At the behest of the Bush Administration, Congress is debating a number of updates to the Foreign Intelligence Surveillance Act. This long-standing law, passed in response to widespread abuses of executive power during the Nixon era, protects American citizens from being spied upon by the government. FISA strikes a balance between ensuring Americans’ rights to security in their communications and keeping our country safe from foreign threats.

One of the key characteristics of FISA is that it allows the government to engage in surveillance of suspected foreign threats, such as terrorists BEFORE seeking a court order.

The FISA court, the judicial body created to review government requests for permission to wiretap suspected threats, routinely granted such requests. The President would have us believe that this permissive system is not enough and that sweeping NEW powers should be granted to the Executive Branch to engage in spying upon American citizens.

This should be troubling to all Americans. Indications are that the government has already engaged in such activities, in violation of existing law. The Administration’s request would provide retroactive cover for these illegal acts. Furthermore, the President is demanding that Congress grant immunity to the telecommunications companies who handed over untold amounts of information about domestic communications at the government’s request. The Administration would have you believe that such immunity is warranted because these companies were simply doing their “patriotic duty.” Nevertheless, these same businesses cut off FBI wiretaps of suspected terrorist targets when the government failed to pay its bills on time.

What is most troubling of all is that the Senate has already passed a bill that gives the Administration everything it wants. Any chance to stop this assault on our civil liberties now lies in the House.In order that concerned citizens may better understand the proposed changes to FISA, the MU chapter of the American Constitution Society will host a panel discussion on the topic this Thursday, February 21 March 13, 2008 from 5:00 to 6:00 pm in Hulston Hall, Room 6.

The panel will consist of Christina Wells, Professor of Law at MU, whose studies have focused on free speech and government access; Charles Davis, Professor of Journalism at MU and the executive director for the National Freedom of Information Coalition; local attorney and civil rights advocate Dan Viets; and John Coffman, who lobbies for the American Civil Liberties Union in Jefferson City.

[Ed. Note : This event has been rescheduled for March 13th due to severe weather. Professor Davis has also been added to the panel]

The Professors over at Balkinization surmise that “for political reasons, the President is going to shy away from playing this [executive privilige] card unless he has to– but that won’t stop others from promoting the idea vigorously.”

Then again, in the summer of 2002, plenty of folks thought, for political reasons, the President wasn’t really going to play the card of pre-emptive war against Iraq unless he had to, though others promoted the idea vigorously.

“In some instances, Presidents Reagan and Clinton may have been pleased with the work of the U.S. attorneys, who, after all, they had appointed,” Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, speculated in a 2006 memo outlining Bush’s alternative approach. “In other instances, Presidents Reagan and Clinton may simply have been unwilling to commit the resources necessary to remove the U.S. attorneys.”

This is precisely why the Administration had the provision inserted into the Patriot Act which negated the necessity of Senate confirmation for US attorneys.

When, for example, Donald Rumsfeld tendered his resignation as Secretary of Defense, there were Senate confirmation hearings for replacement Robert Gates. Not only did these hearings allow the Senate to assess the merits of the new appointment, it also allowed for the Senate to engage in oversight over the Defense Department. The Senate raised issues of Defense Department operations under Rumsfeld’s tenure and questioned Gates as to his plans and priorities for the Defense Department going forward.

Moreover, the confirmation process acts as the only practical protection against the President’s use of US Attorneys for primarily political ends. When Sampson writes that Reagan and Clinton “may simply have been unwilling to commit the resources necessary to remove the U.S. attorneys,” Sampson is precisely correct. The precious resources of political capital lost during confirmation hearing for replacements would outweigh the benefit of attempting to fire independently-minded attorneys and attempting to replace them with political sycophants. Confirmation hearings would bring front-and-center the reasons for both the firings, and then close scrutinization of the replacement attorneys. These are necessary and fundamental oversight powers of the Congress.

The new Patriot Act provision allowed for an end-run around this process. Simply put, the Administration sought to insulate itself from the “resource costs” of purely political and cronyistic use of officers of the federal courts.

Meanwhile, Josh Marshall “gets down to the real nub” of the “Purge”: fired US Attorney Carol Lamb‘s corruption investigation was leading her toward the Executive Branch.

“I don’t think there’s any way I could get fair treatment by Sen. Pryor or others on the Judiciary Committee,” Griffin told the Arkansas Democrat-Gazette, which first reported Griffin’s decision. He added that submitting his name to the Senate for confirmation “would be like volunteering to stand in front of a firing squad in the middle of a three-ring circus.”

But Griffin isn’t required to seek confirmation. The new Patriot Act provision at issue precludes its necessity.

Griffin could still legally serve as the Little Rock U.S. attorney indefinitely, and he said he will remain in the job for “as long as they need me.”

And the new provision remains on the books.

Senate Republicans yesterday blocked a bill approved by the judiciary committee that would limit Gonzales’s powers to name a replacement prosecutor and return to a system in which district courts name a replacement if a permanent U.S. attorney is not selected in 120 days.

How long is “as long as they need me?”

Blood on the Courthouse Floor:

In December, the U.S. Attorney General announced the appointment of Timothy Griffin as U.S. Attorney for Arkansas. Previous to accepting the job, Griffin, 38, had served as research director for the Republican National Committee. Authority for making this Griffin appointment came from a provision which was apparently inserted into the Patriot Act only last year at the request of the Justice Department. The language, a last minute addition to the conference report, had not been contained in either House or Senate bills.

The U.S. Attorney General previously had the authority to make temporary appointments to fill vacancies, but if the Senate did not confirm a presidential nominee within 120 days, a replacement would be picked by the federal district court.

Earlier this week, Arkansas attorney and case book author John Wesley Hall filed a motion on behalf of a capital-offense-client challenging the constitutionality of Timothy Griffin’s appointment as U.S. Attorney.

Hall is anything but a novice when it comes to understanding and arguing about the criminal law’s intersection with the Constitution. He successfully argued before the U.S. Supreme Court in Wilson v. Arkansas that a requirement that police “knock and announce” is part of the 4th Amendment right against unreasonable search and seizure.

Hall’s motion argues, among two other related approaches involving statutory construction, that the new Patriot Act provision violates Art. II Sec. 2 & 3 of the Constitution. Here’s a bit of Art II Sec. 2:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

For this particular constitutional claim, the decision seems to come down to whether a U.S. Attorney is an “inferior officer.”

I doubt that most U.S. Attorneys think of themselves as inferior in any respect …