Rushed Debate on Federal Spying Powers, CATO Institute, six minute video posted as "FISA: The Movie!" on the Association of Research Libraries "Policy Notes" site. A nice summary of the Foreign Intelligence Surveillance Act (FISA) domestic spying "debate" and re-authorization over the holidays.

Back on September 18, 2007, the House Judiciary Committee chaired by John Conyers (D-Michigan) held a hearing entitled "Warrantless Surveillance and the Foreign Intelligence Surveillance Act". In that hearing, Conyers posed some questions to the Justice Department to get at the Department’s views on the legal framework governing electronic surveillance under the amended Foreign Intelligence Surveillance Act (FISA) -- we've been tracking FISA for some time on FGI. The Committee hearing volume (pdf) was published in June 2008 without the Justice Department’s answers to these questions, because they were provided to Congress too late to be included in the published record.

As you might remember, back in December, 2005 the NY Times broke a story about the Bush administration secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials. FAS as well as the Electronic Frontier Foundation (EFF) and other civil liberties organizations have been tracking the NSA warrantless surveillance controversy.

Many thanks to Steven Aftergood and the Federation of American Scientists (FAS) for submitting a FOIA request to make public Assistant Attorney General Kenneth Wainstein's written responses to those questions posed about this important program and bringing to light the legal perspective that held sway within the Bush administration's Justice Department.

“If the so-called Terrorist Surveillance Program (TSP) was perfectly legal as has been claimed, why would companies who cooperated in it need immunity?” the Committee asked. (To protect classified information, among other reasons, the Department responded.) “Is the President free to disregard any provisions of FISA with which he disagrees?” (No, not exactly.) “If an individual in the United States is suspected of working in collusion with persons outside the United States–such that an investigation of one is in effect the investigation of the other–under what circumstances, generally, would you use criminal or other FISA wiretaps?” (Targeting of persons in the United States can only be done under FISA procedures.)

Today, New York Times reported that the Wiretapping Program will be legalized by a federal intelligence court. It will authorize both the president and Congress to monitor overseas phone calls and e-mail messages without a court order, although this may include Americans’ personal communications. The report states that “in validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.”

[UPDATE 2/27/2010: It seems that the Ketchup and Caviar blog is no more. The flow charts can still be viewed on BoingBoing and the text of the blog post is preserved and available at the internet Archive's WayBack Machine. jrj]

Ketchup and Caviar has a very good post describing in flow charts the old FISA law and the changes made with the new FISA law. Click on the charts to get larger images.

Last Wednesday was a pretty dark day for me and millions of other constitution-loving people when Congress passed the the FISA Amendments Act that included retroactive immunity for US telecommunications companies who'd participated in the Bush administration's illegal warrantless wiretapping program of US citizens.

Well, a little ray of sunshine just broke through those dark clouds when, according to Threat Level (Wired News blog), the American Civil Liberties Union (ACLU) filed suit Thursday (along with the Electronic Frontier Foundation (EFF)), challenging the constitutionality of the act. The ACLU contends (.pdf) that the expanded spying power violates the Constitution's prohibition on unreasonable searches and seizures.

If you can afford it, please consider donating to one or both of those orgs (link to EFF, ACLU) so they can keep up the good fight! (disclosure: I'm a proud EFF member!).

UPDATE: Glenn Greenwald has more including a podcast interview with Jameel Jaffer, the Director of the ACLU's National Security Project.

[Thanks BoingBoing!]

The Senate passed the FISA bill Wednesday, 69-28. It turned back three amendments that would have watered down, delayed or stripped away the immunity provision demanded by President Bush.

When the president signs the bill, as expected, it will effectively dismiss some 40 lawsuits filed against telecommunications companies for alleged violations of wiretapping and privacy laws.

Glenn Greenwald has more, including this succinct rap-up of this travesty:

With their vote today, the Democratic-led Congress has covered-up years of deliberate surveillance crimes by the Bush administration and the telecom industry, and has dramatically advanced a full-scale attack on the rule of law in this country.

As you know, we've been following the FISA and telecom immunity debate for some time. It's a particularly hot topic in this political season and the House just passed a compromise (compromised?) version of the FISA reform bill that would give telecom companies immunity from prosecution for their complicity and cooperation with the Bush Administration with its efforts to bolster intelligence gathering and surveillance without going through the FISA courts as the law states that they should.

Senator Barack Obama has gotten in a lot of hot water recently from his own supporters when he decided to support the current version of the bill which includes telecom immunity -- after he had said he would not support telecom immunity and *would* support a filibuster if immunity was included. And today, Nancy Soderberg, former deputy national security advisor and an ambassador to the United Nations in the Clinton administration, wrote an Op-Ed in the Los Angeles Times defending the FISA bill and telecom amnesty -- calling it a "good-enough spy law."

The odd thing about Soderberg's piece is that she admits that the administration's end-run around FISA WAS NOT LAWFUL. But she still thinks the telecom companies should be protected from law suits because they "are not the ones to blame for that abuse of presidential power." Huh? I just don't get this line of reasoning at all. Protecting these companies from litigation falls under one of the 14 points of fascism defined by Laurence Britt ("Corporate Power is Protected"). Is this what this country has become?

Glenn Greenwald, one of the best and most thorough journalists working today, has nailed this one in his Salon.com piece, "The political establishment and telecom immunity -- why it matters":

Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren't only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That's why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here.

I urge everyone to contact your Senators and tell them to reject telecom immunity in HR6304 FISA Amendments Act of 2008 and to support the Dodd-Feingold-Leahy amendment (S.A.5064) to be voted on on Tuesday, July 8th that will strip out telecom immunity.

The FAS Project on Government Secrecy Blog contains an informative post about secret sessions of the House of Representatives, including one that took place on March 13th to consider classified matters concerning the Foreign Intelligence Surveillance Act (FISA).

For more information about secret sessions, read "Secret Sessions of the House and Senate" and "Secret Sessions of Congress: A Brief Historical Overview," by the Congressional Research Service. I knew that the Senate held secret sessions (54 since 1929), but I did not know that the House only held three secret sessions since 1830 and they took place in 1979, 1980, and 1983! However, there were unsuccessful attempts to hold a secret session to discuss the assessment of the war in Iraq in 2006 (search for page H7371) and the Intelligence Authorization Act for FY 2008 (pages H4795-4796, H4808, and H4867-68). Also, the proceedings of a secret session are not published unless the House or Senate votes to release them. If they vote to release them, then the transcripts will be printed in the Congressional Record, but if the House votes not to release them, then the they are preserved at NARA and may be available to the public after 30 years.

After the Senate, on Tuesday, February 12, 2008, passed a FISA reform bill that included immunity for telecom companies from being sued for participating in the unconstitutional NSA wiretapping program, the House of Representatives today passed a version of the FISA bill *without* telecom immunity! There is sure to be much negotiation and politicking from the administration as the two bills go to the United States Congress Conference committee. Stay tuned and be sure to contact your Congressional representatives and let them know that telecom immunity is NOT OK!

We've been trying to follow the FISA debate but it's not been easy since there's a lot of politically charged rhetoric going around. The ACLU has done some fact-checking to try and help out.

The major sticking point seems to be whether or not there should be immunity for the telecommunications companies that aided the president’s warrantless wiretapping program -- the Senate bill has it, the House bill does not. As we noted in August, 2006, U.S. District Judge Anna Diggs Taylor found the NSA's wiretapping program unconstitutional. So it would seem that the telecom companies broke the law and violated their customers' privacy rights in participating in the NSA program. This, then, is why the administration is pushing for their immunity. See the Electronic Frontier Foundation for more information.