Tuesday, March 04, 2008

What is going on with FISA ?

Obviously the Democrats are caving, but what exactly are they

Dismal but unsurprising. The Bush administration and Republicans had me going for a while. They were so determined to humiliate themselves getting caught lying about the effects of the lapsing of the PRotect America Act, that I almost hoped that the Democrats wouldn't have thrown them a life line.

Oddly the claims this article by Ellen Nakashima and Paul Kane in the Washington Post which are news to me are claims about the past.

The paragraph below is an amazing piece of work.

"This is not amnesty," Wainstein [assistant attorney general for national security] said at the meeting. "This is targeted immunity" for companies who meet requirements specified in the Senate bill that include having received an attorney general's certification that their assistance was determined to be lawful.


Note that the key phrase "an attorny general's certification" is not in quotation marks. The existing law protects telecom companies if they have such a certification signed by the attorney general or deputy attorney general. The issue of amnesty only arises, because the telecom companies did something which Ashcroft and Comey would not certify as legal, but rather such that they said they would resign if it weren't stopped. The key issue related to amnesty is whether an assurance from the White House Council that the Attorney General agreed that the actions were legal is good enough, although existing law makes it clear that it isn't (hence the desire to change the law). This is not a detail. We now know that the assurances that the Attorney General knew of the activities and considered them legal were lies. The law is quite clear about signatures. It is impossible to believe that the telecom companies didn't ask for a letter which would immunize them (they have lawyers). It must be that the Bush administration failed to generate such a letter when asked and the telecom companies decided to break the law.

The paragraph which suggests that the Senate bill changes telecom liability not at all (based on words chosed by Ellen Nakashima and Paul Kane and not by Wainstein) must be incorrect.

Also, it was generally agreed that some FISA fix was needed, because the FISA court had decided that FISA warrants were required to intercept foreign to foreign communications passing through the USA on wires of optical fibers. Now

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.


That is, the Bush administration just admitted that a justification for revising FISA, which has been accepted as valid by just about everyone including liberal bloggers and other opponents of amnesty, was a false claim. For months many people (too many for links) believed that, a recent FISA court decision, had removed the words "wire and" from the exception to FISA court authority. Now that the Democrats are caving, there is no need to imply this any more.

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