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The net-roots fight has thus far has been about the amnesty provision which lets ATT and Verizon and many others off the hook for giving the government our phone records illegally, but there is much more to it.
Yesterday Sen. Feingold met with a handful of bloggers to talk about critical issues facing the Senate, and at the top of the list was of course FISA. He took us to task, gently, for focusing the fight on telco amnesty. He was right to do so. Speaking for myself, I focused on this aspect because it was the guaranteed poison bill of the bill--if it wasn't included, Bush would veto. This seemed the most straightforward of the myriad of issues to explain and to rally people behind and to get the Democrats in the Senate to finally stand up to the administration. It's worked so far, but Senator Feingold is absolutely correct in that we need to really understand the scope of the problems both in the PAA, and in the bill currently pending before the Senate.
Senator Feingold discussed these problems with us a few weeks ago. And he reiterated them to us yesterday.
As I say in my listening sessions, I take out my Blackberry and I say, "Do you folks realize that if you make a phone call or e-mail or do what I did yesterday, I received an e-mail from my daughter who's in England, that that is no longer private. That the government can suck up all your e-mails and all your phone calls whether it be to your son or daughter in Iraq or your child that's in their junior year abroad, or it's a reporter over there, and there's no court oversight of it at all. It's just 'trust us' by the administration." That's what's going on in this legislation.
Here's what else there is that Democrats are fighting for against the Republicans, in trying to get their amendments considered:
Meaningful oversight of intelligence activities. Democrats have offered an amendment that would grant the Foreign Intelligence Surveillance Court the discretionary authority to not only approve minimization rules but to review their implementation. The SSCI bill only grants the Court authority to do the former. The minimization compliance review amendment would ensure the meaningfulness of rules approved by the FISA Court to protect Americans whose communications are incidentally picked up by the intelligence community while conducting foreign surveillance by ensuring that those rules are followed. (Whitehouse-Rockefeller-Leahy-Schumer)
Exclusivity of FISA. Democrats have an amendment that would reiterate Congress' original intent that FISA be the exclusive means for conducting electronic surveillance. The amendment would reject the President's now discredited argument that the 2002 Authorization for Use of Military Force against al Qaeda and Taliban granted him authority for warrantless wiretapping outside the parameters set forth in FISA and affirmatively state that only an "express statutory authorization" would create an exception to FISA. (Feinstein)
Review the President's warrantless wiretapping program. Democrats have an amendment that would require the relevant Offices of Inspectors General to jointly examine the legality of the Terrorist Surveillance Program, which was conducted in secret and unauthorized by Congress, and report its findings back to Congress. (Leahy)
Ensure the timely review of expanded authorities. Democrats have an amendment that would shorten the sunset of the FISA Amendments bill from six years to four years, ensuring that future Presidents and Congresses' have an opportunity to review the need for and effectiveness of these authorities. (Cardin)
Access to FISA Court documents. Democrats have an amendment that would require that Congress be given timely access to FISA Court pleadings, opinions, and decisions that contain significant interpretations of law, retroactive five years. The SSCI bill mandates congressional access going forward, but does not require access to previous documents. (Feingold)
Prohibit the use of illegally obtained information. Democrats have an amendment that would create an incentive for the government to adhere to FISA guidelines by limiting the government's use of illegally gathered information on U.S. persons, unless it is determined by the FISA Court that the information indicates a threat of death or serious bodily harm or the government has amended its defective procedures to conform with the law. (Feingold)
Limit "bulk collections." Democrats have an amendment that would prevent the government from authorizing "bulk collections," such as all communications between the U.S. and the rest of the world. While absurd and of questionable constitutionality, such collections may be permissible under current law. This amendment would limit the opportunity for abuse by requiring the government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest. (Feingold)
Require a warrant when targeting U.S. persons. Democrats have an amendment that would prohibit warrantless reverse targeting by requiring a FISA Court order for surveillance of a foreign person where the "significant purpose" of the collection is to target a U.S. person located in the United States. (Feingold)
Provide an alternative to blanket immunity for telecommunication companies. Democrats have an amendment that would substitute the government for telecommunication companies being sued for their participation in the warrantless wiretapping program, but only if the company is first determined by the FISA Court to have cooperated with the Bush Administration reasonably and in good faith. Plaintiffs would be entitled to appear before the court as well, and if the court found that the company did not act reasonably and in good faith, the company would remain in litigation and not be substituted. This approach strikes a balance between the "full immunity" approach, which would rob plaintiffs of their day in court, and the "no immunity" approach, which may unfairly punish companies who relied upon the Bush Administration's claims that the warrantless wiretapping program was legal. Moreover, this approach places the primary responsibility for any wrongdoing where it belongs: with the Bush Administration. (Specter-Whitehouse)
We still have a long way to go on this bill so let's not slack off now.
