Invertebrate Evolution

In a shocking turn of events, House Democrats have indicated that they do indeed have a semblance of a backbone. Granted, when all is said and done, it is unlikely to pass in its current form, but the Dems plan to unveil their version of amendments to the FISA statute on Thursday.

The summary:

FISA Amendments Act

Bill Summary

March 11, 2008

The revised House legislation to amend FISA grants new authorities for conducting electronic surveillance against foreign targets while preserving the requirement that the government obtain an individualized FISA court order, based on probable cause, when targeting Americans at home or abroad. The House bill also strongly enhances oversight of the Administration’s surveillance activities. Finally, the House bill does not provide retroactive immunity for telecom companies but allows the courts to determine whether lawsuits should proceed.

Title 1: Surveillance Authorities

· Provides for surveillance of terrorist and other targets overseas who may be communicating with Americans.

· Requires the FISA court to approve targeting and minimization procedures – to ensure that Americans are not targeted and that their inadvertently intercepted communications are not disseminated. These procedures must be approved prior to surveillance beginning – except in an emergency, in which case the government may begin surveillance immediately, and the procedures must be approved by the court within 30 days. (This may be extended if the court determines it needs more time to decide the matter).

· Provides prospective liability protection for telecommunications companies that provide lawful assistance to the government.

· Requires a court order based on probable cause to conduct surveillance targeted at Americans, whether inside the United States or abroad.

· Requires an Inspector General report on the President’s warrantless surveillance program.

· Prohibits “reverse targeting” of Americans.

· Explicitly establishes FISA Exclusivity – that FISA is the exclusive way to conduct foreign intelligence surveillance inside the U.S. Any other means requires an express statutory authorization.

· Sunsets these authorities on December 31, 2009 (same as the PATRIOT Act sunset).

Title 2: Litigation Procedures for Telecommunication Company Liability

· Does not confer retroactive immunity on telecom companies alleged to have assisted in the President’s warrantless surveillance program.

· Provides telecom companies a way to present their defenses in secure proceedings in district court without the Administration using “state secrets” to block those defenses.

Title 3: National Commission on Warrantless Surveillance

· Establishes a bipartisan, National Commission – with subpoena power – to investigate and report to the American people on the Administration’s warrantless surveillance activities, and to recommend procedures and protections for the future.

Most glaringly, they have not included a clause granting retroactive immunity to the telecommunications companies, a clause demanded by the Bush administration and included in the Senate version of the bill passed in February. As I stated in a previous post, immunity is the most contentious issue surrounding the amendments to FISA. I've already laid out my objections to that particular argument so I won't redress them here.

Instead of immunity, the proposal would allow the defendants in civil trials to present classified evidence in their defense to the presiding judge. This would be done in secret and the documents would not be publicly available. Inclusion of the clause comes from the administration's claim of "state secrets" which would have prohibited the phone companies from presenting these confidential documents in court, which would go a long way in establishing that they acted in good faith and are therefore not liable.

As it stands, good faith seems to be what defenders of immunity have gravitated toward, saying that regardless of the legality of their actions, the telecoms were acting in good faith and had assurances from the Justice Department that their cooperation in the Terrorist Surveillance Program was legal and legitimate. The proposal would grant them the opportunity to prove that the Justice Department had steered them as suggested and perhaps limit their vulnerability in civil trials.

Third, the proposed legislation would establish an oversight committee and require and Inspector General to report on the program. Seems good in theory, though we pretty much have evidentiary proof that the Bush administration will obfuscate and obstruct to the full extent of its imagination, so that clause is likely a wash.

In spite of the unlikelihood the legislation is passed as is, the Democrats are at least illustrating a little grit on a significant issue.



A couple of additional thoughts per previous discussion of the misinformation regarding immunity and FISA:

• Julian Sanchez presents a pretty thorough debasing of the main pro-immunity talking points here.



• It should be noted that during the period from 1979 through 2006, the FISA court has rejected all of 5 applications for a warrant while approving 22990. The rate of rejection: .022 percent. That's 1/50 of a percent. It seems that the court itself, if the process is seen through properly, is not, and never has been, a hinderance on surveillance authorities.



• For all their posturing, the Republicans aren't even taking part in this debate short of empty proselytizing and instilling fear in the public. This refusal to take part in the proceedings begs the question: If allowing the PAA to lapse was a tragedy, wouldn't working toward a substitute be a priority? In the US Congress, it's a bit hard to expect the other party to simply accept the other chamber's bill without discussion, and trying to stifle any ounce of debate is reckless.

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