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.

For those of you *trying* to follow the debate raging in D.C. about the Foreign Intelligence Surveillance Act and the extension of the "Protect America Act of 2007", please go on over to EmptyWheel and Crooks and Liars. Both have extensive coverage about it -- with video! -- and can help to wrap your heads around telco amnesty, basket warrants or reverse targeting, sequestration of illegally harvested evidence and other arcane but vitally important issues that can make or break the future of civil rights in the US.

"NSA's Lucky Break: How the U.S. Became Switchboard to the World." by Ryan Singel

Singel's article provides an intriguing history lesson on internet architecture and the US role as an international communications hub. Too bad it's not just a history lesson, but an explanation of current legislation making its way through Congress to give the NSA permanent eavesdropping capabilities on both foreign and domestic communication traffic.

The RESTORE Act (.pdf) (RESTORE = "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective") would extend the NSA's power indefinitely but would "include some safeguards against abuse" (IMHO, an audit trail described in Sec 7 and 8 of the bill does little to safeguard against abuse!). Ironically, President Bush has vowed to veto RESTORE because it doesn't extend retroactive legal immunity to telephone companies who cooperated in the NSA's domestic surveillance before it was legalized. Of course the telecoms are lobbying hard for this immunity clause -- AT&T is facing a class-action lawsuit for allegedly wiretapping the internet at the behest of the NSA. Need to protect the industrial hand that feeds you eh?

A lucky coincidence of economics is responsible for routing much of the world's internet and telephone traffic through switching points in the United States, where, under legislation introduced this week, the U.S. National Security Agency will be free to continue tapping it.

Leading House Democrats introduced the so-called RESTORE Act Tuesday that allows the nation's spies to maintain permanent eavesdropping stations inside United States switching centers. Telecom and internet experts interviewed by Wired News say the bill will give the NSA legal access to a torrent of foreign phone calls and internet traffic that travels through American soil on its way someplace else.

But contrary to recent assertions by Bush administration officials, the amount of international traffic entering the United States is dropping, not increasing, experts say.

Can you hear the sound of my head exploding over the intertubes? Anyone got a twist-tie?!

First there was the news over the weekend that Congress passed the Protect America Act of 2007 which changes the 1978 Foreign Intelligence Surveillance Act (FISA) and provides new powers to the National Security Agency to monitor communications that enter the United States and involve foreigners who are the subjects of a national security investigation (read the FAQ; listen to analysis from Glenn Greenwald, Marjorie Cohn, and Amy Goodman).

But now I just read that Democrats in the House and Senate have introduced resolutions calling for the censure (non-binding of course) of President Bush, Vice President Dick Cheney and Attorney General Alberto Gonzales for misleading the country in pursuing war with Iraq and for undermining the rule of law.

How can that be that the same Congress that would give National Intelligence Director Mike McConnell and Attorney General Alberto Gonzales joint authority to approve the monitoring of calls and e-mails, rather than the 11-member Foreign Intelligence Surveillance Court (basically making legal the warrentless domestic spy program) could be the same legislative body that calls for censure of top administration officials including the Attorney General who will have the increased authority to undermine the rule of law?!

[Thanks PS Mueller!]

Hot off the presses:

A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

Glenn Greenwald is tracking and analyzing the issue and has updated several times. He includes links to both the opinion and the injunction.

Secrecy News recently released the CRS report giving a detailed evaluation of Bush Administration legal claims regarding Presidential authority to conduct warrantless electronic surveillance within the United States. CRS evaluated the arguments presented in defense of the reported NSA surveillance activity, and ultimately (if delicately) find them wanting. Definitely one to read and print out for one's library collection.

PDF of report from Secrecy News

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.