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Surveillance State. Congressional Quarterly's Tim Starks:
A knowledgeable friend comments, "It's worse than Nixon because it extends [the argument that if the president says it's legal, it's legal] to cover non-government, private actors. Nixon limited himself to government actors."A final deal has been reached on a rewrite of electronic surveillance rules and will be announced Thursday, two congressional aides said.
The aides said the House is likely to take up the legislation Friday.
The bill would rewrite of the Foreign Intelligence Surveillance Act (FISA, PL 95-511).
On Wednesday, Majority Leader Steny H. Hoyer, D‑Md., had said negotiators were working on a bill that would be “significantly better” than a White House-backed, Senate-passed bill (HR 3773) that has support from some House Democrats.
As of Wednesday, sources said the new bill would allow a federal district court to decide whether to provide retroactive legal immunity to telecommunications companies being sued for their role in the Bush administration’s warrantless surveillance program.
Under the prospective deal, the secret court created by the original law would get to review, in advance, the process by which the administration chooses foreign surveillance targets who may be communicating with people in the United States.
One source said the federal district court deciding on retroactive immunity would review whether there was “substantial evidence” the companies had received assurances from the government that the administration’s program was legal.
A Senate Intelligence Committee report on an earlier version of the legislation detailed how the companies had received such assurances from the Justice Department and the White House.
More from the WSJ's Siobhan Gorman and Sarah Lueck. "After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders have agreed to a bipartisan deal that would be the most sweeping rewrite of spy powers in three decades." The House is set to vote on it Friday.
Update: Here's the bill (.pdf).
Senate Intel committee chairman office sends a fact sheet, among the key points:
More from Steve Benen, and the Post.Prospective Immunity. The Act ensures that the cooperation shall be in accordance with law, by providing an opportunity for the companies to challenge in court the lawfulness of directives to them and for the Government to compel compliance through judicial proceedings. Companies that act in accordance with directives provided under the law shall be protected against future liability.
Retroactive Immunity. The Act provides standards and procedures for liability protection for electronic communication service providers who assisted the Government between September 11, 2001 and January 17, 2007, when the surveillance program was brought under the FISA Court.
A district court hearing a case against a provider will decide whether the Attorney General’s certification attesting that the liability protection standard has been met and is supported by substantial evidence. In making that determination, the court will have the opportunity to examine the highly classified letters to the providers that indicated the President had authorized the activity and that it had been determined to be lawful. The plaintiffs and defendants will have the opportunity to file public briefs on legal issues and the court should include in any public order a description of the legal standards that govern the order.
The immunity provision of the Act does not apply to any actions against the Government for any alleged injuries caused by government officials. Nor does the immunity provision involve any statement by the Congress, pro or con, on the legality of the President’s program.
Inspector General Review. The Act directs the Inspectors General of the Department of Justice, the Office of the DNI, the National Security Agency, and the Department of Defense to complete a comprehensive review, within the oversight authority of each IG, of the President’s Surveillance Program. In no later than a year, the Inspectors General shall submit a report to Congress; the report shall be unclassified but may include a classified annex. In light of the dismissals of cases that may result from implementation of the immunity title, the IG review will be an especially important vehicle for reporting to Congress on the facts of the President’s program, as well as to the public, to the extent classification permits.Multiple Levels of Oversight. The Act provides for multiple levels of oversight both within the Executive Branch, including by Department of Justice and Intelligence Community Inspectors General, and in regular reporting to both the Congress and the FISA Court.
Sunset. The Act will sunset at the end of 2012 ensuring that the next Administration, together with the Congress, will address whether the Act should be made permanent or modified based on experience.
Update: The ACLU declares the "Hoyer/Bush bill" unconstitutional. The group's Caroline Frederickson:
... "This bill allows for mass and untargeted surveillance of Americans’ communications. The court review is mere window-dressing – all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole – ‘exigent’ circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all.
"The Hoyer/Bush surveillance deal was clearly written with the telephone companies and internet providers at the table and for their benefit. They wanted immunity, and this bill gives it to them.
"The telecom companies simply have to produce a piece of paper we already know exists, resulting in immediate dismissal. That’s not accountability. Loopholes and judicial theater don’t do our Fourth Amendment rights justice. In the end, this is politics. This bill does nothing to keep Americans safe and is a constitutional farce.
"The process by which this deal has come about has been as secretive as the warrantless wiretapping program it is seeking to legitimize."