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• Wednesday, August 8, 2007 02:43 PM

  The "gap"

  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.

  —EJ Read EJ's other letters
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