A central reason for the rush to push FISA legislation through Congress was revealed by House Minority Leader John Boehner (R-OH) during an appearance on Fox News earlier this week when he made reference to a secret legal opinion declaring “a key element of the Bush administration’s wiretapping efforts illegal.” “There’s been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people”...In the decision, a “judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States.” http://thinkprogress.org/2007/08/03/fisa-battle

This surveillance gap had been identified at least 11 months ago. A provision to address it was in several bills Specter proposed or supported and he worked closely with the WH on these last year:

(a) In General- Notwithstanding any other provision of this Act or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), no court order shall be required for the acquisition through electronic surveillance of the contents of any communication between one person who is not located within the United States and another person who is not located within the United States for the purpose of collecting foreign intelligence information even if such communication passes through, or the surveillance device is located within, the United States.

Introduced by Feinstein on September 8, 2006 (also H. R. 6056 on September 12 – Harman) http://thomas.loc.gov/cgi-bin/query/z?c109:S.3877:

This language is also found in all of the following:

S.3001 (Feintstein/Specter) Reported with an amendment on September 13, 2006 http://fas.org/irp/congress/2006_cr/s3001.html#s3001rs

Introduced by Specter on November 14, 2006 http://thomas.loc.gov/cgi-bin/query/z?c109:S.4051:

Introduced by Specter on January 4, 2007 (also H. R. 11 on same date – Schiff/Flake) http://thomas.loc.gov/cgi-bin/query/z?c110:S.187:

Introduced by Feinstein & Specter on April 16, 2007 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s1114is.txt

Many questions, but here's one for the president: Why weren't you concerned about this gap at any other time during the past 11 months? After all, on September 5, 2006, you said:

Five years after our nation was attacked, the terrorist danger remains. We're a nation at war -- and America and her allies are fighting this war with relentless determination across the world.

Citing Four-Day Old Surveillance Law, Bush Seeks Dismissal of Lawsuit Challenging NSA Spying

The lawsuit was brought by lawyers defending Guantanamo Bay prisoners. The lawyers and others alleged the threat of surveillance is chilling their First Amendment rights of speech, and their clients' right to legal representation.

Justice Department lawyers are asking (.pdf) U.S. District Judge Vaughn Walker to toss the case, citing the new law -- which says warrantless surveillance can continue for up to a year so long as one person in the intercepted communications is reasonably believed to be located outside of the United States. http://blog.wired.com/27bstroke6/2007/08/citing-four-day.html

Background on CCR v. Bush: http://tinyurl.com/h22n5

This is all really confusing and will take Glenn and others to sort out, but just reading some of the motion that Wired linked to, these stand out to me, anyway:

Indeed, now that Congress, in returning to the balance it generally struck when it enacted FISA in 1978, has expressly clarified that surveillance directed at individuals reasonably believed to be outside the United States does not constitute electronic surveillance as defined in FISA, Plaintiffs cannot claim that any alleged surveillance directed at individuals outside the United States violates FISA, the Administrative Procedure Act, or the separation of powers doctrine.

anonymousliberal.com wrote about the above today.

Also, there seems to be some kind of coverage for whatever programs this new law covers that were in effect at the time the update was enacted:

Finally, the statute expires 180 days after the date of enactment, although authorizations for the acquisition of foreign intelligence information pursuant to the statute shall remain in effect until their expiration, and the Government has the option during the 180 days to continue to seek the FISC’s authorization or reauthorization of surveillance under the provisions of FISA as they existed on the day before enactment of these amendments.

Wired's Ryan Singel and David Kravets are live blogging it.

http://blog.wired.com/27bstroke6/2007/08/nsa-hearing-ope.html

Refresh often.

Senate Judiciary Committee passes update to Foreign Intelligence Surveillance Act

Committee vote splits along party lines, and full Senate still must consider bill

http://www.cnn.com/2007/POLITICS/11/15/fisa.senate/

CNN: The committee is expected to vote later Thursday on a controversial question of whether to grant retroactive immunity to the telecommunication companies that cooperated with the National Security Agency's warrantless surveillance program.

Transcript via TPMmuckraker:

http://www.tpmmuckraker.com/archives/004918.php

Dodd's internet director has posted a diary with information and updates here: http://www.dailykos.com/story/2007/12/17/13017/967/757/423334

Less than an hour before the debate is scheduled to begin, the Nevada Supreme Court has ruled that MSNBC is not required to include candidate Dennis Kucinich in its scheduled Democratic presidential debate.

The court overturned Monday’s ruling by a Nevada district court judge that NBC Universal had breached a contract with Mr. Kucinich when it revoked an invitation to the debate.

The ruling will likely be described as a First Amendment victory by the news organization. Lawyers for NBC had argued that it had a right, as a privately owned network, to determine who to invite to the debate.

http://thecaucus.blogs.nytimes.com/2008/01/15/nbc-wins-battle-over-debate/

Legal documents here: http://www.nvsupremecourt.us/highProfile/index.php?caseID=18