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Revise FISA? Trust This White House? Are You Serious?

bushgonzales.jpgYou would think that after Alberto Gonzales and the Bush Adminstration’s non-stop dissembling about its warrantless spying programs, and the illegal data mining the NSA has now been forced to admit it conducted in defiance of explicit Congress statutes to defund such efforts, Congress would greet any proposal by the Administration to amend the Foreign Intelligence Surveillance Act (FISA) to broaden the President’s powers and discretion with disdain and deep suspicion. But as Phoenix Woman posted last night, not everyone has gotten the message that this Administration cannot . . . ever. . . be . . . trusted.

Earlier this week, Democrats indicated they were eager to sit down with NSA, White House and Justice attorneys to give them whatever new powers they needed. I’m astonished there are still any Democrats who can be stampeded by fear that voters will punish them for standing up to this lawless fearmongering President when he waves the terrorist flag. But the White House has been claiming that new legislation must be adopted immediately, before Congress goes on its August recess. Mimikatz at TNH has all the details of what’s at stake.

So what’s the rush? The supposed loophole that prevents NSA from spying on terrorist-to-terrorist communications whose communications pass through the US has been known for months, ever since, as a Republican leak to the Washington Post tells us, a FISA court judge reportedly found the Administration’s warrantless programs illegal.

Where does the legislation stand? According to a report in yesterday’s The Hill, Russ Feingold was threatening to block the bill in its current form:

Meanwhile, Senate Intelligence Chairman Jay Rockefeller (D-W.Va.) said Thursday afternoon that he was “in the thick” of negotiations with the White House and Republicans over how to change current law so that intelligence operatives can surveil overseas targets whose communications pass through U.S. networks without first obtaining a warrant. While both Democrats and Republicans generally agree that those barriers in current law need to be lifted, they have been stymied by who should oversee such activities — with Democrats balking at the notion of giving embattled Attorney General Alberto Gonzales sole authority over the program.

The White House’s latest offer — to give both Gonzales and National Intelligence Director Michael McConnell oversight authority — has been met with skepticism by most Democrats involved in the talks. Democrats have proposed allowing a Foreign Intelligence Surveillance Act court to oversee the attorney general’s activities, as well as a six-month sunset provision.

Still, both Rockefeller and Senate Majority Leader Harry Reid (D-Nev.) said they hoped to have a deal Thursday night.

At a Thursday press conference, Reid said he has been in contact with Speaker Nancy Pelosi (D-Calif.) about how to move any compromise quickly through both chambers.

Given these concerns, Senator Feingold let it be known that he might block any rush to legislation if it was not narrowly drawn and was only temporary:

Feingold said anything that passes quickly this week should sunset in September, and he said Rockefeller’s proposal is not adequate to protect the civil liberties of innocent Americans whose communications may be intercepted in the quest for terrorist messages.

“The protections related to that are not adequate — not that I’ve seen,” Feingold said. He added, “There are also other issues that relate to my desire to reaffirm the fact that the FISA statute is the exclusive means for wiretapping. That should be reaffirmed. I think that should be in there.”

By late Thursday afternoon, Feingold, joined by Senators Robert Byrd and Bernie Sanders sent Harry Reid this letter letting him know their concerns: None of the Administration’s proposals were acceptable, and the Democrats counterproposal, while better, was not good enough. Moreover, any change adopted now should be sunset in 90 days, which would give Congress another chance to consider more carefully the need for permanent changes.

“…given all that has come out in the last year and a half about this administration’s decision to violate FISA after 9/11, we are reluctant to amend FISA without assurances that the administration will actually follow the law. In this regard, any FISA legislation should include a reiteration of the exclusivity of FISA and the criminal surveillance laws as the sole authority for conducting electronic surveillance.”

Last night, it was not clear what the Democratic leadership would do. But they should have learned by now that the WH cannot be trusted on these matters, and they should heed the warnings of Feingold, Byrd and Sanders. Today’s New York Times editorial agrees.

If Congress has not yet acted, this is the time to contact the members and let them know your concerns about this legislation. Here’s an ACLU site you can use to urge Congress to delay this matter until it can be more carefully considered. More phone numbers are here:

1 (800) 828 – 0498
1 (800) 459 – 1887
1 (800) 614 – 2803
1 (866) 340 – 9281
1 (866) 338 – 1015
1 (877) 851 – 6437

You know what to do.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley