Even with smoke and mirrors, it’s still FISA capitulation

According to The Hill, a new proposal from some of the more spineless members of the Congressional Democrats, have offered the Republicans a “proposal to break the logjam on electronic-surveillance legislation by allowing federal district courts to determine whether telephone companies seeking legal immunity received orders from the Bush administration to wiretap people’s phones.”

The new smoke and mirrors immunity was offered by flag-pin wearing House Majority Leader Steny Hoyer (D-MD) and supported by Sen. Jay Rockefeller (D-WV), chair of the Senate Intelligence committee. While the plan differs from the one championed by Sen. Kit Bond (R-MO), “in both cases, the courts would not decide whether those orders constitute a violation of the law, according to people familiar with the language.”

But, Sens. Chris Dodd (D-CT) and Russ Feingold (D-WI) are having none of this. In a 3-page letter (pdf) to their congressional colleagues, they write:

As we understand it, the [Republican] proposal would authorize secret proceedings in the Foreign Intelligence Surveillance to evaluate the companies’ immunity claims, but the court’s role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received “a written request or directive from the Attorney General or the head of an element of the intelligence community… indicating that the activity was authorized by the President and determined to be lawful.”

…

In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

Meaning — the current ‘compromised’ proposal is still telco immunity.

The New York Times reports that a Return to the old spy rules is seen as the renewal deadline nears. The deadline happens to be in August, which by chance, coincides with national ‘Bomb Iran‘ month.

If the Bush administration is forced to operate under the older, existing FISA law, they may not be able to legally do all the spying they want to do. “That prospect seemed almost inconceivable just a few months ago,” writes Eric Lichtblau of the NY Times.

The deadline is considered critical because of a series of secret one-year wiretapping orders that were approved last August under a controversial temporary wiretapping law. The law allowed the National Security Agency to use blanket court orders to focus on groups of suspected Qaeda terrorists based overseas…

In some cases, the government might simply be unable to establish in court why it suspected that a foreign target was connected to terrorism.

Everyone is blaming those pesky “civil libertarians who oppose the government’s broadened surveillance authority said a return to the more restrictive rules might be just what is needed to restore necessary checks on the government’s powers.” However, anonymous “government and Congressional officials said in interviews that they saw it as a dangerous step backward”. Backwards away from a police state, no doubt.

In addition to endangering America by leaving “worrisome gaps in intelligence”, anonymous Bush administration and Congressional officials claim a change to the law will negatively impact the telcos.

Telecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said. In some instances, the broad orders given to the companies starting last August cover tens of thousands of overseas phone numbers and e-mail addresses at one time, people with knowledge of the orders said.

And of course, the real reason why the Bush White House and the Congressional Republicans are willing to put the United States in danger is because senators like Dodd and Feingold have been blocking their plans to grant “phone companies immunity to lawsuits over their role in helping Mr. Bush’s warrantless wiretapping program”.

Attorney General Michael B. Mukasey has described the idea of reverting to the older standards of foreign surveillance as “unthinkable,” adding, “I still hope and actually think that it won’t happen.”

But the Republicans won’t abandon giving telcos immunity and some Democrats are “not wanting to risk reaching their national convention in Denver in August without a deal, lest that create an opening for the Republicans and Senator John McCain, their presumptive presidential nominee, to portray themselves as tougher on national security… just as the Democrats are nominating Senator Barack Obama.”

So, ultimately it comes down to Obama and the need for his leadership on blocking telco immunity. Does Obama wish for FISA capitulation done in his name? Or will Obama step up, as dday suggests, and “put an end to this today”?