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FISA "Compromise" Is Actually Not A Compromise At All, Thank YouI'm sure you've heard about Senator Bond's proposed "compromise." He floated an outline late last week at a press conference that represents what he calls his last offer in the negotiations about whether and how to expand our foreign intelligence wiretapping laws. While we've only seen a couple key pieces of the legislation, the summary and Congress' past actions, speak volumes. Watch out for these so-called "concessions" that very well may be sold to you as moderate compromises that protect civil liberties: Immunity. The draft moves pending lawsuits against the telecoms to the secret Foreign Intelligence Surveillance Court (bad). It apparently allows parties to file briefs with the court (good — but possibly could have happened without the fix). In the end, this so-called "compromise" might actually be worse than where the Senate bill started and will still result in immunity. Expect people to make hay out of the fact that the proposal raises the level of judicial review from "abuse of discretion" to "preponderance of the evidence." Evidence of what, exactly? As written, the Senate bill says that the existence of an order — whether legal or not — is enough to dismiss the cases. The court will only review whether 1) the certifications were issued between 9/11 and January of 2007, 2) were issued by the AG or an element of the intelligence community, and 3) were approved by the President. We already know all of these conditions are going to be met. In the end, the cases are going to be dismissed if the government sent them a piece of paper, regardless of whether that piece of paper was legally sufficient under FISA. This is immunity pure and simple because the companies are NOT being judged on whether they followed the law. If the intent was truly to just have the FISA court review whether the orders were legal — as Mr. Bond and the media keep repeating — the drafters could have in literally in one or two sentences transferred the pending cases to the FISC, and permitted litigation to continue there as to whether the orders satisfied FISA's requirements. Prior Court Review. The press release states there is court review before surveillance starts. However, the court review can be eliminated when there are "exigent circumstances" that include situations where information will be lost if is time taken to apply for an order from the FISA court. By definition, it takes time to apply for a court order. With that soft of a trigger, when wouldn't there be an exigent circumstance? And that's the whole point — you don't get information until you apply for a court order and it is approved.There are true emergencies that are reflected in the original FISA — as drafted this "compromise" will probably go way too far. This is quite possibly the quintessential case of the exception engulfing the rule. For example, under FISA's current emergency provision, if the court denies the retroactive application after collection has started, the government is required to stop surveillance immediately. The government is prohibited from ever using or distributing the information if it pertains to a U.S. person, except to protect life or limb. These strict back end protections served as a strong disincentive to fudge the true meaning of emergency. However, you can bet money on the fact these protections won't be in the final draft — they weren't even in the House Democrats' last bill. That version instead allowed them to continue surveillance for 30 days while resubmitting the request for an order, continue surveillance through formal appeals if the order is denied, and ultimately, keep and use all the information at the end of the day even if finally the court finds that no emergency or exigent circumstance existed. This problem is amplified because the orders are for entire programs of surveillance, and not individualized warrants as required by FISA. Even if some form of this Democratic formulation ends up in the bill, the "exigent circumstances" provision blows a huge whole through both the letter and the spirit of the prior court review requirement. Exclusivity. It's already in FISA. This is not a "concession," period. Why did we highlight these three issues? Because these are the three issues that Dems have been demanding. Now that they have at least the specter of court review, exclusivity and an immunity fix — they may just take it and run. Right now it is more important than ever that people call their Representatives and let them know that they are watching — and they know the difference between truly protecting civil liberties and a bum deal.
FISA Train Speeds Off the Tracks
Yesterday the FISA train came off the rails in a big way - oddly enough, right as the House was taking up railroad safety. After beginning a debate in the morning, then breaking for a short recess, the Republicans offered a particularly nasty motion to recommit (or MTR, which sends the bill back to committee for further discussion) that, through its specific wording, would have killed the Democrats' RESTORE bill right then and there. Rather than risk it, the Dems took their bill and went home.
It looks like Democratic leadership is getting squeezed from the left and the right. On the left, members are hesitant to give the administration warrantless wiretapping of Americans. Hopefully they will finally consider Congressman Rush Holt's (D-RI) simple, one-paragraph fix that will that will put the RESTORE Act back in line with the Fourth Amendment and make sure Americans get individualized warrants when they are tapped on US soil - no excuses, and no semantics about who's really the target (as if that really matters when the government is listening to your phone calls). On the right, Motions to Recommit are the minority's right - a last ditch amendment offered on the floor right before the final vote. As currently worded, the MTR on the FISA would send the bill back to committee to consider language basically saying that nothing in the bill can prevent the government for spying in the name of terrorism. The silly thing is that before the Dems took the majority, MTRs were no big deal, and were voted down by the Republicans 99 percent of the time. They continue to plague this Dem Congress, which just can't seem to keep its most conservative members in check. There are pretty solid rumors that telecom immunity is already in the Senate bill. And, frankly, if the language is anything like the past attempts we've seen, it's a little too broad for our taste. Instead of singling out the telecoms, it allows immunity to be granted to anyone alleged to have cooperated in the warrantless wiretapping program. Doesn't that include Mike McConnell? Alberto Gonzales? Vice President Cheney? President Bush? The Senate needs to make sure that what they allow to be in the bill doesn't have unintended consequences. When it comes to giving out get-out-of-jail-free cards, shouldn't we make the process a little more stringent than effectively flyering Pennsylvania Avenue? Quick update - As of 3 PM today, Senator Christopher Dodd (D-Conn.) has put a hold on the Senate bill. Of course we'll be keeping a close watch on this. We'll be asking for your help, too, so watch your inboxes.
FISA Fight Sends Congress Into Twilight Zone
Ladies and gentlemen, you are now entering the Twilight Zone. The House is in an uproar over this FISA overhaul.
Republicans object to the fact that the public never saw the FISA bills currently barrelling through Congress. Meanwhile, the Democrats are ready to violate their promises for a more open government, and they're gunning to gut FISA, as the president has demanded. And the ACLU is siding with conservative Republicans! (That's not entirely unprecedented - our fact-checkers are furiously tallying how often it's happened - the situation certainly makes for some odd bedfellows.) Today on The Huffington Post, legislative director Caroline Fredrickson explains the lie that FISA hasn't kept pace with technology: Any electronic communication you make - email, a telephone call, a text message, your instant messages over Google Talk, AIM or Skype - travels over the same wires and airwaves. Whether the signal is carried over fiber optics, a microwave relay or through a garden variety twisted-pair phone wire, FISA can get at it. These are the same wires and airwaves that were in place in 1978 when FISA was enacted. So while technology has indeed advanced in strides, as Caroline says, "the fundamental way in which electronic communications are transmitted has not." So to say that the law hasn't kept pace with technology is a cover-up for the truth: The White House is looking to remove all judicial oversight, so it can intercept your overseas phone calls and emails without the troubling obstacle of warrants, or judges. President Bush is looking for a blank check. Caroline adds: That this Democratic Congress is even considering Director McConnell's proposed changes is, for lack of a better word, a disgrace. Just this week we discovered that even the secret intelligence court has rebuffed the administration's request to scoop up unidentified foreign to U.S. calls through some still-secret dragnet. Congress, ostensibly a level-headed check on executive overreaching, got rolled on the Patriot Act and now is about to get rolled on a brave new world of warrantless wiretapping We're asking everyone to keep the calls pouring in to Congress as they head for a likely extended session over this critical issue. If you value the oversight the surveillance court has over the president, if you value the privacy of your emails and phone calls, please pick up your own phone today and make your voice heard!
We're Itching For a Fight With Some Contempt
Yesterday we saw the beginning of what the media is calling a "showdown" between Capitol Hill and the White House. We hope it grows into a full-on rumble. The House Judiciary Committee voted to hold former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten in contempt for violating their subpoenas over the firing of Justice Department Officials.
It's a good start. We hope Congress sticks to their guns and holds members of the Bush administration in contempt for flouting their subpoenas on NSA wiretapping. One day before Bush administration's deadline to turn over information about the illegal NSA wiretapping program, the date was extended. We hope that extension ends soon. Congress has a choice: get the documents in their hands or hold the President in contempt. Congress keeps resetting their clock on subpoenas, but Americans are keeping their own count. Reset the stopwatch, and we ratchet up the Subpoena Watch. It's been eight days since the deadline passed and the President is still dragging his feet. Congress must put an end to this President's excuses soon and make him own up to the laws this administration has broken. Checks and balances define us as Americans and prevent any of the branches from grabbing too much power. If one of the branches grows complacent or corrupt, trouble starts brewing and the balance collapses. It's a civics class staple, but with Bush abusing his power and Congress waiting in the wings, it's a lesson that demands repeating. We've got our eye on Congress. We hope they follow through and hold Harriet Miers and Josh Bolten in contempt. And we're counting the days until Congress does the same for the NSA program. Tags: Civil Liberties News |
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