FISA Update

I'm starting to get worried with what I'm hearing about a FISA "compromise." Republicans in Congress have been supposedly shifting on the rules governing surveillance, and are claiming that this is their final offer. Steny Hoyer and Jello Jay Rockefeller have been working on this bill with Kit Bond, and it doesn't look good. Here's Ryan Singel's report.

As for amnesty, here's a compare and contrast between bill (.pdf) the Senate passed in February and Bond's compromise.

S. 2248: In any case brought against a telecom for allegedly helping the government spy on Americans, the Attorney General could then write a secret letter to the judge in the case. The letter can certify that the company didn't participate or that the companies had gotten a piece of paper from the government at some point, saying that the President thought the program was legal. The letter does not even have to say that the telecom's participation was legal, simply that the government's end was. The judge would be obligated to throw out the case, unless he found an "abuse of discretion" on behalf of the Attorney General.

Bond compromise: Under this proposal, the Attorney General's letter goes to the secret spying court, rather than to a normal federal judge. A FISC judge would actually be able see whatever requests or orders were given to the telecoms, and parties in the case could actually file briefs. The judge would then decide on a "preponderance of the evidence" whether the telecom secretly spied on Americans as part of a program authorized by president and that they got a letter at some point from the government.

In other words, the outcome in the compromise is as foregone as the original amnesty provision. Both essentially work like directives to the court to throw out lawsuits brought by Americans who allege massive violation of federal privacy laws.

This is pretty close to the Feinstein "compromise" on FISA from earlier this year. It allows a secret court to make the determination on allowing lawsuits to go forward - of course, it's a secret court, and the point of the lawsuits is not necessarily to bankrupt telecoms but to discover the extent of the spying on Americans by the White House, which this would short-circuit. In addition, it sets up FISA as the exclusive means for telecom surveillance, which is fine, but that's already the law, and the Bush Administration thinks they have the power to invalidate exclusivity by executive order and secert law, anyway.

There is no constituency for this bill other than the telecom industry, which has spent millions in lobbying fees already this year. There's supposedly a deadline in August after which some wiretaps set right now would have to be stopped, which could be fixed very easily with a patch covering international communications that go through a domestic switcher. There is absolutely no reason to give in on this. John McCain is flopping like a fish on this one because he doesn't even know what the independents want out of this - the truth is they want NOTHING and they care about their civil liberties. The right has already put up the TV ads and called Democratic members of Congress soft on terrorism and it DIDN'T WORK. Somehow the Dems are acting like it did. Of course, this is because they feel just as culpable for spying on Americans and want to eliminate any possibility of the extent of the spying getting out. So we're fighting against two parties on this one.

But fight we must. The ACLU has a petition calling on people to reject the Bond compromise. Progressive organizations like Blue Majority are running our own ads aimed at wayward Dems like the awful Chris Carney, taking them to task for supporting warrantless eavesdropping. They Work For Us is running radio ads in Bush Dog districts as well. Somehow these conservative Dems think they own the caucus but that's just because they aren't being scrutinized for their actions, which are substantially similar to the actions of the Bush Administration which the country has rejected.