FISA Week

There's been a lot of confusing news and rumors surrounds the, um, "modification" of FISA known as the Defective America Act, otherwise known as PAA or "Pah!." There have been some twists and turns of late but with, I believe, a common thread, so let me run down that was the week that was for FISA.

Last week, in what I suspect was a trial balloon, the story started circulating that the House Democratic misleadership was looking for a way out, a way to give the White House what it wanted while giving liberal members a way to say they fought against immunity down the line. The idea was simple: Take up the Senate bull (that's not a typo - well, actually it was but it seemed so appropriate I decided to leave it) but break it into two parts: one on wiretapping powers, the other on immunity. If both parts passed, they would be recombined into a single bill.

The sad part is that immunity likely would pass - but doing it this way would give Dims more interested in political posturing than personal privacy some CYA material by being able to vote against the immunity provision while allowing the whole bill to pass. Writing at CBSNews.com, Kevin Drum called the proposed process "finally decid[ing] to do the obvious" before saying the "whole thing" was a "charade from the beginning" and adding that

[t]his is nothing for us anti-immunity folks to be happy about, but the votes are what they are. If there's a majority in favor of immunity, then they should call the roll and let 'em vote.

So hey, just like on Iraq, it's the "we don't have the votes" whine, in this case the votes to prevent corporations from being handed Get Out of Jail Free cards and the White House from being able to conceal, perhaps forever, its own criminality. The Dums spent years in the minority blubbering "We can't do anything, we don't have the votes." Now they're the majority and, if you didn't actually do a head count, you'd swear they are still the minority because they keep singing the same song. Well, Dims, perhaps on this those among you who actually care about things like Constitutional rights and civil liberties are the minority. But what you have now that you didn't before are the levers of power in Congress - and you refuse to use them.

(You'll notice, by the by, that Drum doesn't seem too upset by the prospect of immunity. That's perhaps to be expected, as he was the one who said last month that he was opposed to immunity but wasn't "hellbent" on it because he really didn't care if the preznit broke the law so long as it was "an emergency" and he didn't do it for "too long." This is what passes for "realism" among "liberal" circles these days.)

This rumor was followed shortly by House Intelligence Committee chair Silvestre Reyes saying on Sunday that he expected there would soon be a compromise bill. He didn't say the "compromise" would include immunity provisions but said he was

open to that possibility after receiving documents from the Bush administration and speaking to the companies about the industry's role in the government spy program.

"We are talking to the representatives from the communications companies because if we're going to give them blanket immunity, we want to know and we want to understand what it is that we're giving immunity for," he said. "I have an open mind about that."

Reyes, let's remember, was the one who just three weeks ago wrote what I called a "blistering" letter to Bush in which he declared that "I, for one, do not intend to back down - not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear." But that was then.

The reaction to these feelers among immunity opponents - who just might possibly actually think immunity is of more than symbolic importance, more than a matter of what might be in campaign commercials - was, it appears, not favorable and the predicted compromise didn't appear immediately. So on Wednesday Politico said Congress

remains deadlocked on the issue, with a divided Democratic caucus scrambling to find a solution and Republicans once again boycotting talks

on developing "compromise" legislation to determine just how much more power is to be given to the WHS* beyond that already conceded in the past. Just how pathetic the Dims are can be seen in the response to the GOPpers refusing to even talk about the bill. Instead of blasting them as narrow-minded obstructionists who regard Bush quite literally as a king and who are disgracefully eager to run away from their responsibilities as legislators, we get this mewling whine:

“It is very sad, because the Republicans and the White House are refusing to participate,” said Senate Intelligence Committee Chairman John D. Rockefeller IV (D-W.Va.). “We need to know what they think.”

You already know what they think, fool. They say flat out that there is "no give" in their position; poster girl for dumb blondes Dana "Cuban missile crisis? Was that the Bay of Pigs thing?" Perino even said she didn't see the point of such a meeting. That is, they think "You know you're going to wimp out eventually, sucker, so why not just shut up and do it now and stop wasting our time?" And too many Dems seemed determined to find a way to do that so long as they didn't actually have to admit it's what they were doing.

But not all of them, which may have been a good part of the reason for Wednesday's statement by House Majority Leader Steny Hoyer that

the House will not take up an electronic surveillance measure this week, further delaying any decisions on the controversial measure.

Hoyer said in his weekly press conference that he hoped to wrap up work on an update to the Foreign Intelligence Surveillance Act; “towards the end of this week or the beginning of next week.” ...

Although Democratic leaders insist they are working feverishly to iron out their differences, one House member - speaking on the condition of anonymity - suggested it could be a long time, if ever, before the bill was brought for a vote.

“A lot of people think the politics of doing nothing on this issue are very good for both sides of the political spectrum,” they said.

Which brings us to Thursday's interesting developments.

For one thing, Arstechnica.com reported that a computer security analyst named Babak Pasdar had gone public with whistleblower accusations that

a major mobile telecommunications carrier has a built-in backdoor that provides an undisclosed third-party with unfettered access to its internal technical infrastructure, including the ability to eavesdrop on all calls through its network. In an affidavit that describes the circumstances and basis for the allegations, Pasdar provides evidence which could indicate that the FBI is on the other side of the secret line, engaging in warrantless surveillance of mobile communications.

Pasdar discovered the backdoor when he was brought in to help with a large-scale network security hardware migration. He was told to not touch a so-nicknamed "Quantico Circuit" which had no firewalls and no access controls - a degree of freedom even the internal offices and systems of the carrier don't have. When he pressed the matter, he was threatened with loss of his contract if he didn't just shut up about it.

Pasdar won't name the company, but the article adds that Wired magazine notes that one telcom lawsuit charges that Verizon

has engaged and maintained and still does maintain a high speed data transmission line from its wireless call center to a remote location in Quantico, Virginia, the site of a U.S. government intelligence and military base

as well as being the home of the FBI Academy.

In response, three powerful members of the House Energy and Commerce Committee - John Dingell, chair; Ed Markey, who chairs its Subcommittee on Telecommunications and the Internet; and Bart Stupak, who heads the Subcommittee on Oversight and Investigations - sent a "Dear Colleague" letter noting Pasdar's revelations and how they "echo" the charges by former AT&T technician Mark Klein, who earlier described a "secret room" in an AT&T facility. The three wrote that members of the House must not "vote in the dark" on immunity. They also said, interestingly, that

Mr. Pasdar's allegations are not new to the Committee on Energy and Commerce, but our attempts to verify and investigate them further have been blocked at every turn by this Admnistration.

Surprise, surprise. It does indicate, though, that Pasdar has been vetted by Committee staff and is a reliable source, not just some conspiracy-loving flake. By the way, Dingell, Markey, and Stupak are the same three who sent another "Dear Colleague" letter opposing immunity a month ago.

Also on Thursday, Nancy Pelosi threw another little twist into the saga. Paul Kiel, writing at TPMMuckraker, said that in a conference call with bloggers on that day, Pelosi insisted that "exclusivity is the issue," that is, any final bill must contain a provision that FISA is the "exclusive means" by which the government spies on electronic communications. That is, doing it any other way would be illegal.

Pelosi says that she "absolutely" opposes retroactive immunity for the telecoms, but that she "didn't want the fight to be so focused there that we neglect exclusivity."

(Sidebar: She also said that the House leadership was "at the mercy of the 17 or 18 Democrats in the Senate who are voting with the Republicans on this." Another chorus of the "We don't have the votes" song.)

Kiel wonders if the GOPpers would support a bill with exclusivity and if Shrub would sign it. But considering that the Bush gang has already at the very, very least evaded if not outright ignored FISA in order to conduct illegal surveillance and since it's easy to see Bush just issuing one of his infamous "this law doesn't apply to me" signing statements, the better question is - here's that common thread coming up again - if this is just a different way for the Dems to back down while trying to claim it's actually a victory.

Glenn Greenwald certainly thinks so. He wrote on Friday that

[a]s has been expected for a week now, the House Democratic leadership has prepared and is now currently circulating (while trying very hard to keep it confidential) their so-called "compromise" FISA bill. Their soon-to-be-unveiled bill, unsurprisingly, is designed to give the White House exactly what it has demanded, with only the smallest and most inconsequential changes

such as a somewhat shorter sunset time; an audit by the DOJ Inspector General; the inclusion of Pelosi's "exclusivity," about which Greenwald has the same thought as I do; some sort of 2009 review; and a few definition changes.

Greenwald, who based his description on Congressional sources, notes that the proposal does not include immunity, but suspects the idea is that when the bill goes back to the Senate, immunity will be added back in, after which the bill goes back to the House for an up-or-down vote - after which the everything-Bush-wanted bill goes to our only president for his signature.

That was hinted at Thursday night, when, according to Politico, Pelosi

signaled ... that she is ready to fall back on the strategy of “ping-ponging” alternatives back and forth between the two chambers. This risks more stalemate but also could provide a path for a final resolution of the issue before lawmakers go home for their spring recess next Friday.

The first title of the modified bill is expected to reflect proposed compromises already reached with Senate negotiators regarding the surveillance program. But the second seems sure to reflect continued differences over liability for telecommunications companies that cooperated with the surveillance program the president approved in the wake of 9/11. ...

However, with the immunity issue still unresolved, no one expects the House proposal to be the final word. One possibility is that the Senate could give its blessing to the first title and then insist on concessions in the second. That could set up a situation making it easier for the House to claim a partial victory and allow final passage.

In other words, a variation on the original rumor, a way - again - for the Dums to lose while claiming they won. I admit the process outlined raises a number of questions for me, among which is the obvious one of why, apparently, the Senate gets to make amendments to the bill but the House doesn't. I'm sure I'd be told that was part of the deal. (I'd then like to ask why the House leadership would agree to such a dumb deal that makes them a subservient body to the Senate and also why the House never said to Bush and his Senate ass-lickers - with Jay Rockefeller among those with his tongue furthest out - "What do you mean, we have to take up the Senate bill? We passed a bill months ago. You take up our bill." But those clearly would brand me unserious in the extreme so I won't dare ask.)

Back at TPMMuckraker, Paul Kiel, relying on his own sources, says the provisions of the still-secret draft are somewhat better than what Greenwald describes: an even shorter sunset timetable, a ban on "reverse targeting" (where it's claimed the foreign side of the conversation is the target of surveillance but the American side really is), and limitations on "blanket warrants" (where an entire group or internet domain is subject to surveillance rather than a particular individual or email address) - that in addition to the DOJ audit and "exclusivity" provisions Greenwald mentions.

The [senior House] aide [who was Kiel's source] also stressed that the bill "is in the exact same ballpark" in terms of civil liberties protections as the RESTORE Act, the bill which the House passed last year

and which is far better than the Senate bill. Whether Greenwald's or Kiel's version is right - assuming either is, since much of this appears to be going on behind very tightly closed doors and Jay "May I have another, Sir?" Rockefeller is saying he could not support a bill such as Kiel describes - will be seen early next week.

Greenwald argues that the best-case scenario is that

the House will end up marginally improving some of the surveillance provisions in the Senate bill, but still give telecom amnesty and needlessly gut many of the key protections of FISA.

I'm not as pessimistic as that; although I don't see any of the improvements on Pah! contained in the still grossly inadequate bill the House passed in November to survive the combination of gutlessness on one side and petulance on the other (the "sides" not demarcated by party) I do still hold out hope for the scenario suggested by that anonymous Representative on Wednesday:

[I]t could be a long time, if ever, before the bill was brought for a vote [because]

“A lot of people think the politics of doing nothing on this issue are very good for both sides of the political spectrum.”

The GOPpers get to screech about national security, the Dims get to pretend to have backbones, the spooks continue with the tools they already had before last August, which they admit to being adequate, and everybody winks and smiles. The charges drone on, but people are less and less moved by them and each side uses the lack of action to appeal to their base. In short, I think the best-case scenario, and one there actually is a chance of coming about, is stalemate. That would effectively, once existing warrants issued under Pah! expire, leave us with the old FISA law. That law had a lot of shortcomings and the FISA Court is little more than a joke but it's still better than anything before us now.

But as the saying goes, hope for the best but plan for the worst. Call your Congress critters. And Pelosi. And Reyes. If you're feeling bold, call Jay Rockefeller and tell him to stop being an ass and support the House bill. This should be a deal-breaker. I have told my Rep and I will tell him again: Fail on this and I will not support you, I will not contribute to you, I will not work for you, and I will not vote for you. Ever. Period.

Yes, I think it's that important. For privacy, for unfettered speech, for upholding of the rule of law, for upholding of the Constitution, of Constitutional processes and freedoms, yes. It is that important.

Footnote: Just in case you need to be reminded who we are ultimately dealing with.

President Bush said Monday that telecommunications companies should be thanked, not sued, for helping the government conduct warrantless wiretapping in the U.S. after the Sept. 11 attacks. ...

"Should those who stepped forward to say we're going to help defend America have to go to the courthouse to defend themselves, or should the Congress and the president say thank you for doing your patriotic duty? I believe we ought to say thank you," he said.

Yes, thank you. Thank you for breaking the law. Thank you for helping with illegal spying. Thank you for helping to undermine the Constitution. Thank you for helping along the creation of a police state.

Oh, and one other thing: Thank you for cutting the spooks off when they didn't pay their bill, clearly demonstrating the relative importance you place on upholding the law and the Constitution as compared to your bank accounts.

*WHS = White House Sociopaths