA's "intention" is to "target people believed to be in a foreign country," then it could be allowed to filter and scan the domestic communications of all Americans without checks or balances from the judiciary.
Senators Kit Bond and Mitch McConnell have introduced legislation that closely tracks the Administration's proposal, while key Democrats are contemplating a counterproposal. A bill could be voted on before the August recess starts next week.
The bottom line is that it would be unwise and premature for Congress to take any hasty action now. After years of the Administration blatantly violating the law and now apparently even the FISA court thinking that the spying program has gone too far, Congress shouldn't be bullied into legalizing the massive invasion of Americans' privacy and legislating in the dark.