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Department of Redundancy Department

March 16th, 2008 · 1 Comment

Anyone notice this language in the new House FISA bill?


    This Act and the amendments made by this Act shall not be construed to prohibit the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) from conducting lawful surveillance that is necessary to–
    • (1) prevent Osama Bin Laden, al Qaeda, or any other terrorist or terrorist organization from attacking the United States, any United States person, or any ally of the United States;
    • (2) ensure the safety and security of members of the United States Armed Forces or any other officer or employee of the Federal Government involved in protecting the national security of the United States; or
    • (3) protect the United States, any United States person, or any ally of the United States from threats posed by weapons of mass destruction or other threats to national security.

Now, if the prefatory language didn’t contain the word “lawful,” this would be a dangerous blank check. Since it does contain the word lawful, it appears to be a pointless tautology with no function beyond asserting, in effect, “Hey, we don’t like Osama bin Laden.” (As others have in the past suggested, it is a sure sign that a law is poorly framed when it contains someone’s proper name…) Because if the surveillance is “lawful”—with “lawful” defined by FISA, as amended—then of course FISA, as amended, cannot be construed to prohibit it. Am I missing something here, or is this provision just so much useless ornamentation?

Update: I see this was in the old RESTORE Act too; again, I assume the “empty tautology” reading is here, or the ACLU would have pitched a fit at some point.

Tags: Law · Privacy and Surveillance



1 response so far ↓

  • 1 pow wow // Mar 24, 2008 at 10:22 pm

    Seeing as no one else has yet ridden to the rescue, here’s probably more than you wanted to know about the origin of this language in RESTORE, Version 2 (and as just amended):

    The original RESTORE Act, brought to the floor of the House in October, 2007, did not contain this language. [That bill was a compilation of the House Intelligence Committee-passed and the House Judiciary Committee-passed versions of RESTORE, based on the Protect America Act language generated by the White House.]

    Rep. Holt had deferred offering some RESTORE amendments in committee (once his own superior bill was passed over by the leadership in favor of RESTORE’s White House-friendly language) and voted for the Intelligence Committee version, based upon assurances from his leadership that he would have a chance to improve the bill on the floor (or otherwise) before final passage (as Holt made clear in a difficult statement he later made pointing out that he was not given that opportunity as promised), the first time the bill was brought to the floor:

    Yes, I voted “yes” in committee to bring this to the floor, with the assurances that we would work to get it better. I regret to say that I’ve seen no effort to resolve this point.” – Rush Holt, 10/17/07, on the floor

    As Kagro X has very clearly and helpfully documented at DailyKos, a “motion to recommit” a bill gives the minority in the House a chance to offer a final bill-killing amendment to most bills brought to the floor, and the Republicans have been using that tactic to try to split the Democratic caucus on many issues, including FISA. In the case of RESTORE, indications were that language similar to that you highlight here (and some about illegal immigrants) was to be offered by Republicans in order to record Democrats ‘voting against’ fighting our national terrorist nemesis at whose feet our government now worships in the name of “national security,” because those Democrats wished to proceed to pass the FISA-amending RESTORE Act (which of course provides for surveillance of the same entity and other threats to our nation). That ‘vote against’ would come in the form of a ‘no’ vote on the Republican motion to recommit RESTORE (to committee and thus to the round file) with the amendment and language about “WMD” and that guy no one can find, etc., attached for consideration.

    So: Either because leadership knew they were going to lose too many Democrats to that obvious and cynical Republican tactic and/or because Rush Holt and his allies were prepared to stand their ground against the leadership’s effort to cut them out of the amendment process, in an effort to give them the bum’s rush, in effect, the upshot was that the leadership pulled the RESTORE bill from the floor before it came up for a vote, on the day it was debated. [I suppose it’s also possible that the leadership did it in good conscience even though they had the votes to force it through, out of respect for Holt, et al.]

    Matters percolated behind the scenes for a while until suddenly a “manager’s amendment” appeared in a new rule for a new vote on a revised RESTORE, in November, 2007:


    As Rep. Jane Harman explained it on the floor on November 15, just before the next attempt to pass a motion to recommit RESTORE, Version 2:

    Ms. HARMAN. I thank the gentleman for yielding. I think this has been an interesting debate. I have sat through every minute of it. During the debate on the rule, I spoke for this bill and for the rule; and now I speak strongly against this motion to recommit. As you have already heard, it is redundant. We have inserted language in this bill that takes care of the problem. In the manager’s amendment, language was added at the request of the Blue Dogs, and I am proud to be a co-chair of the Blue Dog Coalition, and that language specifically refers to terrorist organizations, and the Revolutionary Guards are one such organization.

    So I would like to say for two reasons there’s no need to support this motion to recommit: one, it kills the bill by using the word “promptly'”; number two, it is redundant with excellent language that we added to the bill in the manager’s amendment. As I have said before, this is not a zero sum game. We don’t get more security and less liberty or more liberty and less security. We either get more of both or less of both.


    The “excellent language” Harman cites – and which apparently was added simply to help some quavering types in the party to summon the strength to vote ‘no’ in this round – is the redundant language you noticed, plus a sentence about denying rights to “undocumented aliens.”

    The meaningful changes in the “manager’s amendment,” of course, were those included thanks to Rush Holt & Company to likewise gain their support for a revised version of RESTORE – changes which, building on an amendment that had passed in the Intelligence Committee mark-up, primarily involve enhancing and elaborating on the warrant-seeking “guidelines” the FISC would review and approve to govern the surveillance of “specific” U.S. persons for whom “a significant purpose” of (originally group-based) authorized spying becomes the collecting and analyzing of the communications of said person(s).

    The House Rules Committee URL above links to the manager’s amendment which includes both the Blue Dog verbiage, and the Holt changes, both of which carried forward to the latest version of H.R. 3773, as amended in March.

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