GLENN GREENWALD'S POST on the so-called "Terrorist Surveillance Act of 2006" (pdf file here) is a must-read:

[The bill] expressly empowers the President, in Section 2(a), to "authorize a program of electronic surveillance without a court order for periods of up to 45 days." The President can simply renew the program every 45 days by certifying that renewal of the program is appropriate (Section 4(b)(2)). Contrary to initial press reports and to this morning's article in The Washington Post, the newly created Intelligence Subcommittee ... has no power to approve or reject any warrantless eavesdropping programs. Its only purpose is to be briefed periodically on the eavesdropping activities undertaken as part of the program.

In sum, the bill authorizes and makes legal precisely the illegal conduct in which the Administration has been continuously engaging since September or October of 2001. The Administration claims that it reviews its warrantless eavesdropping every 45 days, so that's precisely what the bill authorizes. Or, as Richard Nixon says: "when the president does it that means that it is not illegal."

Glenn examines the bill's provisions in detail -- too long to quote all of it here, but his analysis is superb.

Here are the main points:

1. There is no meaningful oversight: A handful of Congress members on an intelligence subcommittee would be "briefed" on surveillance targets, but as a courtesy only; they would have no authority to forbid or stop the activity and could not share what they learned with anyone outside the subcommittee.

2. The 45-day limit on warrantless surveillance is a sham: At the end of the 45 days, the president can renew the warrantless surveillance for another 45 days, ad infinitum.

3. The bill's "probable cause" provision is a sham:

... It does not require case-by-case probable cause, merely that there be probable cause that some (but not all) of the intercepted communications under the program involve individuals affiliated with (or "working in support of") terrorist groups. Thus, a program which intercepts the communications of totally innocent people with no connection to terrorism is perfectly fine as long as the program also intercepts communications of someone who does have such connections.

Plus, there is no outside mechanism to define probable cause or determine whether it exists. If the president says there is probable cause, there is probable cause. As a legal term, therefore, it has no real meaning at all.

4. The proposed legislation is really not law at all in any real sense: It's only rubber-stamping what the Bush administration is already doing; and since the nominal limits on the president's power to conduct warrantless surveillance on Americans lack any enforcement mechanism, there really are no limits. Glenn again:

... As permissive as it is, this bill still purports to impose minimal limits on the power of the President to eavesdrop, but the whole crux of the NSA scandal is that the President believes that Congress has no power to limit what he can do. Thus, what conceivable rationale is there for Congress to enact laws purporting to impose limits on what the President can do when the President has made clear he will break those laws if he decides he wants to? This bill merely amends FISA ( by significantly loosening its requirements), but the President still says he has the right to violate FISA, so what is the point of amending a law which the President will violate when he wants to?

This is a completely fruitless and absurd exercise to engage in without resolving the question of the President's claimed law-breaking powers. In reality, this is the only point worth making. Laws passed by Congress which are designed to place limits on the President's actions are worthless because the President has claimed the power to ignore those laws. And we know this both because he has said so and because he has been ignoring them. All other discussions about this bill or other bills are just academic as long as the President claims, as he does, the power to break the law.

More blogger commentary:

Marty Lederman at Balkinization: He calls the bill "The Reward for Lawbreaking Act of 2006."

The Carpetbagger Report: Republicans are presenting the bill as a "compromise" -- they are addressing Democratic objections to Bush violating the law by making it legal for the president to ignore the law.

Lean Left: "This law destroys the Fourth Amendment. ..."