Letters to the Editor

• Kris weighs in on FISA and the new bill [H.R. 6304]

  [Read the article: What Nancy Pelosi, Steny Hoyer and Fred Hiatt mean by "bipartisanship"]
  [Read more letters about this article: Here]

  Many thanks to Marty Lederman and Jack Balkin for asking David Kris to post about the House FISA deal today and tomorrow. I was very much hoping to see an analysis from Kris about the new bill - he can address the non-immunity provisions with the sort of expertise and clarity that few other non-government actors can.

  http://balkin.blogspot.com/2008/06/guide-to-new-fisa-bill-part-i.html

  To understand this new legislation, I think you need to appreciate three matters:

  .

  (1) some elements of the current version of FISA, which are what is at stake in the (soon to be concluded) debate over modernizing the statute;

  (2) the main legal and operational arguments for and against modernizing FISA; and

  (3) the Bush Administration's actual efforts to modernize electronic surveillance, beginning with the NSA's Terrorist Surveillance Program (TSP) in 2001, and ending with the new legislation.

  Even in abbreviated, non-technical form, these three matters require some heavy lifting, so I'll cover the first two today, and then address the third in a separate post that will appear tomorrow. Most of what I say in both posts comes wholesale from a previously published whitepaper and my book, both of which discuss these issues in much greater detail. (This allows me to avoid separate prepublication review of these posts; the government's reviewers are usually very responsive, but it's tough for them to keep up with the pace of the blogosphere, especially on a Friday night.)

  [snip]

  Third and finally, there is the problem of e-mail. Nearly two years after launching its campaign for FISA modernization, the government publicly stated that FISA poses a problem for surveillance of e-mail. Here the evidence is clear: FISA regulates surveillance of e-mail more than it regulates surveillance of telephone calls. In particular, while FISA does not regulate (and has never regulated) surveillance of a foreign-to-foreign telephone call – e.g., a call from Paris to London – even if monitored inside the United States, it does regulate surveillance of a foreign-to-foreign e-mail message if acquired from electronic storage inside the United States. Most knowledgeable observers agree that this is an anomaly in need of correction – there is no substantial debate about this.

  As it turns out, however, changing technology and increasing globalization make it very difficult to devise a narrowly tailored legislative solution to this recognized anomaly.

  Much more at the link, with specifics about the new bill due tomorrow.

  As to the Senate:

  The Senate adjourned at 12:49 p.m. Friday, while all eyes were on the House. However, it didn't adjourn without making provision for accepting, and placing on the calendar, by unanimous consent, without objection, the FISA bill. Reid asked for, and received, unanimous consent to hold the record open in the Senate past adjournment (until 2 p.m.) to receive the soon-to-be-passed bill from the House. No one objected to the bill going straight to the calendar, without referral to committee, or otherwise.

  First:

  Mr. REID. Mr. President, I ask unanimous consent that when H.R. 6304 is received from the House, it be placed on the calendar.

  .

  The PRESIDING OFFICER. Without objection, it is so ordered.

  http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5947&position=all

  Then:

  I further ask unanimous consent that the Record remain open [after the Senate adjourns at 12:49 p.m.] until 2 p.m. today for statements, cosponsors, and bill introductions.

  .

  The PRESIDING OFFICER. Without objection, it is so ordered.

  http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5947&position=all

  Accordingly:

  Under authority of the order of the Senate of June 20, 2008, the Secretary of the Senate, on June 20, 2008, during the adjournment of the Senate, received a message from the House of Representatives, delivered by Mrs. Cole, one of its reading clerks, announcing that the House has passed the following bill, in which it requests the concurrence of the Senate:

  .

  H.R. 6304. An act to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

  http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5940&position=all

  The following bills were read the first and second times by unanimous consent, and placed on the calendar:

  .

  H.R. 6304. An act to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

  http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5941&position=all

  cboldt has more here (scroll down):

  http://cboldt.blogspot.com/2008/06/groundhog-month-again-then-recess-again.html

  It appears that this failure to object (Dodd was in the Senate chamber on Friday...) reduces by two days the time before the bill would have been placed on the Calendar (or referred to committee) if one Senator had objected. Objection which is particularly warranted in this case due to the undemocratic, top-down process of the dealmaking, the secrecy until just this Thursday concerning the deal's specifics, and the enormous import of the proposed action.

  It wasn't good enough for the 129 in the House [those Americans who cast votes to support the Constitution, which of course cannot support itself] to go along to get along with the undemocratic process imposed by party leadership, without any attempt at obstruction or public protest beyond 15 minutes of floor comments, and it's not good enough for Russ Feingold, Chris Dodd and all those who know better in the Senate, to let this bill fly onto the floor under Harry Reid [who's following Rockefeller's orders, as Reid is the type to praise a mobster's golf game if it will make the powerful thug smile indulgently on him] without objection, as though it's just another renaming of a post office...

  Permalink Saturday, June 21, 2008 08:59 AM