Why revise FISA? Some points to consider...

Brian J. Foley [Florida Coastal School of Law]: "Why should Congress revise FISA to give the executive more power to spy? The main argument that AG Gonzales seemed to raise at the February 6 hearing was that it is too difficult/onerous/slow to get a warrant under FISA, even with FISA's giving the executive up to 72 hours after the tap has been implemented to apply for a warrant. He appears to want no burden whatsoever.

Regarding revising FISA, there are two issues that should be kept separate: Is Congress upset at the surveillance, or is Congress upset because the president did not come ask them first for authorization to conduct it? If Congress is considering legislation merely to give more spy power to the executive, to make legal what is illegal (or, quite apparently illegal), I'd rather Congress not legislate at all. Let the lawsuits and possible criminal prosecutions proceed in the courts.

Another issue is whether the putative need for this surveillance outweighs the serious risks it poses, as I described in a recent JURIST commentary. It's highly likely that the executive branch will abuse these powers.

It's not even clear that there is a need for such surveillance. As I wrote in an earlier post here, the 9/11 attacks could have been thwarted with the information the Administration already had. Why give the Administration more power rather than holding it accountable for negligence or worse?

Another issue is whether our government is overstating the threat of terrorism. There's been no attack in almost four and one half years. Not even a bus bomb, not even a car being rammed into a crowded crosswalk. Other countries have more attacks, more regularly, but people there seem less frightened. Also, I don't remember any government until ours talking regularly about fears of nuclear terrorist attacks, though it seems to me that it would have been easier for the IRA or ETA to get hold of a Soviet or Chinese nuke in the 1970s or 1980s or 1990s (especially a loose former Soviet nuke in the 90s) than it would be for Al Qaeda to get hold of a nuclear bomb from, say, Iran, which doesn't even have a nuclear bomb.

Last, the American people need to discuss how far we are willing to go for 'security.' Sure, letting the government read all our emails and listen to all our phone calls MIGHT thwart an attack. But so might putting an FBI agent in everybody's household. So might installing two-way televisions a la Orwell's 1984. Just because a measure might work, however, doesn't mean that we should accept it. It seems to me that much of the public discourse on the NSA spying (and torture and the treatment of prisoners at Guantanamo, for that matter) lacks this perspective."

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