Congress is taking another swing at amending the Foreign Intelligence Surveillance Act. A proposed bill by the Democrats in Congress, H.R. 3773 entitled “Responsible Electronic Surveillance That is Overseen, and Effective Act of 2007” or the “RESTORE Act of 2007” (how witty) passed both the House Intelligence and Judiciary Committees on Wednesday.

Naming this act “RESTORE” is more than a stretch. It doesn’t even pass the laugh test. In their proposed legislation, Congressional Democrats (a.k.a. parliamentary invertebrates) have done next to nothing to “restore” the protections of the Fourth Amendment of the Constitution.

The collection of “foreign intelligence information” is an exception to the “probable cause” and warrant requirements of the Fourth Amendment of the Constitution.

Therefore, as the Bush administration has expanded the parameters of “foreign intelligence information,” the less they need to abide by the Fourth Amendment. The RESTORE Act simply carries on this outrageous corrosion of the Bill of Rights.

As Judge Ann Aiken pointed out in her decision in Mayfield v. United States,

Significantly, a seemingly minor change in wording [by the Patriot Act] has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if “a significant purpose” of the surveillance is foreign intelligence. Now, for the first time in our Nation’s history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.

Apparently, the Congress has not heeded the Judge’s warnings:

Section 105B(a)(1) “requires”:

‘‘(D) a significant purpose of the acquisition is to obtain foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e));”

This language is now used as opposed to the language in the original FISA (pre-Patriot Act) that required that foreign intelligence be the “primary purpose.”

And to avoid the further expansion of FISA, the Bush administration must not use the tools in the act against U.S. citizens. Sure.

From Section 105B(b)(1):

APPLICATION INCLUSIONS.—An application under subsection (a) shall include—

‘‘(1) a certification by the Director of National Intelligence and the Attorney General that—

(A) the targets of the acquisition of foreign intelligence information under this section are persons reasonably believed to be located outside the United States;

(B) the targets of the acquisition are reasonably believed to be persons that are not United States persons;

Isn’t the administration that the Congress is now giving this act to the same one that “reasonably believed” that there were WMD in Iraq, that Saddam Hussein was linked to al-Qaeda, that the “mission” was “accomplished,” that the insurgency in Iraq was in its “last throws” years ago and that American soldiers would be treated as liberators when we invaded Iraq?

And if there have been no negative repercussions for the Bush administration for those faulty “reasonable beliefs,” why should they think there will be any in this case?

The expanse of the FISA amendment is immense. Section 105B(a):

Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly apply to a judge of the court established under section 103(a) for an ex parte order, or the extension of an order, authorizing for a period of up to one year the acquisition of communications of persons…

Section 105B(c):

SPECIFIC PLACE NOT REQUIRED.—An application under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.

In short, so long as the Bush administration “reasonably believes” that one person to a communication is outside the United States it can avoid the Fourth Amendment requirements and search and seize that person’s private information anywhere and for up to a year if the “significant purpose” is to collect foreign intelligence.

Well, thankfully the Congress is “RESTORE-ing” the protections of the Constitution…

What is the recourse for American citizens whose civil liberties may be violated by the application of this act? Just as before - none.

Actually, even less than before.

Section 105B(e):

‘‘(3) LIABILITY OF ORDER.—Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with an order issued under this subsection.”

The response of President Bush to this travesty of Constitutional gutting?

“Unfortunately, when Congress passed the Protect America Act they set its provisions to expire in February. The problem is the threat to America is not going to expire in February. So Congress must make a choice: Will they keep the intelligence gap closed by making this law permanent? Or will they limit our ability to collect this intelligence and keep us safe, staying a step ahead of the terrorists who want to attack us?

…

Today, the House Intelligence and Judiciary Committees are considering a proposed bill that instead of making the Protect America Act permanent would take us backward.”

Backward indeed – but not in the sense that you mean, Mr. President.

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