I particularly like your hypothetical headline.

Is there a story in the (recent, i.e. available) TNR archives on FISA. This seems like a big deal but in the heat of the primary season it seems difficult to get an in-depth take on it. I assume neither side ACTUALLY wants FISA to expire, or am I mistaken here?

WaPo spin is just reflex action. They're just too used to Pelosi and crew rolling over and playing dead, along with the senate Dems....

BUSH IS PISSED....FILM AT 11....I saw this headline on the Washington Post's front page a few minutes ago and thought, WTF? Eve Fairbanks apparently thought the same thing:Seriously, though, why the hell is this the Post's headline? Here's what happened

The reason that the press coverage is so bad is that the position of the democrats is so lame here. Is it really necessary , or remotely good policy, on this type of issue to enrich tort lawyers at the expense of companies who cooperated with the highest levels of government after 9/11 to provide surveillance assistance? As I understand it, the companies were advised by the government, again at the highest levels, that the taps were legal. All this occurred against the backdrop of recent terror attacks on the US. If there is criminality involved, then let a case be filed and people prosecuted. I doubt you could find a jury of peers convict someoone on this . of course, lost in the haze over lawsuits is whether we have a system in place that best accounts for the conflicting needs of security and our civil liberties. if there is a fight worth fighting it is over that.

"[T]o enrich tort lawyers at the expense of companies who cooperated with the highest levels of government..."   And who enforces the rule of law?  Plumbers?  

No, not plumbers,but criminal courts where the standard of proof is higher and where issues of criminal intent should be proved. But my broader point is that it makes the dems look stupid to be fighting over this issue in the eyes of mainstream americans. if there are problems with the proposed system in the legislation ,than by all means fight it. but to hold it up so that the financial sponsors of the dems can get more money is dopey. and these are hardly tobacco companies that we are dealing with here who poisoned millions and lied for decades about the risks.

I think it's ridiculous that even TNR reporters don't understand what's going on here. FISA is not expiring. FISA has been in place for over 30 years, and is not a program that just expires. What is expiring is the Protect America Act, which gave the government specific powers to tap incoming international transmissions without court oversight. This argument is about extension of that bill, with Telecom Immunity thrown in to make it interesting. This whole "Democrats are letting FISA expire" line is just flat out untrue.

Eve,

Thanks for the response. I did read the Dem press release which did seem to be making the case you're making. And I've read Corner types bloviating about "protecting America" (cue Ron Howard: "hey, that's the name of the bill") but I'd love to see a really nuanced, nitty-gritty of what's going on here. I guess I'll have to take my lazy ass on a google search.

And thanks, jspangler for the clarification. The surveillance issue is one of those on which I'm not sure where I stand. My general impression from what I've been reading is that it's as much an issue of discussion as it is anything else...that the House, or at least the House Democrats, feel Bush is trying to rush passage of the legislation without appropriate discussion of the more controversial aspects (namely, the telecom liability). On the surface of it, jfeder seems like he may have a point; however, it's nice to see the Dems finally standing up to Bush on something.

Out of curiosity, and anyone who can answer this take a shot, what are the specific powers that the PAA grants? Is there much controversy over them, or is it all about the liability? Yeah, I was the kid in class who asked too many questions. Sorry.

Pelosi and company are just lousy politicians, something that the Democratic party has far too many of.  Their mistake was in ever considering an extension of the Protect America Act which was totally unnecessary in the first place.  FISA allows the government a more than adequate window to intercept communications without a warrant in emergent conditions (10 days I recall) before requiring the government to apply to the special court.  There has never been any plausible reason given why this system does not allow the government to do its job gathering necessary intelligence on terrorists.

The Democrats should have loudly condemned the Protect America Act as an Orwellian and unnecessary intrusion upon the Constitution and then proceeded to draft an entirely unrelated bill to address any genuine technical problems with FISA.  Once they accepted Bush's premise that there was anything to renew, the were already in a losing PR battle.  If you accept the bad guy's frame, you are screwed.  It is that simple.  When will the Democratic party every get some people with political smarts instead of a bunch of weak-kneed policy bureaucrats.  The reason the Dems are timid is they have no one who knows how to play the political game -- except Obama.  We Democrats will prove ourselves consummate fools if we don't seize the chance to nominate someone with his emerging political genius.

Hi CFK,

The wikipedia page is pretty good detailed overview of what the bill does. You can find it at en.wikipedia.org/.../Protect_America_Act_of_2007 .

Generally, it came about because the Bush administration claimed it was lacking necessary powers to gather intelligence. Therefore, intelligence gathering that previously took place under strict FISA supervision was placed under administrative supervision.

jfeder and others who think this is about enriching trial lawyers just don't know the facts. The lawsuits brought on behalf of alleged victims of this illegal surveillance are being handled by public-interest lawyers who make dirt. And the WHOLE PURPOSE of the relevant provision in existing law was to prevent the Executive from enlisting telecom companies to help with illegal surveillance EVEN IF the president "orders" it. The president has no authority to order American citizens or companies to break the law -- the the relevant underlying law here is the Fourth Amendment, which the Framers adopted because they knew full well that presidents and other Executives would TRY to spy on citizens illegally if they were permitted to. They were right; Nixon and others tried it; the Congress passed a law making clear that companies shouldn't cooperate (that they have an affirmative duty to protect their customers' privacy); and if it's "lame," as jfeder says, to enforce that ban, then the Fourth Amendment is lame too and should just be repealed. Why do such basic rights even have to be explained here?

jspangler,

Thanks for the link, it explained a lot. It seems that the PAA was passed to expand warrantless wiretapping to people overseas. And it seems that the retroactive protection for telecom companies, which is the most contentious issue, would only apply to companies that collaborated before the PAA was signed, as those that collaborated after are already protected. Is this correct?

I also have two questions that I haven't seen addressed yet:

1)  do the same restrictions on spying on U.S. "people" (citizens, legal residents, corporations) within the U.S. apply overseas? Looking at the original FISA bill, it makes a distinction between spying on U.S. people and foreign entities. But I didn't see a distinction in PAA. Does it apply in equal measure to citizens, legal residents, and those not under jurisdiction of the American government?

2) I understand FISA will continue to operate if the PAA expires, but given that the PAA specifically addressed extra-territorial surveillance how will THAT surveillance be affected?

Anyone who takes a crack at these questions gets $1000 from me (with a sunset provision taking action 2 seconds after this comment is posted).

Jsmith,

You ask good questions. What you don't realize is that being a SERIOUS citizen means understanding that the terrorists want to kill us, and all who oppose giving away their rights in the name of fighting terror are UNSERIOUS people (which is the biggest insult available to the pundit class). It's too bad that the Democrats have to put up with the crazies on their left flank trying to thwart the wholesale giveaway of our rights. Funny that it works because of the cynicism of the Republicans.

CFK,

My understanding is that under even the PAA, communications involving American citizens or persons overseas or communications to the U.S. involving American citizens or persons are not open to snooping without just cause. What the PAA does is turn that determination over to the administration in a large number of cases INSTEAD OF the FISA court. That is the basic issue at play.

As for the telecoms, there was always a way for telecoms to give information to the government with the appropriate court order, which the telecoms in question did not have. The PAA changes this rule so that telecoms only need a written assurance from the Attorney General that the actions they are being asked to undertake are legal. The debate stems mostly from the fact that the telecoms should have been aware of the appropriate law, and were in fact giving the government information illegally in exchange for money. I.E., they were in blatant violation of FISA as it's stood since the 1970s.

In response to jsmith125, could you please enlighten me as to the nature of the relief that is being sought? And was the activity clearly illegal for the companies under the then prevailing law? as to the fourth amendment it applies only to government searches not private companies so that could not be the law being enforced in these cases.

This would seem to be a case of executive breach of law if there was one, and i am at a loss at to why it makes policy sense to rectify it by a damages claim against a private company if that is what is being sought. If it was illegal, then prosecution under the applicable law would seem to be the remedy. But as i said i am dubious that a jury would ever convict in the absence of a clear and nefarious conspiracy to breach the law (assuming that there is a criminal law that applies).

And while i always am willing to be corrected when wrong, i think your implication that those who don't agree with you either don't understand basic constitutional rights or believe they should be not be enforced properly, is  inaccurate and not a substantive response.

Upon further investigation, it looks like U.S. person can't be the target of PAA-covered foreign surveillance, but because a communication involves more than one person, and allowance is made for surveillance of a communication between a foreign suspect and a U.S. person, the distinction is somewhat moot.

What still confuses me a bit is what happens next. If the President withdraws the request for retroactive protection of the telecoms, says he'll sign the renewal of the PAA, will the Democrats then go ahead and renew it since the big fuss they made was over the retroactive protection? And if so, jspangler, doesn't this leave the corporations collaborating with the government post-PAA protected (unless PAA is declared unconstitutional)?

jfeder, the whole matter has been covered extensively and in detail on the Firedoglake blog and on Glenn Greenwald's blog on Salon.com. Greenwald is a constitutional lawyer and explains it all better than I can, but my understanding is that the telecom companies want immunity on the grounds that they were "obeying" some directive from the Executive Branch. There was a law specifically forbidding this, precisely because previous Congresses recognized that Executive Branch spying would probably entail just such cooperation between government officials and telecom companies. And we know from the testimony of the one telecom that refused to cooperate (Verizon, I think) that the surveillance was done under lucrative government contracts that the telecom companies happily bid for, which is to say, the venal profit motive here was driving THEM, not the trial lawyers you've tried to lay it on. Basically, these companies sold their customers' privacy rights for profit.

But to get to the Fourth Amendment: Again, I'm not a lawyer, but it seems just commonsensical that the telecoms can't have it both ways. Either they were acting "under color of law," i.e. effectively making themselves agents of the government -- that's their own claim -- in which case Fourth Amendment rights clearly ARE involved; or, they were not acting under any government authority, in which case they were merely businesspeople spying on customers -- which may not violate the Fourth Amendment, but certainly is an actionable tort that there is no reason whatever for Congress to immunize them against. So the very grounds on which they're seeking immunity (that they were acting for and at the behest of the government) is in effect an admission that they were violating the Fourth Amendment.

Good points Jsmith, and well put. This justice department isn't about to investigate itself, and these trials are the only way to reveal years of systemic law breaking in regards to FISA. That's why the Bush Administration is so intent on getting telecom immunity. There was an amendment put up for a vote in the Senate (that was filibustered by the Republicans) to transfer liability from the telecoms to the government (under the assumption that the telecoms here shouldn't be financially liable for their lawbreaking - which is questionable). But this, of course, was blocked, because the Republicans and their allies want to keep it from being investigated at all.

CFK, as of now, I believe the PAA will expire (due to a failed vote after some liberal dems and conservative republicans voted together to block it, for different reasons) with no permanent substitute put in place. All currently running taps will still be legal.

I think your reading of the PAA is correct. They do make the point moot by allowing the monitoring of non-American persons by the government. BUT, this was already allowed under current FISA law! The difference is that before, the government had to go to the court within 72 hours of initiating the monitoring, while now they have to only go through an internal administrative process. The big question here is really one of process and accountability (i.e., should a court or the administration decide who is and isn't being appropriately monitored).

As for the telecoms, yes, all telecoms would effectively be immune post-PAA, but this is also because of a changed process. Prior to the PAA, under existing FISA law, telecoms were not allowed to turn over private information unless presented with a court order, at which point they would be essentially required to. Under the PAA, telecoms could continue receiving money for turning over private information (which is what they've been doing, and what all the hubbub is about), and all that would be required is a letter from the attorney general saying that it's all legal. Since the Bush attorney general will always say that, there are effectively no legal controls on private info from the telecoms.

I would like to add overall that some telecom companies resisted the urge to take money for turning over private information, after their lawyers told them it was illegal. For great info on this, see firedoglake or glenn greenwald www.salon.com/.../greenwald

Letting the telecom companies off the hook is bad public policy.  If there is no downside to participating in illegal searches, then the government will be able to do them with impunity in the future.  When we have an attorney general who doesn't know whether waterboarding is torture, and the previous attorney general was even less impressive, how can we be so complacent?

Our civil liberties are worth guarding - and we need corporate citizens to exercise due diligence in such matters.  

Neil