FISA compromise achieved

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.