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Spring and Surveillance in the Air

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April 1, 2008

Congress has come back to town (and so has baseball!) and with it comes renewed debate on updating the Foreign Intelligence Surveillance Act or FISA. We left off two weeks ago with the House refusing to take up the Senate bill and passing its own version of the spy legislation. Well, that leaves the Senate in a bit of a pickle since that put the ball squarely back in its court. The differences between the two bills are vast. The House bill has a few Fourth Amendment protections and contains no immunity for the phone companies and their role in the administration’s domestic spying program. The Senate bill, on the other hand, is a constitutional train wreck and has immunity tacked on to boot. Neither house is too keen on passing the other’s bill, so let the congressional staring contest begin.

In the meantime, last week the Director of National Intelligence, Mike McConnell, dialed up the rhetoric with a speech in South Carolina. Those of you who’ve been following the FISA drama know that DNI McConnell was the administration’s go-to guy on the Protect America Act and, in that capacity, may have sold Congress a few bridges. In a speech to students at Furman University (PDF), the DNI once again spoke of the need for telecom immunity and warrantless wiretapping with as few restrictions as possible. Senator Feingold had a few things to say about that.

In further bad news for DNI McConnell, a story in the Los Angeles Times today outlined the fallout of his role as go-between on the Protect America Act and subsequent FISA legislation. Lawmakers were none too pleased with his bad-faith negotiating and tunnel-vision debate style. It looks like the DNI’s days are numbered as the intelligence community’s ambassador on the Hill.

We should also take note that a story appeared in the Wall Street Journal this morning disclosing that the administration may be facing the harsh truth; that if it wants a bill passed by both houses in Congress, it will have to bend to the will of the House. Could the Bush Administration really be coming around to the idea of compromise? Or is it some elaborate April Fools’ Day gag?

While we hold our breath on that, there is new information to reinvigorate the debate! Eric Lichtblau of The New York Times has published his first book, Bush’s War: The Remaking of American Justice. Lichtblau won a Pulitzer Prize, along with James Risen, for breaking the NSA warrantless wiretapping story – the story that sparked this entire debate on domestic spying. The book recounts his time covering the Justice Department for the Los Angeles Times and New York Times, by detailing the Bush Administration’s compulsion for secrecy and, ultimately, how the NSA was ordered to turn its microphones into America, rather than out of it. Lichtblau explains the fierce debate – long denied by the administration – that the program caused in the highest echelons of the White House and federal law enforcement. A fascinating read that will helpfully pull the renewed FISA debate into tighter and clearer focus.

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