Yesterday's New York Times article on the FISA bill had a misleading title and could easily be misinterpreted if it is not read closely. It implied that the House FISA bill, introduced today, is a capitulation. It is not. It is a strong bill that protects civil liberties and provides for oversight. What the NYT article suggests is that certain Democrats believe that they will ultimately have to give up on that bill because Bush will demand capitulation. This is worrisome, but we are not there yet.
We have a good bill before the House. The ACLU and the progressive caucus were consulted, and many in the progressive caucus are comfortable with it. Congressman Nadler, a strong civil libertarian and progressive, says in that NYT article:
Mr. Nadler said that he was worried the Senate would give too much ground to the administration in its proposal, but that he was satisfied with the bill to be proposed on Tuesday in the House.
"It is not perfect, but it is a good bill," he said. "It makes huge improvements in the current law. In some respects it is better than the old FISA law," a reference to the foreign intelligence court.
We need to fight for this House FISA bill. It is not over. The Democrats have not capitulated. At least not yet. If we give up now under the false (and lazy) impression that it is all over, we will be doing everyone a disservice. The game is afoot, and we are players.
ThinkProgress, btw, has the summary of the bill, which I will reproduce in full (since it is a Congressional document):
Summary Of The RESTORE Act
RESTORE Act of 2007
(Responsible Surveillance That is Overseen, Reviewed and Effective)
Security and Liberty: The bill provides the Intelligence Community with effective tools to conduct surveillance of foreign targets outside the United States but restores Constitutional checks and balances that were not contained in the Protect America Act (PAA–the Administration’s FISA bill.)
The RESTORE ACT:
- Clarifies that No Court Warrant is Required to Intercept Communications of Non-United States Persons When Both Ends of the Communications are Outside the United States.
- Requires an Individualized Court Warrant from the FISA Court When Targeting Persons in the United States. (Same as current law.)
- Creates a Program of Court Authorized Targeting of Non-U.S. Persons Outside the United States. Grants the Attorney General (AG) and the Director of National Intelligence (DNI) authority to apply to the FISA Court for an order to conduct surveillance of foreign targets, or groups of targets, for up to one year — but RESTORES the following checks and balances that were absent under the PAA:
a. Court Review of Targeting Procedures. The FISA Court must review targeting procedures to ensure that they are reasonably designed to target only people outside the United States. In emergencies, the FISA Court review may take place after the surveillance has begun — for up to 45 days. DNI McConnell told Congress in September that he did not oppose FISA Court review of these targeting procedures.
b. Court Review of Minimization Procedures. The FISA Court must review minimization procedures. DNI McConnell told Congress in September that he did not oppose FISA Court review of these minimization procedures.
c. Court Review of Guidelines to ensure that, when the government seeks to conduct electronic surveillance of a person in the United States, the government obtains a traditional individualized warrant from the FISA Court.
- Clarifies Ambiguous Language on Warrantless Domestic Searches. The bill clarifies and eliminates ambiguous language in the PAA that appeared to authorize warrantless searches inside the United States, including physical searches of American homes, offices, computers, and medical records.
In a letter to Congress in September, Administration officials indicated that they did not intend their legislation to authorize such warrantless domestic searches and expressed a willingness to consider alternative language.
- A RESTORE ACT Authorization May Not Be Used to Target Any Known U.S. Person. If the government learns that the target of surveillance is a U.S. person (say, an American traveling abroad), it cannot use this new authority.
Assistant Attorney General Ken Wainstein acknowledged to Congress in September that the PAA could be used by the Administration to target Americans abroad without a warrant, even U.S. soldiers serving in Iraq and Afghanistan.
- Limits Authority to Terrorism, Espionage, Sabotage, and Threats to National Security. The Administration’s bill allowed for surveillance for all foreign intelligence, including a broad category of information related to "foreign affairs." This bill allows the Intelligence Community to deal with the threats facing the United States from terrorism, espionage, sabotage, clandestine intelligence activities, and to collect information related to the national defense or security of the U.S., without authorizing the collection on the broad category of "foreign affairs."
- Requires Quarterly Audits and Reports. Requires quarterly audits by the Justice Department Inspector General (DOJ IG) on communications collected under this authority and the number of U.S. persons identified in intelligence reports disseminated pursuant to this collection. These audits would be provided to the FISA Court and to Congress (Intelligence and Judiciary Committees.)
The Administration’s bill contained very limited reporting to Congress. During testimony, DNI McConnell said he did not oppose an Inspector General audit of the program to determine the scope of American communications swept up by this authority.
- Requires an Audit of the President’s Surveillance Program and Other Warrantless Surveillance Programs. This audit mandates a report and documents related to these programs be provided to Congress in unclassified form with a classified annex.
- Requires Record-keeping of the Use of United States Persons Information. Mandates that the Executive Branch record every instance in which the identity of a United States person whose communication was acquired by the Intelligence Community is disseminated to an element or person within the Executive Branch and that it submit an annual report to Congress on the dissemination.
- Adds Resources for FISA. Adds funding for personnel and technology resources at DOJ and NSA to speed the FISA process and to ensure that audits can be conducted expeditiously.
- Reiterates the Exclusivity of FISA. Includes House-passed bipartisan Schiff-Flake language stating that FISA is the exclusive means to conduct electronic surveillance of Americans for the purpose of foreign intelligence collection.
- No Retroactive Immunity. The bill is silent on retroactive immunity because the Administration has refused to provide Congress with documents on the specifics of the President’s warrantless surveillance program. However, the bill does provide prospective immunity for those complying with court orders issued pursuant to this authority.
- Establishes En Banc Review. Allows the FISA Court to sit en banc. The FISA Court requested this, and the Administration does not oppose it.
- Provides Sunset, Transition Procedures and Report on PAA. Sunsets this new authority on December 31, 2009, when certain PATRIOT Act provisions sunset. However, the legislation will allow for a transition from the existing warrants to the new ones to ensure that the Intelligence Community does not go "dark" on any surveillance. The Administration will be required to submit a report on U.S.-person information collected and disseminated under the PAA authorities.
Update [2007-10-9 11:27:14 by pontificator]: Glenn Greenwald is of similar mind:
But at least thus far, from everything I can tell, the picture is more complicated and less depressing than this NYT article suggests, and the defeat is not yet a fait accompli. To begin with, the bill to be proposed today by the House Democratic leadership actually contains some surprisingly good and important provisions.
Update [2007-10-9 17:26:45 by pontificator]: A representative of the ACLU sent me an email clarifying that they are still working with members of the progressive caucus to further improve the House bill. The following is a verbatim copy of the email (which I am posting with the sender's permission):
We were consulted. And we appreciate being consulted – but being consulted is NOT enough. Leadership and the committee did consult us, and but they did not make a vital, key change. In the current draft of the bill (the RESTORE act) there are blanket warrants --
blanket warrants are not good enough. That is the flaw in the house bill. And it will be fatal if it stays in the bill.
We must have individual warrants for any call information collected from Americans.
Also, many progressives are NOT comfortable with it. The progressive caucus is working with us.
We are working with progressive members who want one of two things: the bill to be fixed so there are individual warrants
Or a progressive will introduce legislation that is better.
Keep your eyes peeled for that legislation.......