FISA BS Part II: "Sunset"

There are many lies being told about the Protect America Act. These lies are being put out into the ether by a compliant media with no research, investigation, or contradiction. They are being told by: (1) the WH (who certainly know the truth and have a unquestionably vested interest in keeping it from the public), (2) the WH's supporters in the punditry (who don't care what the truth is, as long as they keep getting invites to cozy tete-a-tetes with Our Dear Leader), and (3) congressional Democrats (who also know the truth (or should know, in which case they are complete idiots who won't bother to read a 5 page bill that utterly destroys part of the Bill of Rights) but don't want the public to discover the truth because it would paint them as the cowards that they are, as persons who have knowingly, intentionally betrayed their oath to uphold the Constitution).

The worst of these falsehoods is the story the Democrats are pushing in regard to a so-called "sunset" provision written into the law. Supposedly, this provision states that the Act will, unless affirmatively reauthorized by congress, expire in six months. According to this tall tale, the Act is a "temporary" fix, and can be re-addressed when the Great Danger we are facing isn't so urgent (and presumably, when it won't interrupt their vacation plans).

Do not believe this; it is essentially an outright lie. While it is true that such a provision is written into the Act, the very next provision states that notwithstanding expiration of the Act, any intelligence gathering operations authorized under the Act "shall remain in effect until their expiration." Since such operations may be authorized for up to one year, this will allow the NSA (under the watchful gaze of the Judge) to authorize (or renew) operations on the day before the sunset (Feb 1, 2008), and then, regardless of whether congress grows a spine and blocks the Act's reauthorization, these operations will continue until Feb 1, 2009 (i.e., 10 days after Bush's term is up).

I have a lot of things I'd like to sell you if you are one of those naive souls who don't believe that come January 2008, BushCo will authorize every conceivable type and kind of intelligence gathering activity that their devious imaginations can dream up. And, sunset be damned, these activities will be 100% legal for at least the remainder of BushCo's second term. Unless, of course, congress musters a veto-proof majority to repeal the Act. Anyone who has been following congress since last Fall knows, for an absolute certainty, that that has not even the slightest possibility of occurring.

To sum up: the sunset provision means jack shit, and when you hear Democrats talking about it as a "saving grace" or "another bite at the apple", they are lying to you pure and simple.

_____________________

As an aside, this whole FISA fiasco had me on the point of stopping my political blogging and swearing off politics altogether. But then, I held back my disgust long enough to actually read the Act, and I confirmed that the sunset was totally bogus, a red herring, and so I went over to Balkinization (where, as noted in a post below, they have comprehensive coverage of the thing from lots of ivy league law professor types) and posted a comment similar to the above (but more analysis-y). I came back later to discover that Professor Marty Lederman of Yale Law School, had basically paraphrased my analysis and put it in a post on the front page. I then went to some of the other blogs I frequent and posted links to Lederman's post. And now, lots of people are talking about it. Hopefully the bigger media outlets will pick up on it. I'm sure this would have come to light anyway, and probably sooner than later, but it was still rewarding to see this happen, and a small contribution like this has made me understand that sometimes paying attention and speaking out can make a difference, if only a small one (a very small one, in the whole scheme of things).