FISA compromise achieved

posted at 2:45 pm on June 19, 2008 by Ed Morrissey

Congress will pass long-delayed FISA reform legislation as early as tomorrow after key members of the House reached a compromise on a series of issues.  The compromise has the backing of House leadership, the White House, and the telecommunications companies fearful of an endless series of lawsuits from their earlier cooperation with the NSA.  This bill will permanently update FISA legislation to encompass what became known as the Terrorist Surveillance Program, as well as modernize it to eliminate the archaic language that required warrants for international communications:

After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders have agreed to a bipartisan deal that would be the most sweeping rewrite of spy powers in three decades. The House is likely to vote on the measure Friday, House aides said.

Removing the final barrier to action on the measure, which has been hashed out in recent weeks by senior lawmakers in both parties, House Democratic leaders decided to allow a vote on the bill, despite the opposition of many in their party.

The new agreement broadens the authority to spy on people in the U.S. and provides conditional legal immunity to companies that helped the government eavesdrop after the 2001 terrorist attacks, according to congressional aides in both parties.

The deal, if adopted, would bring the spy activities of a controversial National Security Agency surveillance program permanently under the law. That would allow the government, in certain circumstances, to eavesdrop on U.S. citizens without a specific warrant. It would also expand government spy powers to monitor communications between the U.S. and overseas to collect intelligence on topics beyond terrorism.

This deal does not include explicit immunity for the telecoms.  It does, however, provide a standard by which a federal court can determine whether each telecom qualifies for the immunity provisions in the bill by verifying that they received requests and/or approvals from federal agencies that assured the telecoms of the legality of their cooperation.  Although it requires a court proceeding to grant immunity, it establishes a clear presumption in favor of the telecoms.

The compromise will make permanent the changes that Congress temporarily applied last summer.  That means the FISA reform issue will be settled once and for all, and the legal tripwire of “American switches” will no longer remain extant.  Given that most of the world’s communications pass through American switches regardless of whether either end of them terminate in the US, that will make it much easier for the NSA to nimbly follow terrorist communications without the retarding effect of warrant applications on each new pathway.

Expect the netroots to go crazy this afternoon.  They managed to stall the compromise during the Democratic primaries and provided a small boomlet to Chris Dodd’s campaign — which remained almost too small to detect.  They will scream about the Democratic collapse on this issue, when the FISA changes have long had bipartisan support, as did telecom immunity in the Senate.   The loss on this issue will create a firestorm of rage that will soon subside to sharp bitterness.

For the rest of us, the agreement came far too late, but yet in time to keep the last of the NSA’s working orders from expiring.  We may never know how much intelligence got lost from February to now — and we’d better hope we never have to find out.


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Let’s play “Caption that picture!”

Nancy: “This changes nothing. I’m only smiling because the botox hasn’t worn off yet.”

Mitch: “Stuff it, you pointless bitch!”

CurtZHP on June 19, 2008 at 2:47 PM

Great.

Can anyone assess what the damage to our national security is because they have taken so long?

Dr.Cwac.Cwac on June 19, 2008 at 2:47 PM

Libs want Steny Hoyers scalp for this. Its fun to watch the left go ballistic

William Amos on June 19, 2008 at 2:48 PM

Finally!

Maquis on June 19, 2008 at 2:49 PM

Once again, the Dems have abandoned their base!

HELLO!!!!!!!! DEMS!!!!!!!!!!!! When are you going to wake up????

Dread Pirate Roberts VI on June 19, 2008 at 2:50 PM

Thought experiment I’m engaging in more and more often: What would the outcome have been with Obama in the WH?

DrSteve on June 19, 2008 at 2:51 PM

Thank God.

amerpundit on June 19, 2008 at 2:51 PM

Now, wait for the inevitable Court challenges.

ACLU in 5….4….3…

Romeo13 on June 19, 2008 at 2:53 PM

Again I ask, do we even want to take back the majority?

We’re getting pretty much whatever the Republicans want anyway, and the democrat party looks more weak and pitiful every year.

Now, if we WERE to take the majority, it would be a majority of RINOs anyway, so any pro-active legislation they would propose can be expected to be big-government & amnesty.

Seems to me conservatives have a pretty good deal right where things stand.

It’s a win-win!

jeff_from_mpls on June 19, 2008 at 2:59 PM

Thank you real-republicans and blue-dog-democrats. We will keep you in office.

Next: anyone who votes against drilling here and now, you will be thrown out. Take heed, the american people are pissed and I really don’t think they’re going to take it anymore.

JustTruth101 on June 19, 2008 at 2:59 PM

It’s a win-win!

jeff_from_mpls on June 19, 2008 at 2:59 PM

Would you rather initiate, lead, and be in charge/accountable, than oppose and follow?

Entelechy on June 19, 2008 at 3:01 PM

I should have added that the latter is much easier.

Entelechy on June 19, 2008 at 3:01 PM

Woohoo less rights…warrants are passe anyway…and you jack@sses are begging for it. Wonder what this board would have looked like when Clinton was trying to pass his wiretapping measures? You guys were at least right once, albeit a decade ago.

LevStrauss on June 19, 2008 at 3:04 PM

Would you rather initiate, lead, and be in charge/accountable, than oppose and follow?

Entelechy on June 19, 2008 at 3:01 PM

You know the answer that most of the MDS crowd will give.

SURRENDER ’08

Squid Shark on June 19, 2008 at 3:08 PM

Some commenters at Kos are angry with Obama for not coming out recently against the FISA compromise we see today.

amerpundit on June 19, 2008 at 3:11 PM

Whoa whoa… wait.. WTF is this?!

That would allow the government, in certain circumstances, to eavesdrop on U.S. citizens without a specific warrant.

Does this mean what it used to mean (you could eavesdrop on a US citizen if they were communicating outside the US) or are they referring to watching internet packets or just recording wireless conversations? Or does this mean they can now wiretap people WHOLLY DOMESTICALLY without a warrant? Which IS… completely… unconstitutional.

Skywise on June 19, 2008 at 3:12 PM

amerpundit on June 19, 2008 at 3:11 PM

I hope he does.

Squid Shark on June 19, 2008 at 3:13 PM

I heard Congressman David Dreier (one of the good guys) speak about this on the Dennis Miller Show. He harped on this for quite a while in Congress so we can all breathe out a sigh of relief. However, it inexplicably took 4 months for these people to collectively do something. However, they were in a rush when it came to their cafeteria food. Where are the priorities?

jencab on June 19, 2008 at 3:13 PM

Wonder what this board would have looked like when Clinton was trying to pass his wiretapping measures?

LevStrauss on June 19, 2008 at 3:04 PM

I probably would’ve opposed it. But I was probably also asleep, like much of America, and in a pre-9/11 mindset.

amerpundit on June 19, 2008 at 3:13 PM

Skywise on June 19, 2008 at 3:12 PM

Unconstitutional how, using your mythical right to privacy which does not exist?

Read Griswold v Conneticut and tell me that the justices werent tokin up when they wrote it.

Squid Shark on June 19, 2008 at 3:15 PM

NSA,Surrender in Iraq,Impeachment of Bush/Cheney,Haliburton…..

The list of failures by the left to undermine Bush and the Iraq war will follow the democrats and their liberal base through history.

The liberal sheep will still send in millions of dollars and votes based on empty,ignorant rhetoric just like they did in 06.

This is why people like Micheal Moore and hollywood are their heroes,they care more about having their opinions and
ideology confirmed through words and movies than by truth and actual results.

Baxter Greene on June 19, 2008 at 3:16 PM

Wonder what this board would have looked like when Clinton was trying to pass his wiretapping measures?

I honestly wonder what you would have written about it.

DrSteve on June 19, 2008 at 3:18 PM

I probably would’ve opposed it. But I was probably also asleep, like much of America, and in a pre-9/11 mindset.

amerpundit on June 19, 2008 at 3:13 PM

pre-9/11 mindset = The idea that the Fourth Amendment means something.

post-9/11 mindset = Blind trust in the government and its justifications for expanded powers. Not like “the retarding effect of warrant applications on each new pathway” could not be solved by more staff, but we know the current government is just so miserly with our money.

LevStrauss on June 19, 2008 at 3:20 PM

Does this mean what it used to mean (you could eavesdrop on a US citizen if they were communicating outside the US) or are they referring to watching internet packets or just recording wireless conversations? Or does this mean they can now wiretap people WHOLLY DOMESTICALLY without a warrant?

Skywise on June 19, 2008 at 3:12 PM


The NYT
:

It would allow intelligence officials to use broad warrants to eavesdrop on foreign targets, and to conduct emergency wiretaps on American targets without warrants if it is determined that important national security information would be lost otherwise.

amerpundit on June 19, 2008 at 3:20 PM

We may never know how much intelligence got lost from February to now — and we’d better hope we never have to find out.

You really think that intel has gone missing? I doubt it. It may be four months-worth of inadmissable intel, but I bet it exists ‘under the table’.

Or are you suggesting we’re such good boys & girls we’d never break the law?

LimeyGeek on June 19, 2008 at 3:20 PM

How is it, you supposed ideological conservatives; can be so enthusiastic about allowing the federal government and its’ corporate hirelings to trample with impunity upon both your individual and community’s civil rights?

Boggles this olde soldier’s mind!

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” Benjamin Franklin, circa 1759

J_Gocht on June 19, 2008 at 3:22 PM

post-9/11 mindset = Blind trust in the government and its justifications for expanded powers.

LevStrauss on June 19, 2008 at 3:20 PM

Uh, no. I oppose expanding government overall, but I understand that there are emergency cases (which this bill allows) where the amount of time needed to get a warrant would lose information needed to stop an attack.

amerpundit on June 19, 2008 at 3:22 PM

I honestly wonder what you would have written about it.

DrSteve on June 19, 2008 at 3:18 PM

Well I remember it vividly because I so vehemently opposed it. It was going to be used on the militia types and the gun rights advocates that became popular when Clinton tried to gun grab. Assuming that there aren’t conservatives that oppose this authoritarian garbage does make an ass out of you. Do you even understand the reasoning behind a philosophy of limited government with separated powers? You answer insinuates that you don’t.

LevStrauss on June 19, 2008 at 3:23 PM

Uh, no. I oppose expanding government overall, but I understand that there are emergency cases (which this bill allows) where the amount of time needed to get a warrant would lose information needed to stop an attack.

amerpundit on June 19, 2008 at 3:22 PM

FISA always had an emergency case where retroactive warrants could be attained.

LevStrauss on June 19, 2008 at 3:24 PM

Unconstitutional how, using your mythical right to privacy which does not exist?

No… a little goofy law known as the 4th amendment.

All international communications have, for the most part, traditionally been declared not covered by the constitution (which is why we can spy internationally without violating law) and international calls to domestic persons have been typically considered mostly covered.

Domestic WIRED communications (which can’t be considered to be using “public” airwaves) or planting microphones inside a person’s house have ALWAYS been constitutionally protected. If the law has been written to infinge on that then I have a major issue with it. If not then I don’t.

Skywise on June 19, 2008 at 3:24 PM

FISA always had an emergency case where retroactive warrants could be attained.

LevStrauss on June 19, 2008 at 3:24 PM

Then this new legislation really shouldn’t bother you. Even the NYT writes:

“to conduct emergency wiretaps on American targets without warrants if it is determined that important national security information would be lost otherwise.”

amerpundit on June 19, 2008 at 3:26 PM

Assuming that there aren’t conservatives that oppose this authoritarian garbage does make an ass out of you. Do you even understand the reasoning behind a philosophy of limited government with separated powers? You answer insinuates that you don’t.

You’re not entitled to a single one of those inferences based on what I wrote.

DrSteve on June 19, 2008 at 3:30 PM

Then this new legislation really shouldn’t bother you. Even the NYT writes:

“to conduct emergency wiretaps on American targets without warrants if it is determined that important national security information would be lost otherwise.”

amerpundit on June 19, 2008 at 3:26 PM

Oh, snap.

Darksean on June 19, 2008 at 3:31 PM

I happen to think that, notwithstanding required updates for changes in technology, FISA should have been the preferred framework.

I think the difference in the Clinton case was that the potential conflict between FISA and the President’s Article II powers is in slightly higher relief now. Don’t leap to conclusions about what I think of how that tension is resolved, either.

My comment had more to do with people who like to position themselves as transcendently principled in a particularly obnoxious sort of way.

DrSteve on June 19, 2008 at 3:36 PM

Oops, that should read-

international calls to domestic persons have been typically considered NOT covered. (by the 4th amendment… it’s legal)

I’m of the firm belief that if, domestically, we really REALLY had an issue with national security and couldn’t get a warrant then the wiretapping would be done… one way or another. Codifying it in law is akin to the speed limit on the highway… 55 = 60mph, 70 = 75 or 79. If you give the enforcement agencies the ability to wiretap without a warrant based on their gut feeling without any pretense of a cost then you’re going to get increased abuses.

Skywise on June 19, 2008 at 3:40 PM

It does, however, provide a standard by which a federal court can determine whether each telecom qualifies for the immunity provisions in the bill by verifying that they received requests and/or approvals from federal agencies that assured the telecoms of the legality of their cooperation.

That is de facto immunity. Of course the government said their requests were legal. They were lying to get what they wanted. The telecom companies knew they were lying. They know the law. It’s clear on this point. So the question posed here is whether or not telecoms should get retroactive immunity for actions they performed in bad faith (i.e. knowing they were illegal) but with “patriotic intentions.” I say no. The law is the law, and they helped the government break it. The road to tyranny is paved with patriotic intentions. Yes, FISA should be amended so that foreign-to-foreign calls that route through the U.S. can be intercepted — immunity for law breakers isn’t required to do that. Had immunity been stripped out, we wouldn’t have had this “intelligence gap.” To people who opposed immunity, the Constitution and the rule of law was more important than our intelligence capabilities. To people who supported immunity and bundled it, giving special favors to the their telecom friends was more important than our intelligence capabilities. You tell me which side has the moral high ground.

Mark Jaquith on June 19, 2008 at 3:40 PM

My gleeful conservative e-posters…do you understand what precisely constitutes domestic or international telephone voice or data and email communications?

More importantly does the gov-mint know? If they do; do they give a hot damn about your personal freedom and individual rights?

A phone user places a call via a landline to the local CO [central office], to space satellite, to digital land router, to satellite, to digital land router to analog landline and finally to another personal phone.

How about you internet phone users? Your calls may indeed be routed overseas via [best route sorting algorithms’] and back to the US before reaching your neighbor two blocks down the street, just as the landline call I illustrated above.

Best of luck…SUCKERS!

J_Gocht on June 19, 2008 at 3:45 PM

You’re not entitled to a single one of those inferences based on what I wrote.

DrSteve on June 19, 2008 at 3:30 PM

Well then please expand on your first statement. If you were insinuating that I was a liberal you most certainly deserved it. The authoritarian streak that has clouded the “conservative” wing of the Republican Party is very insulting and obnoxious to me.

LevStrauss on June 19, 2008 at 3:49 PM

The Times story is too vague to make any judgements on the merits of the new law.

That would allow the government, in certain circumstances, to eavesdrop on U.S. citizens without a specific warrant.

Depending on the “certain circumstances”, that may be a good thing or a bad thing.

flenser on June 19, 2008 at 3:51 PM

There are some people who really deep inside want for a king, a strong leader that can direct their weak minds. This country itself has become one big overzealous condo association where people seem to take more pleasure in taking someone elses rights than protecting their own and their fellow countrymen.

LevStrauss on June 19, 2008 at 3:53 PM

My gleeful conservative e-posters…do you understand what precisely constitutes domestic or international telephone voice or data and email communications?

I’ve always assumed that any email I send, and any comment I post on a blog, is quickly traceable back to me by the government if they wish.

Now, there is an argument to be made that this should not be the case. But it’s wrong to assume that this new bill alters the reality of what government does.

Anyone who does not want their email read by third parties should look into PGP. Just be aware that PGPing your correspondence will itself attract attention.

flenser on June 19, 2008 at 3:57 PM

I recently posted in another thread…

First they put away the dealers,
keep our kids safe and off the street.
Then they put away the prostitutes,
keep married men cloistered at home.
Then they shooed away the bums,
then they beat and bashed the queers,
turned away asylum-seekers,
fed us suspicions and fears.
We didn’t raise our voice,
we didn’t make a fuss.
It’s funny there was no one left to notice
when they came for us.
War on Errorism

J_Gocht on June 19, 2008 at 4:01 PM

About time you worthless, pathetic excuse for a bicameral, legislative body. If you don’t talk to terrorists you should have nothing to worry about. If you are a douchebag, terrorist talker, I want my governement to take you down and take you down hard.

Simonsez on June 19, 2008 at 4:01 PM

flenser on June 19, 2008 at 3:57 P

My dear flenser, I, appreciate your thoughts.

Your Internet Service Provider [ISP] is required by law to keep records of your communications.

Here’s the rub olde boy, the gov-mint doesn’t get access to those records without an appropriate warrant from a court of law.

Do you get my drift… Rule-of-law, my man!
Or don’t you give a good hot-damn?

J_Gocht on June 19, 2008 at 4:17 PM

LevStrauss on June 19, 2008 at 3:53 PM

Question here L_S…
Conservative; I know that you are!

Do “Dittoheads” fall helplessly into this catagory?
Just asking…? :)

J_Gocht on June 19, 2008 at 4:57 PM

SKELETOR - God I hate republicans. It’s like they actually care about the safety and security of this chit-hole country. They’re all a bunch of little ass-kissers. oooopppps – sorry – I didn’t realize my mic was still on. burp.

ENGLEBERT HUMPMYDINGLE – What the hell is that smell?

Griz on June 19, 2008 at 5:09 PM

Wait! didn’t the Dems that won in ’06 all run on cut and run? Why haven’t they cut and run? On page A21 (not pulling that out of the air) in the NYT, an article today says Congress has funded the War in Iraq through the end of Bush’s term, with no provisions for early withdrawl! HURRAH! Page A21…sheesh!

kirkill on June 19, 2008 at 5:48 PM

“…It’s clear on this point. So the question posed here is whether or not telecoms should get retroactive immunity for actions they performed in bad faith (i.e. knowing they were illegal) but with “patriotic intentions.” I say no. The law is the law, and they helped the government break it. The road to tyranny is paved with patriotic intentions. Yes, FISA should be amended so that foreign-to-foreign calls that route through the U.S. can be intercepted — immunity for law breakers isn’t required to do that. Had immunity been stripped out, we wouldn’t have had this “intelligence gap.” To people who opposed immunity, the Constitution and the rule of law was more important than our intelligence capabilities. To people who supported immunity and bundled it, giving special favors to the their telecom friends was more important than our intelligence capabilities. You tell me which side has the moral high ground.
Mark Jaquith on June 19, 2008 at 3:40 PM

Thank you!

My very fine M_J…!

J_Gocht on June 19, 2008 at 8:04 PM

Sorry folks…!

Destiny calls… it took me a bit-o-time to get back to issue at hand!

J_Gocht on June 19, 2008 at 8:07 PM

“…The road to tyranny is paved with patriotic intentions…”

Absolutely my very favorite phrase…!
Thanks again!

J_Gocht on June 19, 2008 at 8:11 PM

Conversations here can be…

Damning…
Hostile…
Confrontational…
Very thoughtful…
Actually my very favorites are; those that show me… a new path and are done insightfully!

J_Gocht on June 19, 2008 at 8:40 PM

This is the government that wants to be in charge of health care and oil?

We’ll end up walking and dying early if they do.

Hog Wild on June 19, 2008 at 8:45 PM

Hog Wild on June 19, 2008 at 8:45 PM

Hey H_W…
Shouldn’t it be…dying and then walking…

J_Gocht on June 19, 2008 at 8:57 PM

My bad… that’s only done Haiti.

J_Gocht on June 19, 2008 at 9:12 PM

This deal does not include explicit immunity for the telecoms. It does, however, provide a standard by which a federal court can determine whether each telecom qualifies for the immunity provisions in the bill by verifying that they received requests and/or approvals from federal agencies that assured the telecoms of the legality of their cooperation. Although it requires a court proceeding to grant immunity, it establishes a clear presumption in favor of the telecoms.

So if they did break the law then who’s held responsible for it?

Afterimage on June 19, 2008 at 9:20 PM

Afterimage on June 19, 2008 at 9:20 P

Damn good question…!

J_Gocht on June 19, 2008 at 9:25 PM

Another victory for Bush, but scant coverage by the dinosaur media. Shocking!

SouthernGent on June 19, 2008 at 9:26 PM

So if they did break the law then who’s held responsible for it?
Afterimage on June 19, 2008 at 9:20 PM

My question would be…

Where the hell in this vast audience are the learned “keepers of the gee-damn law” in this cluster of fine folks?

J_Gocht on June 19, 2008 at 9:32 PM

My Lord…

“They fear to come forth, least they soil their fine robes…!

J_Gocht on June 19, 2008 at 9:54 PM

“You shall inform the judges that the tip of my spear carefully placed… shall relieve the constipation from which they now suffer…to be followed by a free flow of diaherea that will certainly clear both their bowels and their minds!”

J_Gocht on June 19, 2008 at 10:13 PM