There wasn't much in the way of fireworks at today's House Judiciary Committee hearing on recent revisions to FISA, which focused on legal theories and offered no new revelations about warrantless eavesdropping or how it has been used by the Bush administration. Still, there were a few interesting moments.
The hearing was sparked by the Protect America Act, which was hastily passed in August -- with the acquiescence of the majority Democrats, if not their outright approval, and the votes of 16 Democrats in the Senate and 41 in the House -- after the Bush administration came to Congress and, in part, complained about a still-secret FISA court ruling that restricted what was apparently a key part of the administration's program.
The administration initially said it was asking for small changes in the law, but according to the panelists at the hearing today, that's not what happened. One of those testifying was former Georgia Republican Rep. Bob Barr, who broke with his old party last year, largely because of his views on civil liberties. In response to questions from Rep. Hank Johnson, D-Ga., Barr confirmed that -- in his view -- the changes to FISA now mean that the communications of any American overseas, be he or she a U.S. soldier in Iraq e-mailing a girlfriend back home, a student studying abroad calling parents or a doctor on vacation checking in with patients, can be surveilled without a warrant because one party is outside the country.
Also testifying was someone with intimate knowledge of warrantless government wiretapping, Morton Halperin. Halperin, who is now affiliated with the Open Society Institute and the Center for American Progress, served briefly in the Nixon administration, which later tapped his phone. Halperin successfully sued Nixon and some administration officials over the tap.
During the hearing, Halperin got into a bit of a tiff with Rep. Bob Goodlatte, R-Va., over the question of what happens if a channel that is supposedly purely foreign to foreign is being surveilled, and then turns out to include American citizens. Both agreed that in this case, they would want the administration to go to the FISA court for approval. But, Halperin heatedly told Goodlatte that such a provision was explicitly rejected by the Bush administration during discussion of the latest changes.
The only panelist speaking in favor of the changes was Robert Turner, a professor at the University of Virginia law school with a long résumé who, among other things, served for a short period in the Reagan administration. Turner vociferously defended the changes and even attacked the constitutionality of FISA itself, saying it was an unconstitutional intrusion by Congress upon the powers of the president and that "FISA is only going to work if you have the agreement of the president."
Turner also questioned the wisdom of hearings on the subject generally, saying the Soviets used to use the Congressional Record as a source of intelligence.
"When you hold a hearing, you tell our enemies how our system works," Turner said.