FISA Compromise

Brian Beutler, Media Consortium

They’ve reached a deal, and here’s how things will shake out: Next week, perhaps Monday afternoon, debate will resume on FISA, and as part of a unanimous consent agreement, there will be an up-or-down, simple majority vote on several extremely important amendments. Some of those are: * The Feingold/Dodd immunity-stripping amendment * The Whitehouse/Specter substitution amendment, which would make the U.S. government–as opposed to a telecommunications company–the defendant in any lawsuit, provided that the FISC (after reviewing both sides of the case, including plaintiff testimony) has determined that the company acted in good faith * The Feingold sequestration amendments, prohibiting the use of illegally acquired surveillance information * The Feingold limitation on bulk surveillance, which would require the government (through the Attorney General and the Director of National Intelligence) to certify to the FISC that its surveillance activity is of foreign-intelligence interest * The Feingold prohibition on warrantless reverse targeting–specifically requiring authorization for surveillance of a foreign target when the goal of that surveillance is to acquire information about an American contact * A Bond amendment, waiving the need for a warrant for any surveillance meant to curtail WMD proliferation Other amendments will require 60 votes. * The Cardin amendment to sunset the FISA Amendments Act after four, instead of six, years * The Feinstein exclusivity amendment, which seeks to ensure that FISA alone (and not, say, the congressional authorization for the use of military force, or any other broad provision of law) is the exclusive means by which the government can conduct electronic surveillance * The Whitehouse/Rockefeller/Leahy/Schumer minimization compliance review amendment, which would give the FISC the authority not just to approve of minimization procedures (which the Intelligence Committee bill already would have allowed) but also to review their implementation. (Minimization is the procedure by which non-pertinent information swept up in the course of legal surveillance is stripped of identifying information and removed from the intelligence-gathering process.) Accepted, too, as part of the base bill is a provision that Congress be provided court data (opinions, rulings, etc.) for any FISA case that involved a “significant interpretations of law” retroactive five years. (The original Intelligence committee bill contained the provision sans retroactivity.) Not all of these will pass. In fact, it appears quite likely that several of these bars were set where they were set to prevent many changes from being adopted–that is, most of the amendments looking at simple-majority votes don’t stand much chance of winning simple majorities, and the amendments requiring 60 votes most likely don’t quite have 60 votes. But the situation’s always changing and more information will be forthcoming, I’m sure. Look to Monday.

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