Conflicting Statements On FISA

There's considerable evidence that House and Senate negotiators are deadlocked on whether to give Bush everything he wants, including immunity for his lawbreaking, on FISA.

House Majority Leader Steny H. Hoyer said Wednesday the House will not take up an electronic surveillance measure this week, further delaying any decisions on the controversial measure.

Hoyer said in his weekly press conference that he hoped to wrap up work on an update to the Foreign Intelligence Surveillance Act; “towards the end of this week or the beginning of next week.”

However, the majority leader acknowledged that there were “still disagreements” within the Democratic caucus over the issue of granting immunity to telecom companies who aided the government in the wiretapping program [...]

Although Democratic leaders insist they are working feverishly to iron out their differences, one House member—speaking on the condition of anonymity—suggested it could be a long time, if ever, before the bill was brought for a vote.

“A lot of people think the politics of doing nothing on this issue are very good for both sides of the political spectrum,” they said.

Behind the scenes, it appears that there are internal differences between Democrats over the immunity issue. However, House Speaker Nancy Pelosi pointed to exclusivity as the real issue.

In a conference call with bloggers today, House Speaker Nancy Pelosi (D-CA) made it clear that her highest priority for a surveillance bill was that it contain a so-called "exclusivity" provision -- a measure that would explicitly state that the bill would be the "exclusive means" by which the government would conduct surveillance, or in other words, the president does not have the power to ignore the law if he/she so pleases.

"Exclusivity is the issue," she said.

Of course, the original FISA bill had "exclusivity" in it. Bush broke the law. Making FISA the exclusive means for intelligence gathering and surveillance is nice, but it just says you can't break the law. Amnesty says that breaking the law doesn't matter.

I think what's causing this new-found concern against amnesty within the Democratic caucus are the stories about major privacy violations as a result of national security letters, which allowed the FBI to illegally obtain personal information of Americans, and this new question about emails, which puts the fight over FISA into an entirely new context:

The fight in Congress and the big push for expanded wiretapping powers has nothing to do with intercepting foreign-to-foreign phone calls inside the United States without a court order. In fact, it turns out that the nation's secret wiretapping court is fine with that.

That extraordinary admission came from Assistant Attorney General for National Security Kenneth Wainstein at a breakfast on Monday, according to the Washington Post.

"At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States."

That would make sense since email doesn't go directly to a device in most cases, it goes to a server that holds the email until the recipient(s) come to pick up the email -- which could be and often is from different parts of the world -- think of any business traveler.

DNI Michael McConnell, the serial exaggerator who claims to be a non-political straight shooter, himself kept saying the NSA lost 70 percent of its capabilities after the ruling.

If that's the case, that means that 70 percent of what the NSA does is collect emails inside United States telecom infrastructure and service providers.

Really? If that's what tens of billions of dollars are going to the NSA for annually, we don't need to give them more power to read emails, we need to get them to learn to do real intelligence collection.

I think that Democrats took a look at the loss of privacy on all these other fronts and decided that they want to actually know the breadth of it with regard to telecom surveillance. You cannot give cover to the executive to gather intelligence at his discretion without oversight or judicial review and expect there to be no abuses. This is all devastating evidence in favor of stopping any talk of immunity. DFA is fighting very hard against those who would give the President and his corporate buddies full carte blanche to break the law. We need to fight for justice on this one. No amnesty.