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Friday, August 3, 2007

Dems Cave to Administration Demands on FISA But Bush Objects Anyway

It is difficult to blog a breaking story with clarity and assurance, but this one is just too amazing to resist the effort. Right now the House of Representatives is debating a Democratic revision to FISA that the White House and GOP legislators are strenuously attacking as putting America at risk of imminent destruction by terrorists. As detailed on TPMmuckraker here and Balkinization here, however, the Democratic bill tracks an agreement negotiated with Bush's Director of National Intelligence earlier in the day. Yesterday DNI McConnell presented a list of what was needed in the bill, and this morning the House Intelligence Committee and Democratic leadership agreed to those points and incorporated them into their draft. When McConnell reported back to the White House, however, Bush rejected the agreement.

Democratic legislators are repeating over and over that the bill tracks what the Bush Administration asked for, and Republicans are denying that there is any agreement and insisting that the bill is fatally flawed and unacceptable. McConnell issued a statement late today that the bill would not allow him to do his duty to provide warning and protect the country, ignoring his prior support for its terms, and GOP legislators are piously quoting the letter over and over.

It is not clear that the Democrats can pass the bill because in addition to unified opposition from the GOP, civil libertarians decry it as cutting too deeply into constitutional guarantees. Marty Lederman on the blog Balkinization describes the provisions of the bill at issue as follows:
(1) Foreign to foreign communications will not require a warrant, without regard to whether the communications are routed through the U.S.;

(2) The Attorney General can apply to the FISA court for an order authorizing electronic surveillance for up to one year "directed at" persons "reasonably believed to be outside the United States." The court would grant the order if it finds that the methods (not individual cases, but the procedures) described by the Attorney General are "reasonably designed to determine whether the persons are outside the United States" and that "a significant purpose of the electronic surveillance is to obtain foreign intelligence information" and certain minimization procedures are acceptable.

(3) The judge may (not must) review compliance with the minimization procedures at any time before the order expires; and

(4) The Attorney General must establish guidelines "reasonably designed to ensure" that an application to conduct surveillance is filed when it is required by the law to be filed.
I'm not thrilled with any of that, but the last one is really scary. The Attorney General will create "guidelines" that are "reasonably designed" to ensure compliance with the law? What does it say about the people doing all this surveillance that such a provision would even be contemplated -- that they can't be counted on to follow the law without it? And the best that the government can be expected to do is promise to "reasonably design" a "guideline" to ensure compliance with the law?

In the debate, the legislators are referring to the warrants based on procedures as "basket warrants." The Democrats are pointing out that basket warrants are less strenuous than individual warrants, while Republicans are calling it a "terrorist protection" requirement that will cripple intelligence gathering and even interfere with operations on the battlefield.

UPDATE: Chris Strohm of CongressDaily just said on C-SPAN that while debate in the House proceeds toward a vote on the bill advanced by the Democrats, the sides are negotiating behind the scenes to come up with a compromise bill. He also says that whatever the House does, the Senate cannot as a practical matter proceed without cooperation from the GOP. Reid has apparently signalled his willingness to have the Senate return next week to continue work on this.

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