Monday, January 28, 2008

Fireworks today over FISA

Presidential candidate Hillary Clinton to vote against Cloture today. Now too much should not be read into this, because Senator Clinton believes in a much more expansive security and police state than most people in the US do. But that's sort of the reality of politics: often leaders have to be persuaded to do the right things for the wrong reasons. We aren't going to like the final bill on FISA, but at least it might be a tolerable evil which can be dealt with, rather than an intolerable insult.

Americans don't want what we have in FISA, and we don't want more. The EFF is sponsoring Stop the Spying as a way of showing just how many ordinary people don't want to live in a police state.

The vote is at 2:30 SLT, or more exactly 4:30 PM Eastern time, in Washington DC. Since the State of the Union address is tonight, there is no reason for any member of the Senate to miss this vote. "No" votes on cloture are symbolic, it takes 60 affimrative votes to invoke cloture. But they are important symbols. This leaves Seantor Barak Obama as not having committed to be there for this crucial moment.

Senator John McCain has already indicated that retromunity, warrantless data-mining and reverse targeting are fine with him, and that ramming this bill through from a minority position is fine with him.

It is important to remember that the FISA act, passed in 1977, does not expire on February 1st, and under the law any current investigations that the Protect America Act granted the authority continue for another 6 months after February 1st. I'm not comofrtable with a rubber stamp secret court known as FISA. But almost anyone who plays in second life should be uncomfortable with the idea that the President's personal lawyer can simply call up and ask for your phone and internet records, read your email, wiretap your phone and look into any messages that you have sent by any means. All with no review.

That's what happened before, and the reason there is such pressure from President George Bush to force this through is to prevent anyone from ever being able to hold anyone accountable for this in any way.

According to a source in the Majority Leader's office, it is very likely that cloture will fail, and that there will be more debate on this bill. However, there is on consnsus on how to go forward on amending the Intelligence Committee's bill, or whether this version of the bill will be put to a vote at all. The Judiciary committee's bill is better. That means that even after the cloture vote, the real fight to prevent retromunity will continue, and may well reach a true showdown in that OK Corral arhetype, where only one side is left standing. President Bush has said he will veto extending the PAA for 30 days, he has said that he will veto the House bill already passed. This means that the PAA will, in the language of the law "sunset," because there is absolutely no time to create a bill agreed to by both House and Senate. Remember that both houses have to pass the exact same language. This means, in the usual course of things, that both chambers pass versions of bills, and then the negotiators between them create a final bill, which is then voted on with little debate.

Key to this is that right now it is not clear whether amendments will be subject to filibuster. It might take 50 votes to pass an amendment, it might take 60. Nobody knows, because there is no agreement. There is also another procedural hurdle. Normally it takes unanimous consent to offer amendments to a Senate bill on the floor. This is usually pro forma, but in theory any Senator can stop amendments from being offered, it's just not usually done unless a Senator is really upset and wants to either force a vote on a bad bill, or stop a filibuster by amendment. Right now Mitch McConnell, the Republican minority leader, has said he will use this to stop any new amendments from being offered to the Rockefeller-Bond bill, which is the one that came out of the Senate Intelligence Committee. Kit Bond, Senator from Missouri, is the ranking Republican on that committee, as Jay Rockefeller (D-WV) is the ranking Democrat from the majority.

Since there is no time to do this in this case, Bush is trying to force one version of the bill to be accepted by both houses. He's doing that with other things as well.

So what should people calling their representative ask for? According to the Booman Tribune the ACLU says that three things should be a priority, after stripping Title II's retromunity, but are not currently up for consideration:

1. Prohibiting "Bulk Collection"
Senator Feingold successfully offered this amendment in the Senate Judiciary Committee to prohibit "bulk collection" -- the collection of all international communications into and out of the U.S to a whole continent or even the entire world. Such collection without a foreign intelligence purpose would be constitutionally suspect and would go well beyond what the government has says it needs to protect the American people. Yet, the Director of National Intelligence testified at a Senate Judiciary Committee hearing that the Protect America Act – which was enacted last year -- permits "bulk collection." The amendment makes clear that bulk collection is not authorized by requiring the government to certify that it is collecting the communications of foreign targets from whom it expects to obtain foreign intelligence information.

2. Use Limits Amendment

This amendment, which was part of the Senate Judiciary Committee version of the FISA bill, gives the FISA Court discretion to impose restrictions on the use of information about Americans that is acquired through procedures later determined to be illegal by the FISA court. This enforcement mechanism is needed because the government can implement its procedures before it has to submit them to the FISA Court for review to determine whether they are reasonably designed to target people overseas rather in the United States.

3. Prohibiting "Reverse Targeting"

Senator Feingold successfully offered this amendment in the Judiciary Committee to add a meaningful prohibition on “reverse targeting,” a practice by which the government gets around FISA’s court order requirement by wiretapping an individual overseas when it is really interested in a person in the U.S. with whom that supposed foreign target is communicating. The Director of National Intelligence has agreed that “reverse targeting” is unconstitutional. Senator Feingold’s amendment requires the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American.

In simple terms, PAA should not be used to go over (mass targeting), around (no reverse targeting), or through (no getting evidence security and backing that in illegally to criminal cases) minimal constitutional protections, and they are minimal, given by the original 1977 FISA act, and here's a phrase I'm giggling as I can finally drop it, because the gov-jocks I know use it all the time, "as amended."

Personally, I think the law should be allowed to lapse, and sink into the sands of infamy along with other stupid moves by hysterical politicians. If there are specific loopholes in FISA that need fixing, then let us have a minimal bill that fixes them, rather than "grinchmas tree" where all sorts of evil is loaded on to a bad idea.

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