[Infowarrior] - Wiretap Compromise in Works

[Richard Forno]

Wiretap Compromise in Works
FISA Update May Hinge On Two Separate Votes

By Ellen Nakashima and Paul Kane
Washington Post Staff Writers
Tuesday, March 4, 2008; A03

http://www.washingtonpost.com/wp-dyn/content/article/2008/03/03/AR2008030302
814_pf.html

House and Senate Democratic leaders are headed into talks today that they
say could lead to a breakthrough on legislation to revamp domestic
surveillance powers and grant phone companies some form of immunity for
their role in the administration's warrantless wiretapping program after the
Sept. 11, 2001, terrorist attacks.

A senior House Democratic aide said a bill could be sent to President Bush
as early as next week. But significant issues remain, including those
surrounding immunity, said Wyndee R. Parker, general counsel of the House
Permanent Select Committee on Intelligence.

Parker, who said she hopes the House can take up the compromise legislation
as early as this week, said a resolution has been delayed partly by the need
for all members of the House Judiciary Committee to gain access to the
letters and other relevant documents sent to the phone companies by the
administration requesting their assistance.

The House Democratic leadership demanded such access before they would
contemplate immunity, and the administration granted full access last week.
Parker spoke at a breakfast meeting sponsored by the American Bar
Association yesterday.

Assistant Attorney General for National Security Kenneth Wainstein, speaking
at the same meeting, said that key issues surrounding the legislation had
been hashed out in a "long and tedious" but "healthy" process, aimed at
updating the Foreign Intelligence Surveillance Act (FISA).

Aides said House Majority Leader Steny H. Hoyer (D-Md.) has been polling his
party's divided caucus the past few days about the immunity issue, with the
liberal camp pushing to do nothing and the moderate wing supporting a
provision in Senate-passed legislation granting immunity for the
telecommunications industry.

Highlighting the party's struggle to heal its internal fractures, today's
meetings will involve Democratic staff from the House and Senate
Intelligence and Judiciary committees, the House Democratic leadership, and
then the House Democratic caucus. The dilemma faced by Democrats is that
Republicans and the administration oppose any bill other than the measure
passed by the Senate that includes full retroactive immunity for the
telecommunications companies.

"This is not amnesty," Wainstein 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.

A group of several dozen moderate to conservative House Democrats, known as
"Blue Dogs," have pushed Hoyer and House Speaker Nancy Pelosi (D-Calif.) to
approve the Senate bill. Some aides on Capitol Hill were discussing the
potential for the House passing the Senate version but breaking it into two
separate votes: one on the portion of the bill that deals with revising FISA
provisions and a second on the immunity measure.

This procedural move would allow many Democrats to vote against immunity but
still make its approval all but certain since almost every Republican and
some centrist Democrats would vote in favor.

At the breakfast yesterday, Wainstein highlighted a different problem with
the current FISA law than other administration officials have emphasized.
Director of National Intelligence Mike McConnell, for example, has
repeatedly said FISA should be changed so no warrant is needed to tap a
communication that took place entirely outside the United States but
happened to pass through the United States.

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.

Privacy advocates have raised concerns that the Senate bill contains a
provision that would allow the attorney general to erect a new barrier to
future privacy cases brought under the nation's foreign intelligence
surveillance law.

Contrary to current practice, the Senate bill would halt such lawsuits if
the attorney general certified that the assistance provided by the telecom
carrier was lawful. The only check on that certification would be a court
review as to whether the attorney general "abused" his discretion, which
experts said yesterday was the lowest possible standard of judicial review.

"This provision is yet another example of the executive branch 'just trust
us' mentality when it comes to intelligence matters," said Kevin Bankston,
senior staff attorney at the Electronic Frontier Foundation.

A key congressional aide said that the issue is one that must be reviewed
carefully, and a balance must be struck between appropriate court review and
avoiding "protracted litigation."