FISA, Compromised

After Democrats stood their ground and refused to pass a series of draconian FISA amendments in February, negotiations over the wiretapping law went behind closed doors. In the months since then, news reports have occasionally suggested that another Democratic party sell-out was imminent, only to be superseded by other reports indicating that negotiations were ongoing. Until today. A few moments ago, House Majority Leader Steny Hoyer released what he refers to as a “bipartisan” “compromise” bill: The FISA Amendment Act of 2008, which he authored along with Jay Rockefeller, Kit Bond, and Roy Blunt (respectively, the chairman and ranking member of the Senate Intelligence committee, and the House Minority whip). The word “bipartisan” is technically indisputable. The word “compromise”, by contrast, is a total farce. The most controversial elements of the February legislation were provisions that would have allowed the White House to wiretap American citizens without a warrant, and that would have immunized telecommunications companies from participating in the NSA’s warrantless wiretapping program back in the halcyon days when warrantless wiretapping was unquestionably illegal. Here’s how the new bill deals with the immunity question. Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that…the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007. That’s the game. Non-profit groups like the ACLU and the Electronic Frontier Foundation can sue the telecoms if they want, but if Attorney General Michael Mukasey says “presto”, the lawsuits must be dismissed. As for the nitty gritty of surveillance powers the bill authorizes, here’s what the ACLU says: “This bill allows for mass and untargeted surveillance of Americans’ communications…. The process by which this deal has come about has been as secretive as the warrantless wiretapping program it is seeking to legitimize.” And the media blackout over the last few months is testament to that. None of Congress’ civil liberties stalwarts partook in these negotiations. Neither John Conyers, nor Patrick Leahy–chairmen of the House and Senate Judiciary Committees respectively–got a say. Nor did Sens. Chris Dodd or Russel Feingold. Nor did House Speaker Nancy Pelosi. Leahy says “the legislation unveiled today… is not a bill I can support.” Nonetheless, it looks very much as if Pelosi–who has substantial power to control what does and does not appear on the floor of the House–will allow this to come to a vote. I’ll keep my eye on the comings and goings.