OK, I don't get it. Why are the Congressional Democrats wrong on this FISA thing?

[WilliamPitt]

I'm pretty tired today, so this may be nothing more than me being dense...but:

House introduces new FISA legislation.

Today, House Judiciary Committee Chairman John Conyers (D-MI) and House Intelligence Committee Chairman Silvestre Reyes (D-TX) introduced the RESTORE Act, the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007. Here are the key provisions:

* Restores court oversight of intelligence by requiring that electronic surveillance programs be approved by the Foreign Intelligence Surveillance Act (FISA) Court

* Mandates that FISA warrants be obtained when the administration wants to undertake surveillance of persons in the US

* No retroactive immunity for telecommunications companies that cooperated with the administration’s warrantless surveillance

* Does not require individual warrants when targets are reasonably believed to be abroad

* Ensures FISA is the exclusive means of electronic surveillance and that no modifications can be made without express legal authorization

A summary of the RESTORE Act can be found here. The bill also requires the Justice Department to reveal the details of all electronic surveillance conducted without court orders since 9/11.

Link: http://thinkprogress.org/2007/10/09/house-introduces-new-fisa-legislation/

Why is this so bad? It restores FISA oversight, doesn't let telcoms who participated off the hook, establishes FISA as the controlling law for electronic surveillance, establishes that FISA can't be modified by fiat, and requires Justice to hand over all the surveillance materials they collected without court approval.

That warrants-for-targets-reasonably-believed-to-be-away thing sounds squirrelly...but on the other hand, an American warrant doesn't swing a lot of weight beyond our borders, so it's a push.

Basically, the Act puts FISA back where it was before George & Co. kicked down the oversight requirements.

Yeah, it sucks that this administration has such a powerful weapon at it's disposal, BUT a) it's been law since the mid-70s, and b) this Act puts back the firewalls that were originally part of the law when first passed, so c) I don't see why the congressional Dems deserve to get flogged.

Should they have just said NO and passed no legislation at all on the matter? Sure...but that would have left Bush & Co. free to ignore FISA oversight as they pleased. That would not please me.

It'll get vetoed, and if Congress overrides the veto, Bush will barf up another signing statement and declaw the Act anyway...but that's a whole 'nother bucket of clams.

What am I missing?

[ourbluenation]

1. I dont get it either...to me this is a step in the right direction. n/t

[blondeatlast]

2. Like my 10 year old, many have a Google mindset.

It's the keyword that sets many off, in this case, FISA.

I think it's a step in the right direction--backwards, to where the FISA was before W dumped on it.

[Freddie Stubbs]

3. Some people are always looking for the clouds, even on a sunny day

[MrCoffee]

4. that is one awkward legislative title.

Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007.


someone stretched to make that acronym. i am outraged.

[WilliamPitt]

5. If that's the worst part of it,

I'm sleeping well tonight.

;)

[L. Coyote]

75. Here It Is: The Full FISA Legislation = on TPM

FHere It Is: The Full FISA Legislation
By Greg Sargent - October 9, 2007
http://tpmelectioncentral.com/2007/10/here_it_is_the_full_fisa_legislation.php


You can read the full text of the House Dems' FISA legislation right here in our TPM Document Collection.
http://www.talkingpointsmemo.com/docs/fisa-mod/?resultpage=1&

We're awaiting reaction from House progressives on this. We're told there may not be any reaction until tomorrow, as staffers are currently digesting the bill's contents. At any rate, you've got the full bill now, in case you feel like doing a bit of digesting yourselves. Enjoy.

[cali]

6. uh oh. I may have gone off half cocked,

set off by reports here and links to articles like the one in today's times. Because it looks to me like you may be right: It doesn't look like anything to alarmed about- except for the abroad exception.

I'm just confused at this point. Is this the same FISA bill that all 72 members of the CPC opposed? And isn't Conyers a member of the CPC?
Is this something different? Is more than one bill being offered?

[Warpy]

7. It sounds like it's being spun, and not by Democrats

Seriously, this restores what the law should have been all along. Painting this as another "cave" by Congressional Democrats is pure spin, smoke, hot air, and hooey.

Perhaps we need to follow the sources of this disinfo campaign.

[cali]

9. I agree.

Take a look at the title of the Salon piece by Glenn Greenwald that SisterBabylon just posted, and then read the entire piece.

What's going on?

[blondeatlast]

11. My reaction as well--the headline is VERY, VERY misleading. nt

[WilliamPitt]

12. Right here

http://www.nytimes.com/2007/10/09/washington/09nsa.html?hp

1. The Times doesn't have the facts straight; or

2. ThinkProgress doesn't have the facts straight; or

3. I'm just fucking crazy.

*sigh*

[blondeatlast]

15. Not crazy--dizzy from all the spin in that article. So am I.

Not to mention it's badly (perhaps deliberately so) written.

Read the Greenwald piece in babylonsuster's thread for some clarity on it.

[Warpy]

19. Or 4. somebody was just too damn lazy to do the homework

and ASSumed Congress was caving to Stupid, once again.

That's the likeliest explanation and 40 lashes with a 3 inch length of homespun knitting yarn for me for suspecting conspiracy when laziness is the more obvious cause.

[blondeatlast]

21. I don't think Will's tired or crazy--I think the Times piece is really, really badly written.

It makes no sense to me and I've read it twice now.

[WilliamPitt]

23. Could ThinkProgress be talking about the Senate version

but wrote 'House' accidentally?

[Warpy]

29. I was referring to the spin that this represents a Dem cave

not to Will, whose post was spot on that it restored FISA to what it was supposed to have been during the last 6 years of administration vandalism.

[blondeatlast]

47. In my roundabout way, I was agreeing with you. The spin is dizzying as hell.

I had to settle my stomach after reading it.

[sicksicksick_N_tired]

8. *shrug* I guess I must be missing something, as well.

:shrug:

[TwilightZone]

10. Jerking knees.

As another poster noted, it seems to be reaction based solely on the name.

[incapsulated]

77. Yup

My knees were jerking until I read the specifics as well. And there is a difference between the house and the senate here, too.

[babylonsister]

13. I'm concerned about that retroactive immunity that the telecom companies

might get. I realize this hasn't happened yet, but what compromise is Rockefeller working on, and I'm not understanding why these utility companies will get immunity for future acts when nothing is resolved yet.

Also, I'd like to know if they're investigating Goldsmith's charges when he strongly suggested the program was illegal.

[WilliamPitt]

Well...

"No retroactive immunity for telecommunications companies that cooperated with the administration’s warrantless surveillance"

?

[blondeatlast]

18. This paragraph, from the Times piece, seems to contradict what I'm reading elsewhere:

Perhaps most important in the eyes of Democratic supporters, the House bill would not give retroactive immunity to the telecommunications utilities that participated in the eavesdropping. That has been a top priority of the administration. The temporary measure gave the utilities immunity for future acts, but not past deeds.

I woulod think that is what the Democrats would want--NO immunity.

Is the NYT piece playing us? :shrug:

[tridim]

69. The NYT has been "playing us" since at least 2003.

They achieved the exact reaction they wanted, Dems fighting Dems.

[babylonsister]

20. I 'get' that, but what would Rockefeller be compromising on?

And again, I'm not getting why the immunity for future acts. Maybe I'm just confused, but am trying to understand. I just fear being snowed again.

http://www.nytimes.com/2007/10/09/washington/09nsa.html?ei=5088&en=2f59d3ec4712a525&ex=1349668800&partner=rssnyt&emc=rss&pagewanted=all

Perhaps most important in the eyes of Democratic supporters, the House bill would not give retroactive immunity to the telecommunications utilities that participated in the eavesdropping. That has been a top priority of the administration. The temporary measure gave the utilities immunity for future acts, but not past deeds.

snip//

The House bill would also require the administration to disclose details of the program. Democrats say they plan to push the administration to turn over internal documents laying out the legal rationale for the program, something the administration has refused to do.

In the Senate, the chairman of the Intelligence Committee, John D. Rockefeller IV, Democrat of West Virginia, is working with his Republican counterpart, Christopher S. Bond of Missouri, a main proponent of the August plan, to come up with a compromise.

[blondeatlast]

30. The Times piece is just confusing, period. Very poorly edited, for one thing.

If you look at the piece online, there's a couple of glaring grammatical errors, for one.

I'm a bit alarmed at the "compromise" allegation myself, but I also think the article has been spun so much I'm dizzy.

It reads to me like an OP/ED, but it's on the Washington page. :shrug:

[Mojorabbit]

79. From here

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x2011363

A top Democratic leader opened the door Tuesday to granting U.S. telecommunications companies retroactive legal immunity for helping the government conduct electronic surveillance without court orders, but said the Bush administration must first detail what those companies did.
House Majority Leader Steny Hoyer, D-Md., said providing the immunity will likely be the price of getting President Bush to sign into law new legislation extending the government's surveillance authority. About 40 pending lawsuits name telecommunications companies for alleged violations of wiretapping laws. Democrats introduced a draft version of the new law Tuesday _ without the immunity language.

"We have not received documentation as to what in fact was done, for which we've been asked to give immunity," Hoyer said.

[blondeatlast]

49. What a lot of us are (understandably) missing--the immunity clause affects

whether telecoms have an incentive for testifying AGAINST an administration that steps out of line.

This sounds on the surface like a horrible thing, but in the end it actually indirectly promotes civil rights by giving the telecoms a reason to risk testifying--they won't be prosecuted for complying with a rogue admin.

It isn't perfect, but it will help nail the bastards like W after the fact.

[EFerrari]

14. Glenn Greenwald's take here on babylonsister's thread:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x2005184

[librechik]

42. excellent analysis as usual from Glenn--all is not lost!

no retroactive forgiveness of the telecoms, for example, in the new bill, which was the most egregious insult, IMO...

[WilliamPitt]

45. FISA Court Oversight is what matters most

So Dick doesn't order the NSA to tap every phone of every Democratic candidate's campaign staff.

Rudy would probably love to get a big yellow envelope filled with page after page of transcribed campaign-strategy tele-conferences the NSA was able to record. Crazy? Hell, that was Watergate, and it was easy to do even then.

[librechik]

61. I know--it's practically hopeless, since they seem to wiggle out no matter what

of our well meant oversight plans. Nevertheless,

NGU!

(still got my eye on a beach shack in Baja)

:loveya:

[OmmmSweetOmmm]

16. The law is sunsetting. The Dems can sit on it and not bring to the floor

for the vote. A veto doesn't have to come into play.

[WilliamPitt]

17. I don't think so.

That'd leave no controlling law in place, and no oversight, regarding domestic surveillance via the NSA.

Bad.

[OmmmSweetOmmm]

24. In regard to the original FISA, I believe it was Bruce Fein who

said that bill is unconstitutional too.

Fein is a Constitutional scholar.

And I do believe that the amendment was meant to sunset as a way of re-examining it. The amendment is not cut in stone. The original FISA would still stand.

[spanone]

22. according to the Times

A Democratic bill to be proposed on Tuesday in the House would maintain for several years the type of broad, blanket authority for N.S.A. eavesdropping that the administration secured in August for six months.

In an acknowledgment of concerns over civil liberties, the bill would require a more active role by the special foreign intelligence court that oversees the interception of foreign-based communications by the security agency.

A competing proposal in the Senate, still being drafted, may be even closer in line with the administration plan, with the possibility of including retroactive immunity for telecommunications utilities that participated in the once-secret program to eavesdrop without court warrants.

[WilliamPitt]

25. That's just DEAD FUCKING WRONG.

"A Democratic bill to be proposed on Tuesday in the House would maintain for several years the type of broad, blanket authority for N.S.A. eavesdropping that the administration secured in August for six months."

No. Bush & Co. wanted to be able to avoid having to go before the FISA oversight court.

The House bill requires them to go before that court.

This Times piece is a total goat-fuck.

[Kagemusha]

26. You wanna know what you're missing? Try this:

"The bill to be proposed on Tuesday by the Democratic leaders of the House Intelligence and Judiciary Committees would impose more controls over the powers of security agency, including quarterly audits by the Justice Department inspector general. The measure would also give the foreign intelligence court a role in approving, in advance, “basket” or “umbrella” warrants for bundles of overseas communications, a Congressional official said."

From:

http://www.nytimes.com/2007/10/09/washington/09nsa.html?_r=2&hp=&adxnnl=1&oref=slogin&adxnnlx=1191945985-s7et61iYQ6k8vOBhSK9z5A

These are not individual warrants. These are warrants for GROUPS that the government deems to have some relation to a foreign intel investigation - they need not be targets, and the individuals in these groups need not be targets. Indeed, the membership of the group need not be determined in a firm manner while getting the warrant. The government can just say, "Ok, this person joined up, he's covered by the umbrella warrant." No individual warrant. No court review for the individual. Group warrants with supposedly regular reports to Congress about how that secret stuff's going.

That's what you're missing, and that's a big deal, because as far as my reading goes, that's massively unconstitutional.

[WilliamPitt]

31. Yup. Just got the ACLU notice.

You are quite correct, and this below is excellently and reasonably argued:

*ACLU Statement on RESTORE ACT*

*/ACLU Urges Congress to Include Individual Warrants for Americans/*

For Immediate Release: October 9, 2007

*Washington, DC –* Today the Democratic leadership unveiled the RESTORE
Act. What follows are the ACLU’s comments on that draft.

The following can be attributed to Caroline Fredrickson, Director of the
ACLU’s Washington Legislative Office:
“The ACLU has one key problem with the RESTORE Act. As drafted, the
RESTORE Act still allows for the US government to collect phone calls
and emails from Americans without an individual warrant.

"The problem in the draft legislation is the year-long program warrants
– sometimes called basket warrants, sometime called blanket warrants.
Whatever you call them there is no specific target, which goes against
the Fourth Amendment. The Fourth Amendment requires individual warrants
if Americans are involved.

Program warrants are the 21^st century version of King George’s
heavy-handed intrusions on individual privacy. We would not tolerate
allowing government agents to sit in our living rooms recording our
personal conversations. We should not permit it simply because the
government now has the capacity monitor remotely and without our knowledge.”

This bill is better than the so-called Protect America Act: here are the
areas where the ACLU has seen real improvement.

· Overseen by the court. Re-iterates that FISA is the go-to court
· Requires six-month audit and a database to go to Congress for review.
· Telecom companies are not granted immunity from illegal activity in
this draft of the bill.
· The scope of the searching has been narrowed to “foreign affairs
intelligence and improvement over a more broad definition in the
so-called Protect America Act.

What follows is an explanation of why we oppose the year-long program
warrants in the bill.

_Baskets, Buckets, and Blankets? What's wrong with these so-called
"warrants"?_

Called baskets, buckets or blankets, the new warrants created by the
Protect America Act, and maintained in some form by the RESTORE Act
(Conyers/ Reyes) are most commonly known as "program" or "general"
warrants that have been held unconstitutional for violating the Fourth
Amendment. They may have a new name this go-around, but they are the
same program warrants believed to be used the in the President's illegal
spying program after 9/11 and codified in the FISA modernization bill
introduced by Rep. Wilson that Democrats opposed in the 109^th Congress.

· The Fourth Amendment has several requirements before a search or
seizure is constitutional -- that a judge is involved, that there is
probable cause, that the search or seizure is reasonable and most
important for this discussion -- the things searched or seized have to
be stated with particularity.

· Particularity was written into the Fourth Amendment due to past abuses
by King George, whereby the government would issue blank warrants that
allowed government officials wide discretion to rifle through personal
belongings or search people, without particularized suspicion, to look
for anything illegal. No description was actually given of the illegal
behavior that was being investigated, because the government was on a
fishing expedition. This abuse of power was one of the injustices that
led to the American Revolution.

· Statutes and even individual searches and seizures have since been
held unconstitutional in the past because they violate the particularity
requirement.

The Protect America Act and the RESTORE Act allow the government to
issue these broad program warrants that state neither the targets of the
search, nor the facilities that will be accessed. They do not describe
what is going to be seized, and eventually used, by the government. They
are virtually a blank check that only requires the surveillance be
directed at people abroad, which may very well be unconstitutional.

· The RESTORE Act does not require individualized court orders for
anything collected under the new surveillance program. The program can
collect any communication as long as one leg of it is overseas, leaving
open the distinct possibility--and probability-- that the other leg is
here in the U.S. and is an American.

· If Americans’ communications are swept up by this new, general program
warrant, there is no requirement that a court actually review whether
those communications are seized in compliance with the Fourth Amendment.

The RESTORE Act, as currently written, allows the Attorney General to
negotiate secret guidelines with the secret FISA court about how to use
US information, and whether to go back to the court for an
individualized warrant to access US communications.

· There is no requirement in the RESTORE Act that individualized
warrants be issued before the government collects communications to
which an American is a party. If a US phone call or email is picked up
in these general warrants -- not based on any suspicion of wrongdoing,
or even based on a link to terrorism -- they can be saved and used by
the government without any court review.

· The procedures for this court have always been secret and no one, save
a few Intelligence Committee members, know how well they work or how
they are really implemented. Something so fundamental as whether the
government can listen to our phone calls or read our emails should not
be left to be decided in secret by a handful of people. These issues
have to be written into statute so there is no question about our
privacy and so there can be accountability when the rules are broken.

Attempts to find a procedure that gives the government flexibility while
respecting the constitutional requirement of particularity have been
rejected. It is perfectly reasonable to allow program warrants to
collect calls and emails among foreigners, but Americans deserve -- and
the constitution requires -- that their communications be treated
differently when swept up in the new dragnet.

· Even if one believes that the government really can't tell where each
end of a communication is in "real time," or at the time of collection,
they will be able to eventually. As the Director of National
Intelligence testified last month, the heart of these programs is about
storing communications and accessing them later.

· The government should be forced to go back to court to get a
particularized warrant that meets Fourth Amendment standards before it
can access American communications that have been swept up in these new
blanket or general warrants. Just because the program is directed at
people overseas, it doesn't mean that the Fourth Amendment rights of
Americans who have contact with them have been respected.

· There has not been a surveillance program since FISA was created that
allows massive, untargeted collection of communications that will
knowingly pick up US communications on US soil without any suspicion of
wrongdoing. This creates novel and fundamental Fourth Amendment problems
that Congress should seek to avoid instead of sanctioning.

· Going back to the court may be inconvenient, but doing so is just a
matter or resources and protecting our Fourth Amendment rights is worth
the cost.

[Kagemusha]

32. Ok, we're cool. I hope this law is improved. I really do.

It just mystifies me that even Blue Dogs could support something so blatantly unconstitutional. A close friend of mine with Eastern European ancestry called it Stalinist, and he's right.

May the ACLU (which was, I am told, shut out of the drafting of this law, surely to delay its predictable hostile reaction to this) spread the word far and wide and may that have an effect on the outcome.

[WilliamPitt]

34. Oh, those assholes learned how to get it done a few months ago.

It's easy. When they passed the Military Comissions Act, they included in the bill's language a number of restrictions regarding judicial review. Basically, you can't undo it until you get it into a courtroom...but you can't get it into a courtroom.

I wrote about it when that assbag bill got passed:

It was two Supreme Court decisions, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, that compelled the creation of this legislation. The Hamdi decision held that a prisoner has the right of habeas corpus, and can challenge his detention before an impartial judge. The Hamdan decision held that the military commissions set up to try detainees violated both the Uniform Code of Military Justice and the Geneva Conventions.

In short, the Supreme Court wiped out virtually every legal argument the Bush administration put forth to defend its extraordinary and dangerous behavior. The passage of this legislation came after a scramble by Republicans to paper over the torture and murder of a number of detainees. As columnist Molly Ivins wrote on Wednesday, "Of the over 700 prisoners sent to Gitmo, only 10 have ever been formally charged with anything. Among other things, this bill is a CYA for torture of the innocent that has already taken place."

It seems almost certain that, at some point, the Supreme Court will hear a case to challenge the legality of this legislation, but even this is questionable. If a detainee is not allowed access to a fair trial or to the evidence against him, how can he bring a legal challenge to a court? The legislation, in anticipation of court challenges like Hamdi and Hamdan, even includes severe restrictions on judicial review over the legislation itself.

The Republicans in Congress have managed, at the behest of Mr. Bush, to draft a bill that all but erases the judicial branch of the government. Time will tell whether this aspect, along with all the others, will withstand legal challenges. If such a challenge comes, it will take time, and meanwhile there is this bill. All of the above is deplorable on its face, indefensible in a nation that prides itself on Constitutional rights, protections and the rule of law.

http://www.truthout.org/cgi-bin/artman/exec/view.cgi/64/22834

...wanna bet similar restrictions find their way into the final version of this thing?

[Kagemusha]

36. Wouldn't shock me if they did that again.

I value my money too much to bet against you on that one.

But, the fat lady hasn't sung yet so maybe some good will come out of this after all.

[LSK]

58. thanks for the info n/t

[Buzz Clik]

27. If this aspect of the bill survives, the world will shift on its axis:

* No retroactive immunity for telecommunications companies that cooperated with the administration’s warrantless surveillance

The phone companies will not take a dive for the administration. If they aren't protected, they will started singing.

Look for this provision to disappear.

[blondeatlast]

37. Seems to me this is the provision that the Left is objecting to, but it's actually a GOOD thing.

I don't think the intent of this provision is well understood.

[WilliamPitt]

38. Indeed. That Times article was a masterpiece of gibberish.

:grr:

[blondeatlast]

46. Why are our very own not getting the telecom provision? I see that as

the biggest stumbling block on our side, so the spin is working very well.

There's even a fresh thread about it; I'm NOT going in.

[OregonBlue]

28. Baltimore Sun has a different take - they think the Dems have been outwitted again.

Spy trouble for Democrats
Party leaders on defensive over new surveillance proposal
By Siobhan Gorman | Sun reporter
October 9, 2007

The law requires the government to submit its procedures to a secret national security court, but it severely limits the court's ability to rule on their legality.

Republicans, he said, would be satisfied with making the Protect America Act permanent, adding that they would have the best chance of success if they can back the Democrats against a deadline, as they did in August.

The GOP strategy is to "run out the clock," he said, adding that Republican Senate leaders and the White House are "100 percent on board" with that plan.

Republicans, the aide said, "don't mind having this fight." He added, "this is Democrat-on-Democrat violence. The hates it. Most of the members hate it, but they also realize that if they don't do it, they can be blamed in the future" for a terrorist attack.

http://www.baltimoresun.com/news/nation/bal-te.surveillance09oct09,0,4108388.story

[blondeatlast]

33. "Conyers: "I'm Proud" of Dem Surveillance Bill" (TPM 10/09) On immunity, below:

12. No Retroactive Immunity. The bill is silent on retroactive immunity because the Administration has refused to provide Congress with documents on the specifics of the President’s warrantless surveillance program. However, the bill does provide prospective immunity for those complying with court orders issued pursuant to this authority.

Not perfect, but it seems this would make it easier for telecoms to testify AGAINST administrations who step over the line, am I right? :shrug:

on edit; link: http://www.tpmmuckraker.com/archives/004411.php

[flyarm]

35. this needs to get on the greatest page..K&R

i have dems emailing me like crazy from my intgernet groups all in a piss storm over the NYTimes article..get this to the greatest please..so people can be more informed..

thanks Will!

fly

[tandot]

39. K & R.

The "liberal" media will find a way to spin that and to give some so-called "Democrats" more opportunity to bash the Dems.

[endarkenment]

40. I'll go with the ACLU on this one: bad and dangerous law. nt.

[WilliamPitt]

43. What is the basis of your opinion?

The ACLU letter is posted somewhere in this thread. I'd like to see the specific text you're speaking of.

[endarkenment]

52. ACLU action campaign

http://www.aclu.org/safefree/general/32104prs20071009.html

ACLU Statement on RESTORE ACT, ACLU Urges Congress to Include Individual Warrants for Americans (10/9/2007)

For Immediate Release
Contact: media@dcacluorg

Washington, DC – Today the Democratic leadership unveiled the RESTORE Act. What follows are the ACLU’s comments on that draft.

The following can be attributed to Caroline Fredrickson, Director of the ACLU’s Washington Legislative Office:


“The ACLU sees one major flaw in the RESTORE Act. As drafted, the RESTORE Act still allows for the US government to collect phone calls and emails from Americans without an individual warrant.

Program warrants - sometimes called basket warrants, sometime called blanket warrants - included in the draft bill are a crucial sticking point. There is no specific target when you use basket warrants, which contradicts the heart of the Fourth Amendment. Essentially, a basket warrant really means no real warrant.

Program warrants are the 21st century version of King George’s heavy-handed intrusions on individual privacy. We would not tolerate allowing government agents to sit in our living rooms recording our personal conversations, so why would we permit it to monitor us remotely and without our knowledge? The Fourth Amendment requires individual warrants if Americans are involved and without them, the RESTORE Act won't pass constitutional muster.”

This bill is better than the so-called Protect America Act: here are the areas where the ACLU has seen real improvement.

Overseen by the court. Re-iterates that FISA is the go-to court

Requires six-month audit and a database to go to Congress for review.

Telecom companies are not granted immunity from illegal activity in this draft of the bill.

The scope of the searching has been narrowed to "foreign affairs intelligence and improvement over a more broad definition in the so-called Protect America Act.


What follows is an explanation of why we oppose the year-long program warrants in the bill.

Baskets, Buckets, and Blankets? What's wrong with these so-called "warrants"?

Called baskets, buckets or blankets, the new warrants created by the Protect America Act, and maintained in some form by the RESTORE Act (Conyers/ Reyes) are most commonly known as "program" or "general" warrants that have been held unconstitutional for violating the Fourth Amendment. They may have a new name this go-around, but they are the same program warrants believed to be used the in the President's illegal spying program after 9/11 and codified in the FISA modernization bill introduced by Rep. Wilson that Democrats opposed in the 109th Congress.

The Fourth Amendment has several requirements before a search or seizure is constitutional -- that a judge is involved, that there is probable cause, that the search or seizure is reasonable and most important for this discussion -- the things searched or seized have to be stated with particularity. Particularity was written into the Fourth Amendment due to past abuses by King George, whereby the government would issue blank warrants that allowed government officials wide discretion to rifle through personal belongings or search people, without particularized suspicion, to look for anything illegal. No description was actually given of the illegal behavior that was being investigated, because the government was on a fishing expedition. This abuse of power was one of the injustices that led to the American Revolution. Statutes and even individual searches and seizures have since been held unconstitutional in the past because they violate the particularity requirement.
The Protect America Act and the RESTORE Act allow the government to issue these broad program warrants that state neither the targets of the search, nor the facilities that will be accessed. They do not describe what is going to be seized, and eventually used, by the government. They are virtually a blank check that only requires the surveillance be directed at people abroad, which may very well be unconstitutional.

The RESTORE Act does not require individualized court orders for anything collected under the new surveillance program. The program can collect any communication as long as one leg of it is overseas, leaving open the distinct possibility--and probability-- that the other leg is here in the U.S. and is an American. If Americans’ communications are swept up by this new, general program warrant, there is no requirement that a court actually review whether those communications are seized in compliance with the Fourth Amendment.
The RESTORE Act, as currently written, allows the Attorney General to negotiate secret guidelines with the secret FISA court about how to use US information, and whether to go back to the court for an individualized warrant to access US communications.

There is no requirement in the RESTORE Act that individualized warrants be issued before the government collects communications to which an American is a party. If a US phone call or email is picked up in these general warrants -- not based on any suspicion of wrongdoing, or even based on a link to terrorism -- they can be saved and used by the government without any court review. The procedures for this court have always been secret and no one, save a few Intelligence Committee members, know how well they work or how they are really implemented. Something so fundamental as whether the government can listen to our phone calls or read our emails should not be left to be decided in secret by a handful of people. These issues have to be written into statute so there is no question about our privacy and so there can be accountability when the rules are broken.
Attempts to find a procedure that gives the government flexibility while respecting the constitutional requirement of particularity have been rejected. It is perfectly reasonable to allow program warrants to collect calls and emails among foreigners, but Americans deserve -- and the constitution requires -- that their communications be treated differently when swept up in the new dragnet.

Even if one believes that the government really can't tell where each end of a communication is in "real time," or at the time of collection, they will be able to eventually. As the Director of National Intelligence testified last month, the heart of these programs is about storing communications and accessing them later. The government should be forced to go back to court to get a particularized warrant that meets Fourth Amendment standards before it can access American communications that have been swept up in these new blanket or general warrants. Just because the program is directed at people overseas, it doesn't mean that the Fourth Amendment rights of Americans who have contact with them have been respected. There has not been a surveillance program since FISA was created that allows massive, untargeted collection of communications that will knowingly pick up US communications on US soil without any suspicion of wrongdoing. This creates novel and fundamental Fourth Amendment problems that Congress should seek to avoid instead of sanctioning. Going back to the court may be inconvenient, but doing so is just a matter or resources and protecting our Fourth Amendment rights is worth the cost.


=====

But you could be right, the nefarious forces of darkness could be conspiring to make our brave Democratic leadership look like a bunch of shifty fucknuts. I'll stick with the ACLU.

[blondeatlast]

53. WP posted that upthread and asked you specifically what

you objected to.

He posted it almost 2 hours ago.

[endarkenment]

54. Uh - did you read it?

What it said: 'program warrants are fascist bullshit' (my paraphrasing for the reading impaired.) Which part of that did you not understand?

Will ought to do his homework before posting.

[blondeatlast]

55. I don't need paraphrasing. I'd like a reasoned critique.

Thanks, I don't need the same old same old, so I'll move on.

[endarkenment]

57. Why would I do better than those smart folks at the ACLU?

They give a detailed analysis of what is right and what is wrong with the current bill and why they oppose it. Either you can't read or you can't be bothered to read or you are just being argumentative. I've pointed you at the ACLU's analysis, I've summed up their objections in a sound byte, and you appear to not be interested in either. Should I rewrite the ACLU's essay in pig latin? Would that help?

As for Will Pitt: he ought to have done his homework.

[WilliamPitt]

59. Funny.

I've been doing my "homework" on this for the better part of the day. I found the ACLU letter reasoned, balanced and excellently argued...but it was focused on that one area of concern alone - validly so - and offered little serious complaint about the majority of the bill. In fact, the letter specifically praised most of the bill:

This bill is better than the so-called Protect America Act: here are the areas where the ACLU has seen real improvement.

· Overseen by the court. Re-iterates that FISA is the go-to court

· Requires six-month audit and a database to go to Congress for review.

· Telecom companies are not granted immunity from illegal activity in this draft of the bill.

· The scope of the searching has been narrowed to “foreign affairs intelligence and improvement over a more broad definition in the so-called Protect America Act.

Their letter failed to note that the bill also requires the Justice Department to reveal the details of all electronic surveillance conducted without court orders since 9/11.

That's pretty damned huge.

So is getting back FISA court oversight...And, yeah, that blocks Cheney from ordering NSA to tap all the phones of all the staffers on all the Democratic campaigns, so they can record and transcribe strategy tele-conferences, etc...and I think the Bush administration's desire to do just that (and more) was the main reason why they've been trying to circumvent the FISA court.

Some more background:

Conyers: "I'm Proud" of Dem Surveillance Bill
http://www.tpmmuckraker.com/archives/004411.php

Good Kos post: http://www.dailykos.com/story/2007/10/9/105935/112

More links from ThinkProgress:
http://thinkprogress.org/2007/10/09/house-introduces-new-fisa-legislation/

Summary of the bill:
http://thinkprogress.org/restore-act-summary/

The ACLU is quite correct. But this bill isn't finished yet; it must be reconciled with a Senate version that hasn't been written down yet, which gives the ACLU and everyone else time to make the case against vague open-ended warrant requirements.

And the rest of the bill is good.

[Tierra_y_Libertad]

41. Politics as usual. Next question?

[WilliamPitt]

44. That's just a shortcut to thinking.

Seriously.

Do you believe our basic rights need to be repaired and re-established?

This is how that gets done.

And the process itself is indeed politics as usual...that is moving towards propping up your rights and mine instead of ripping them down...and that hasn't been seen in these parts for a long, long time.

The cynicism in your post above is exactly what caused so many people here to take that Judy-Miller-Times assbag of an article at face value...and everyone who did that got hosed.

Politics as usual is the battlefield we're on. Like it, lump it, but it'll still be there in the morning.

:toast:

[Tierra_y_Libertad]

51. It's a shortcut to thinking differently than you do.

And, after many years of following, and/or, being involved in politics, you can bet your ass I'm a cynic.

"Politics as usual" is the the battleground the politicians are on and perpetuate.

You, apparently, the system as in need of reform. I see the system itself as hopelessly corrupt and in need of change.

Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one. -
Thomas Paine

[The Backlash Cometh]

48. This article may be confusing everyone:

http://www.nytimes.com/2007/10/09/washington/09nsa.html?_r=2&hp&oref=slogin&oref=slogin

[blondeatlast]

56. Indeed it is--was it deliberate, I wonder? nt

[Pirate Smile]

50. NYT article was confusing. Hopefully, people will realize that and wait to see what happens.

The House Bill would be a big improvement.

[bread_and_roses]

60. are people here not reading the ACLU statement on why this is BAD?

Not to be confontational, but which would any reasonable person trust more to protect our Constitutional liberties these days- the ACLU or the Congressional Democrats? Besides, if you read it, what the ACLU says makes perfect sense.

I'll trust the ACLU on this.

[mzmolly]

62. This is all I need to read.

"Restores court oversight ..."

What am I missing? Nothing.

[BuyingThyme]

63. It takes oversight responsibilities away from Congress and gives them to DOJ.

Brilliant!

[WilliamPitt]

64. How so?

Honest question. I've been chasing this around the internet all day, and that's an aspect I haven't seen discussed. Do you have a link?

Thanks.

[BuyingThyme]

66. I got it from radio today... I think the Ed Schultz show.

It may have been the Kucinich interview.

The DOJ reviews the program and sends summary reports to Congress so they can ignore them and thus claim to have clean hands. It's a compromise (of the Constitution).

This is the drift I got. I may be totally wrong.

[WilliamPitt]

67. Read the stuff posted above.

The ACLU complaints are very valid, but there's a lot of good in this bill. Like I said, the DoJ takeover is new to me. That was something from August, when they passed the assbag FISA bill that makes this one so necessary; Gonzo and McConnell were given oversight power over their own surveillance programs, which was terrifying...but the re-establishment of required FISA court oversight on domestic warrants makes the deal a fair bit safer...if it gets through conferencing intact, that is.

[BuyingThyme]

68. You may be hearing crosstalk in regards to the Senate and House versions,

(which are different to the extreme, as even Pelosi admits).

EDIT 4 fukup.

[liberalla]

85. Per Caroline Fredrickson (ACLU) interview with Randi Rhodes:

She said the problem with RESTORE is that it still allows 'blanket' warrants to be used, which does not protect our Fourth Amendment rights.

She said a new bill by Rush Holt was going to be introduced and that they were going to be recommending that bill instead of RESTORE.

The Rush Holt bill specifies and requires individual warrants are necessary when spying on U.S. citizens in the United States.

http://action.aclu.org/site/PageServer?pagename=101007_fisa_flood

The interview was Tuesday in the second half of the second hour (if I remember correctly)...

[mmonk]

65. Nothing. I doubt the Justice Department is going to comply though.

The mistakes occurred before this measure.

[McCamy Taylor]

70. I object to Senate Democrat talk about immunity for AT&T and Verizon.

This should not even be under discussion.

[blondeatlast]

71. See post 27 and subthread. nt

[IndyOp]

72. Thom Hartmann talked about this today - believes Progressive Dems got a lot of what they wanted

Coverage begins at the top of the second hour of his show. The show plays over and over 24/7 here:
http://whiterosesociety.org/Hartmann.pls

He believes it is pretty solid legislation - and is worried that it is being put forward just to throw a bone to the base and Pelosi may not push it as hard as necessary to make sure it passes.

Thom suggests EVERYONE CALL Congress within the next 48 hours to ask them to stand firm on FISA.

[GeorgeGist]

73. 'Triangulation'

is like magic. Believing it's real, is just a delusion.

This message brought to you by your friends at the DLC.

[Warren Stupidity]

74. Because there is no need for any new law.

And this law, as the ACLU has noted, is deeply flawed. If we had an opposition party they would let this crap expire and press criminal investigations into the violations of existing law committed by the cabal in the white house. But we don't have an opposition party, and we keep looking for pearls inside the turds. It's a turd. No pearls.

[L. Coyote]

76. A possible false assumption in discourse on FISA. Was ALL communication illegally captured?

Some of the discourse about the blanket warrants seems to assume such was the illegal wiretap violation. We only know there was an illegal spying program, not the details.

I was informed by someone I consider credible and privileged to insider IT info, that ALL communications were routed overseas to circumvent US Law and the Constitution. Once the traffic passes outside the US territory, it is no longer protected by our laws. The illegality was in the routering of ALL communications.

We should be careful about assumption minimizing Bush's illegality without having details.

Beware those who fashion the debate to minimize the crime with assumptions not based on known facts.

[Oilwellian]

78. Update on TPM - Behind The Scenes, Liberals Ponder Supporting FISA Legislation

Things are in flux tonight behind the scenes as House Dems struggle to decide whether to support the FISA legislation that two House committees unveiled today. So here's what we're able to gather about the state of play right now.

The entire House leadership is supporting the bill, confirms Stacey Bernards, a spokesperson for House Dem leader Steny Hoyer. But where are the House liberals? They are the key group to watch, because their mini-revolt against the legislation last week was taken as a sign that there would be heavy pressure on the House leadership not to capitulate by giving the administration too much power over wiretapping.

So where are they? According to House Dem aides, House liberals appear to be leaning in the direction of supporting the legislation -- though nothing is at all certain. Earlier today, an aide says, an internal count of House members showed very strong opposition among liberals to the bill unveiled today. But later in the day, some liberals appeared to be privately concluding that many of their demands -- which they unveiled amid last week's revolt in hopes of influencing the process -- had been met, this aide says.

Indeed, one key House liberal who'd taken a stand against earlier manifestations of the measure -- Jerrold Nadler -- announced today that he would support the bill. In a statement his office claimed the bill "reinforces the role of the Foreign Intelligence Surveillance Court in regards to electronic surveillance programs," and "requires that FISA warrants are required when targeting domestic communications," though it doesn't require them for foreign ones.

Still, things are in flux, and the aide cautions that a key sticking point for liberals remains -- the measure's embrace of "basket" wiretapping. House liberals are meeting behind closed doors as we speak to debate what their stance should be on the legislation. The House liberals' efforts are being coordinated by Bill Goold, an aide to Rep. Lynne Woolsey (D-CA), one of the key House libs behind last week's mini-revolt.

What's more, some voices on the left are strongly urging House liberals to hold the line on "basket" warrants. As Matt Stoller noted over at Open Left, the ACLU issued a statement today blasting the legislation over this provision, saying that it is "a crucial sticking point. There is no specific target when you use basket warrants, which contradicts the heart of the Fourth Amendment. Essentially, a basket warrant really means no real warrant." A spokesman for Rep. Nadler was unable to immediately say why he backed the legislation despite this feature.

I'm told that House liberals are privately discussing refusing to yield on this point, but it won't be clear how willing they are to hold the line on it until some internal decisions are reached and the House libs start taking public positions in earnest. We'll know more in the A.M.

http://tpmelectioncentral.com/2007/10/behind_scenes_liberals_ponder_supporting_fisa_legislation.php

[Theduckno2]

80. Thanks for posting this. I must admit the NY Times article had me going.

Though my comment on the article was not vitriolic, I sadly accepted at face value much of what you called gibberish in the NY Times article.

As of now I view this pending legislation positively, although the issue of blanket warrants is quite unsettling. I also think it is important not to grant retroactive immunity to the telecoms but until there is actual legislation pending in the Senate, I find that my attentions will be focused on other issues.

[malaise]

81. Watch Bruce Fein and KO

http://www.msnbc.msn.com/id/3036677/

They've opted for spin over spine.

[L. Coyote]

82. TPM: McConnell Not So Hot on Dem FISA Bill

McConnell Not So Hot on Dem FISA Bill
By Spencer Ackerman - Oct 10, 2007
http://www.tpmmuckraker.com/archives/004421.php

The ACLU has its differences, you might say, with Admiral Mike McConnell. Its website, for instance, features a page (http://www.aclu.org/safefree/general/31879prs20070920.html) with the sub-headline, "McConnell Tries to Scare America in to Giving Up Fourth Amendment." But they do share one thing in common: neither much likes the Democratic RESTORE Act.

To be clear, the ACLU's opposition is intense (http://www.aclu.org/safefree/general/32104prs20071009.html), and centered around the so-called "umbrella warrants," whereby the director of national intelligence and the attorney general submit an annual explanation to the FISA Court outlining why their surveillance methods target non-U.S. persons "reasonably believed to be outside the United States... for the purpose of collecting foreign intelligence information." McConnell's concerns, it's safe to say, don't center around whether umbrella authorizations violate the Fourth Amendment. Rather, he's concerned about the bill not providing retroactive immunity to telecommunications companies who cooperated with warrantless surveillance requests from 2001 to 2007. He's also more tentative than the ACLU, leaving himself room to negotiate with Congressional Democrats.

From McConnell spokesman Ross Feinstein: .....

========================
REC this (now on lunch break):
Conyers' Judiciary Hearing on FISA!!!! On NOW on C-SPAN 2!!!
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x2012558

[L. Coyote]

83. TPM: Hoyer: Info for granting U.S. telecommunications companies retroactive legal immunity

Hoyer: Info for Immunity
By Paul Kiel - Oct 9, 2007
http://tpmmuckraker.com/

From the AP: http://talkingpointsmemo.com/news/2007/10/dems_opens_door_for_immunity_i.php

A top Democratic leader opened the door Tuesday to granting U.S. telecommunications companies retroactive legal immunity for helping the government conduct electronic surveillance without court orders, but said the Bush administration must first detail what those companies did.

House Majority Leader Steny Hoyer, D-Md., said providing the immunity will likely be the price of getting President Bush to sign into law new legislation extending the government's surveillance authority. About 40 pending lawsuits name telecommunications companies for alleged violations of wiretapping laws. .................

[Name removed]

84. Deleted message

Message removed by moderator. Click here to review the message board rules.

[jgraz]

86. This is the House bill. People are worried about the Senate version

That's what's causing all the squawking on the blogosphere. Many reports are surfacing that the Senate is restoring the immunity clause.