October 10, 2007 1:35 PM PDT

Wiretap laws face new static

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Fredrickson says that an alternative would be to let the Protect America Act expire in February--which would still keep the 1978 FISA law in place--or to enact a different bill sponsored by Rep. Rush Holt, a Democrat from New Jersey, that the ACLU says would be more friendly toward civil liberties.

Marc Rotenberg, head of the Electronic Privacy Information Center in Washington, said the ACLU has a "legitimate" concern about blanket warrants.

"The problem is that the Fourth Amendment, particularly as translated to the wiretap statutes, presumes individualized suspicion, i.e. an actual target," Rotenberg said in e-mail. "It is this obligation that the administration wants to bury with the court's 'program review' or 'basket review.'"

Both the contentious Protect America Act and its controversial predecessor represent Congress' attempts at rewriting the 1978 Foreign Intelligence Surveillance Act, which the Bush administration has been arguing since last year is out of date. It generally requires that investigators obtain a warrant before snooping on communications pertaining to foreign intelligence or international terrorism when at least one party is located inside the United States.

"As much as everybody would like to talk about why the Protect America Act is doing what it's doing...we can't talk about that publicly because ultimately we'll ruin our sources and methods."
--Ross Feinstein, spokesman for the director of National Intelligence

The Bush administration has argued the process of obtaining individualized warrants for all of its targets is too time-consuming and at times impossible, given the agility of 21st century adversaries. It also has griped that the law is worded in such a way that requires investigators to get a warrant even for e-mails and phone calls between foreigners that happen to pass through wires and cables within the United States--a process that may be prohibitive because a large volume of the world's communications pass through switches that are technically on American soil.

The Democrats' new bill begins with language saying a warrant is not required for monitoring communications of any persons outside the United States, "without respect to whether the communication passes through the United States or the surveillance device is located within the United States."

Unlike the Protect America Act, the proposed Restore Act would force executive branch officials to seek permission from that court before eavesdropping on a person or group of people who may be communicating with people located in the United States.

Like the original FISA law, if the investigators are sure the communications they're tapping are occurring between foreigners located in foreign countries, they don't need a warrant. And in an emergency situation, executive branch officials would be allowed to authorize blanket snooping without a warrant for a 45-day period.

Yet there's still no requirement that the court orders target particular people, which civil libertarians believe cannot be reconciled with the Fourth Amendment's strict requirements. The bill merely requires those applying for the warrants to certify a number of generalities about the targets, including which "foreign power" is being targeted and that they're reasonably believed to be located outside the United States and are not U.S. persons--that is, an American citizen or lawful resident.

Shifting political dynamics
In addition to pressure from Republicans and the Bush administration, the sponsors of the Restore Act have to work with a band of 72 House Democrats (about one-third of the party's membership in that chamber) known as the Congressional Progressive Caucus.

That group released a statement laying out eight principles it expects any new surveillance laws to follow. Among them: FISA must remain the sole authority for gathering foreign intelligence, and "Congress should not grant amnesty to any telecommunications company or to any other entity or individual for helping the NSA spy illegally on innocent Americans."

The dynamics seem to be different on the Senate side. Senate Intelligence Committee Chairman John Rockefeller (D-W.Va.) is working with other committee members, including ranking Republican Kit Bond (R-Mo.), to craft a bill expected to be released next week, said Rockefeller spokeswoman Wendy Morigi.

"I can't really characterize the bill or negotiations at this point, as everything is on the table," Morigi said in e-mail.

Bush administration officials have emphasized the Protect America Act was urgently needed to bolster the nation's fight against terrorism. As Justice Department spokesman Dean Boyd put it in a recent interview, the law "has been of enormous value in reducing the intelligence gap that was identified by the director of national intelligence and other administration officials."

But so far, they have not offered specific examples supporting those claims. The one instance in which Director of Intelligence Mike McConnell publicly credited the Protect America Act's role in a terrorism investigation--that is, in a trio of arrests in Germany in August--turned out to be inaccurate.

"It's the intelligence community's job to protect sources and methods to be sure the intelligence community is getting the information we need," said Ross Feinstein, spokesman for the director of National Intelligence. "As much as everybody would like to talk about why the Protect America Act is doing what it's doing...we can't talk about that publicly because ultimately we'll ruin our sources and methods."

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Know whom you are voting for
As we struggle to know our domestic enemies. No, matter your political party affiliation, and setting aside your thoughts on issues. We all need to remember what it is to be an American Citizen. We need to make sure our elected representatives obey their Oath of Office and keep their Oath of Allegiance. See <a class="jive-link-external" href="http://*******.com/2znnvl" target="_newWindow">http://*******.com/2znnvl</a> Know whom you are voting for.
Posted by DrColes (53 comments )
Reply Link Flag
Blanket Coverage
If I come up with a scheme to collect personal information, for whatever slimy reason I might have, and cloak that scheme with a claim that I'm fighting terrorism, then it's all ok with GW?

Sure will make it easier to track down all those pesky Muslim-Americans and lock 'em up.

The real problem here is we continue to allow government agencies to violate the constitution and our individual rights, and we can't even bring them to task. Sure, give the telecom companies immunity, but grant us the right to sue the government agencies that strong-armed those companies for the information.

We can not demonstrate the superiority of democracy over other, more repressive forms of government by allowing our rights to be eroded in the name of the war on terrorism.

We can not defend our freedom by eliminating it!
Posted by Pete Bardo (687 comments )
Reply Link Flag
Don't kid your self Democrats will spy
Hillary and company wants to keep all the records when a background check is done for buying a gun. Thats spying on normal non criminal citizens. Why would you think they would not want to do spying of other kinds. Both sides will spy at first to keep us safe then we will end up like England with video camera every single area in all the major cities. You can't even drive around with out getting a ticket in the mail. Now thats big brother watching you. If you drive down the same street too many times in one day you get a ticket in the mail for congestion.
Posted by ferretboy88 (676 comments )
Link Flag
I second that !
[quote] -We can not defend our freedom by eliminating it! - [end quote]

I could not agree more !

What the hell has happened to our People that no one will stand up for our Country and all it has ever stood for ?
The real enemy seems to be within.
Posted by bruceslog (112 comments )
Link Flag
minor issue?
I take offense to your dismissal of civil litigation against telecommunication companies, that may or may not have committed illegal acts, as some kind of "minor issue." You do your reader's a disservice projecting this type of propoganda. Please be more open and fair with your "reporting."
Posted by awaterma (1 comment )
Reply Link Flag
The bulk of a 1,700-word article was about this issue, so I'm not sure why anyone would think *I* believe it's minor.

All the lede said was that to some people it might "seem" to be minor. And then we explained why it wasn't. You should read beyond the first paragraph.
Posted by declan00 (848 comments )
Link Flag
Can anyone please tell me why in the world we are allowing this to
happen? This is like watching the lobster boiled alive.. We are
handing over our liberty to the gov't.. How insane is that.. Check
Ron Paul for president at RonPaul2008.com. When you trade liberty
for security, you lose both.
Posted by mac5000 (1 comment )
Reply Link Flag
How (Not) to Do FISA Reform
Here is a letter I just sent to Rep. Albio Sires (D-NJ), my elected

Dear Rep. Sires,

I am a voter in your district, and I am writing in regards to H.R.
3773, the RESTORE Act. I urge you not to support this legislation
unless it meets two key conditions.

First, the bill must not be amended to grant immunity for
telecommunications providers who cooperated with the Bush
administration?s illegal wiretapping program. Such a grant of
immunity will cut important court cases off at the knees before
we can learn the full nature of the administration?s spying. In
short, you must not reward the administration for their blatant
disregard for the law of the land, including the very balanced
Foreign Intelligence Surveillance Act, and you must not reward
common carriers for their willingness to join in the illegalities.
Bush?s threat to veto the legislation without such a grant of
immunity only confirms concerns that the law has been broken.

Second, do not approve the bill without all of its current
protections for civil liberties. In particular, insist that the bill
retain or strengthen the following provisions:

? Section 5, requiring oversight and periodic audits of
surveillance activities
? Section 7, requiring the Department of Justice to conduct a
timely audit of all warrantless surveillance programs since
September 11, 2001
? Section 8, requiring record keeping of all surveillance of United
States persons
? Section 10, reiterating FISA as the sole legal justification for
the gathering of electronic surveillance

Not incidentally, the Bush administration?s willful disregard for
FISA is an impeachable act if ever there was one, but sadly it is
not the only one committed in the past seven years. Speaker
Pelosi may consider impeachment to be off the table, but I do
not, and if you and your colleagues do not stand up for the
Constitution, I fear for the future of our democracy.

As cross-posted on Shouting Loudly:

<a href="#">http://www.shoutingloudly.com/
Posted by ShoutingLoudly (22 comments )
Reply Link Flag
They Broke the Law
The communications companies in question broke the laws and the Constitution of the United States at the time of occurrence. No company or entity should ever be allowed to break such laws and be retroactively granted a blind blanket immunity for such action. Are you listening, Congress ?
And why does Mr Bush and his administration insist on holding up new laws with threats of vetoes in and effort to bully our Congress into granting these companies immunity ? Does Mr Bush hold a large share of AT&#38;T stock or something ?
Non of these people are doing their sworn duty to uphold the Constitution of these United States.
We need someone who is capable of getting them all fired from their jobs to speak up now.
As a constituent, I place my vote.. they are all fired, effective immediately.
Posted by bruceslog (112 comments )
Reply Link Flag

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