Breaking down the FISA bill...

[cynatnite]

This is the problem that the competing FISA amendments were apparently trying to resolve, and both the Democratic bill (which failed) and the White House bill (which passed) addressed it by allowing surveillance of persons who are "reasonably believed" to be outside the U.S. The FISA court would determine if NSA's procedures are reasonable. Over at Obsidian Wings, Publius spells out the difference:

The Democratic bill...and this is critical...explicitly excluded (1) communications with a U.S. person inside the United States and (2) communications in which all participants are in the United States. Thus, the bill provided protections against domestic surveillance. For these types of calls, the government needed an old-fashioned warrant. (The Democratic bill's carve-out provisions are in Sec. 105B(c)(1)(A).)

The White House bill (pdf) — soon to be law — took a much different approach. It just flatly withdrew all of this surveillance from the FISA regime. More specifically, the bill (Sec. 105A) states that any "surveillance directed at a person reasonably believed" to be outside the United States is completely exempt from FISA (i.e., it's not considered "electronic surveillance"). Lederman spells all this out very well and in more detail, but the upshot is virtually anything — including calls inside the United States or involving U.S. citizens — is fair game.

The White House bill not only fails to prohibit domestic surveillance, but opens a huge hole for just that purpose. It exempts from FISA scrutiny any communication that is "directed at" persons reasonably believed to be outside the U.S., and then leaves this phrase undefined and therefore wide open:

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

If this is right, it means that Democrats caved in on a simple provision meant to prohibit domestic surveillance without a warrant. Under the White House bill, the only oversight against abuse of the "directed at" clause is the Attorney General's say-so, and the FISA court is required to accept the AG's reasoning unless it's "clearly erroneous." This is about as toothless as oversight comes.

Democrats pretty clearly got steamrolled on this. Until Thursday they were negotiating productively with Director of National Intelligence Mike McConnell and had reached agreement on the bill's language. Nobody was making a big deal out of it because things seemed to be going smoothly. Then, at the last second, the White House rejected the language its own DNI had accepted and suddenly all hell broke loose. Democrats weren't ready for it, and with Congress about to adjourn and no backup strategy in place, they broke ranks and caved in. The only concession they got was a six-month sunset in the bill.

http://www.cbsnews.com/stories/2007/08/05/politics/animal/main3135604.shtml

We've got six months to get our shit together to kill this bill.

[Lithos]

1. Course people are angry at the Dems

But why isn't Bush getting any heat for being the one who is pushing for it so hard to cover their nefariousness?

L-

[rockymountaindem]

2. Probably because we expect this of him

and we don't expect our own people to cave in and accept that this line of thinking is somehow okay. I've gone back and forth on this issue since it passed, but the more I learn, obviously the less happy I become about it.

[Hydra]

3. Because we know Bush doesn't care

You can't argue with him or appeal to his conscience. We're mad at our dems because they are supposed to protect us, our interests and the constitution. They did none of those things. They're all we've got, and they've let us twist in the wind.

[karynnj]

6. Because the majority of peopl in this country have

no idea what FISA is or that this happened.

The perception that the Democrats are being blamed is based on the comments here and elsewhere in the liberal blogosphere. The anger is because we thought the truely awful things could be prevented because we had the majority, thus the leadership.

Here, the anger towards Bush is 100%, it is saturated. We can not be angrier at him. The anger towards the Democrats is that we expecte better and there is a sense of betrayal. In reality we only have 49 out of 99 Senators who are available to vote. Still, with the leadership, we had some control over what came up for a vote.

It sounds like through Thusday, the Democrats were working with Bush's Director of National Intelligence (not sure of title) MCConnell. When Bush then said he would veto that bill, NO Republicans would vote for the Demnocratic bill and, as usual they would filibuster it. So, it would need 60 votes - which you can't get with no Republicans.

For the last month, we heard the old "terror, terror, terror" but we had assumed it was no longer working. It obviously was. The Republican claim that not having a bill would deprive us of a tool to catch the terrorists, just as the terrorists were ratcheting up their actions - we know that because of Chertoff's sensitive gut. (:sarcasm:) What was lost in this "the Democrats will leave us less protected" was that a judge ruled that what Feingold, Gore, Kerry and others said was likely illegal in 2005 - was.

The deserting Democrats either bought this argument or were afraid that the Republican frame would be the one bought by the public and thought the alternative - that there were ways to both have the suveillance and stay within the constitution - could not be sold in their states.

[Hydra]

4. K&R

Let me know if you find a signing statement- I haven't found reference to it yet, but I can't imagine this went past his desk and he didn't do some more gutting while he was at it.

[C_U_L8R]

5. Tactics of a tin star tyrant

Literally......
http://africa.reuters.com/top/news/usnBAN357420.html

How far we've strayed.

[Buttercup McToots]

7. From Mystery Poster

From TP
This is just the begining. When the people start to realize that it is not a one party system and the two parties that mainly run things are acting in concert, It will be We The People vs. You the Corrupt. Of all the things I have typed here, this is the message of most importance. I read the DU and other sites, The message is not getting through. Corruption on both sides of the aisle must be repressed. The great politicians will happily misdirect you all with abortion, gay marriage and the Iraq war while taking away your liberties one by one and fully consolidating the resources of this country into the hands of just a few. I can only help you see things from my former allies. You must be able to see your own sides actions.
The actions they took on this vote are blatant and right under your noses.
They may claim they are against the Bush policies, but note how the votes go down....They dissenters are often late in the vote in order to ensure it passes before they vote against it, or they basically just vote for the very things they use to get support in their campaigns. We the People will lose our rights if We The People chase phantom issues while allowing the Constitution to be disregarded.

Wake up America!

Posted by:
Date: August 5, 2007 2:10 PM