Congress Rewrites FISA

Update: 7.20 pm Pacific: After procedural maneuvering by Sen. Russ Feingold (D-WI) and Sen. Chris Dodd (D-CT) and grassroots mobilization, Senate leadership delayed the vote on FISA until after the 4th of July recess.

The Democratic Congress has followed the lead of the Republican White House in rewriting the 1978 Foreign Intelligence Surveillance Act, enabling the "most comprehensive overhaul of American surveillance law since the Watergate era."

Last week, the House capitulated and endorsed the provision providing immunity for telecommunication firms that participated in the Bush Administration's warrantless wiretapping program. Wednesday, the Senate voted 80-15-5 to invoke cloture (begin debate), in preparation for a final vote as soon as Thursday. (tip)

FISA was enacted almost 30 years ago in reaction to government abuses of electronic surveillance, ostensibly for national security. Back in January, about 6-in-10 Americans "reject[ed] immunity for phone companies that may have violated the law by selling customers’ private information to the government, preferring to let courts decide the outcome of any cases."

Public opinion be damned. Might political campaign contributions be contributory? Comparing the March (reject immunity) and June (endorse immunity) votes in the House of Representatives, we find that Verizon, AT&T, and Sprint gave significantly more PAC money to those who changed their votes:

• Contributions averaged $8,359 to each Democrat who changed position to support immunity for telcoms (94 Democrats)
• Contributions averaged $4,987 to each Democrat who remained opposed to immunity for Telcos (116 Democrats)

Also back in January, most American voters (63%) believed that the government should be required to get a warrant before tapping conversations of US citizens; they probably believe this bill does that, since most of the headline attention has focused on the telecom immunity provision. (Mea culpa.) Here are some other things you should know -- but won't get from TV news and are unlikely to get from press reports:

• The 1978 FISA allowed the National Security Agency to conduct a wiretap for 72 hours before getting FISA Court approval. The re-write extends this grace period to a week, 168 hours; gives the government the ok to continue wiretaps during appeals; and allows the government to keep all data even if the FISA Court rejects the wiretap! (From Kevin Drum)
  
  
• The new act provides wholesale approval of bulk monitoring of electronic communications such as email and phone calls; "the NSA appears to be doing ... very large scale data mining on virtually every phone call and email between the United States and overseas, looking for patterns that fit a profile of some kind." These are not targeted foreign-to-foreign communications and thus can ensnare citizens without cause; the targets are picked by software algorithms, not using legal concepts like probable cause. "For all practical purposes, then, the decision about which U.S. citizens to spy on is being vested in a small group of technicians operating in secret and creating criteria that virtually no one else understands." (From Kevin Drum)
  
  
• There is limited judicial review of data collection programs. "The role of judges is limited to ascertaining whether the Attorney General has completed a certification promising that either he has followed the law, or that he will follow the law soon. If the Attorney General cannot meet even this spectacularly low bar, the bill gives the government time to amend and to re-file the certificate... This is a radical break from the FISA regime created in 1978." (From The Nation)
  
  
• "From 2001 to 2007, the NSA engaged in a secret program that was a straightforward violation of America's wiretapping laws... the new law moves the goal posts, taking illegal things the administration was doing and making them legal." (From Slate)
  
  
• "The FISA reauthorization bill is an outrage because it, much like the original FISA, does not hold the executive branch enforceably accountable for its own abuses of power." (From Civil Liberty @ About.com)

Leadership Positions
Both presumptive presidential candidates -- Sen. John McCain and Sen. Barack Obama -- support the bill, although neither were available for the cloture vote. Glenn Greenwald examines Obama's position on this bill with his campaign rhetoric about FISA in 2007 and 2008; first he said he'd filibuster any bill with an immunity position, now he says he'll vote for this one.

Sen. Chris Dodd (D-CT) asserts, "If passed, this legislation will ratify a domestic spying regime that has already concentrated far too much unaccountable power in the president's hands and will place the telecommunications companies above the law." In addition, "We're closing the door, never to know why [the Bush wireless wiretapping program] happened, who ordered it, why did they avoid [the courts], what was behind their thinking."

Leaders in the Judiciary committees -- Sen. Pat Leahy (D-VT), chair of the Senate Judiciary Committee, and Rep. Jerrold Nadler (D-NY), chair of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties -- remain opposed to the current bill. Of the three Democrats who serve on both Senate Judiciary and Intelligence Committees -- Russ Feingold (WI), Dianne Feinstein (CA) and Sheldon Whitehouse (RI) -- only Feingold has held fast in opposition. (Remarks opposing bill; includes video)

The 15 voting against cloture:

• Biden (D-DE)
• Boxer (D-CA)
• Brown (D-OH)
• Cantwell (D-WA)
• Dodd (D-CT)
• Durbin (D-IL)
• Feingold (D-WI)
• Harkin (D-IA)
• Kerry (D-MA)
• Lautenberg (D-NJ)
• Leahy (D-VT)
• Menendez (D-NJ)
• Sanders (I-VT)
• Schumer (D-NY)
• Wyden (D-OR)

Not voting:

• Byrd (D-WV)
• Clinton (D-NY)
• Kennedy (D-MA)
• McCain (R-AZ)
• Obama (D-IL)

Editorials:
:: Congress gives in on wiretapping, San Fransicso Chronicle
:: Congress Makes a Bad Deal on Wiretapping, New York Times

On the web: Color of Change and Blue America sponsor a robo-call targeting constituents of Rep. Steny Hoyer, who was the Democrat leader pushing telecomm immunity; YouTube

Related:
:: What is cloture?
:: What is FISA?
:: What is the wiretapping issue?
:: What happened in August to make warrantless wiretaps temporarily legal?
:: FISA Reports to Congress, 1979-2006
:: Getting To Know Your Government: The Senate