Yet another (bad) FISA "deal" could be in the offing:
Under the tentative agreement, a major sticking point until now would be resolved by a compromise that would allow a federal district court — not the secret FISA court — to decide about providing retroactive legal immunity to telecommunications companies being sued for their role in the Bush administration’s warrantless surveillance program.
It was not immediately clear, however, what standard the court would use to determine whether such immunity was justified.
If that standard is too low, immunity opponents maintain, the law will have been written so that companies are virtually guaranteed immunity — devaluing any claim of court scrutiny.
First reports are that that standard will be too low, and will be that way by design. The people who want this "deal" pushed through think you and the rest of the millions of Americans who don't actually want to be spied on by what purports to be their own government will think it's a victory if the "review" is conducted in federal district court instead of the secret Foreign Intelligence Surveillance Court (FISC) established under the original FISA.
But the problem isn't where the review is conducted, it's what constitutes the review.
One source said that the court would review whether there was “substantial evidence” that 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.
Sources said that under the prospective deal, the FISA court 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.
In other words, the "dealmakers'" idea of a "compromise" is to let the court decide whether or not someone wrote the telecoms a letter saying it was all OK -- not whether it was OK to write the letter.
Ridiculous.
And how is it that such a monumentally ignorant "deal" was proposed? Look at your dealmakers:
The prospective deal was hammered out at a June 13 meeting that included House Majority Leader Steny H. Hoyer, D-Md., Senate Intelligence Vice Chairman Christopher S. Bond, R-Mo., panel Chairman John D. Rockefeller IV, D-W.Va., House Minority Whip Roy Blunt, R-Mo., and representatives from the Bush administration.
Why is a "deal" about which court will apply what legal standard being decided without any representation from the Judiciary Committee of either the House or the Senate?
Because the people whose job it actually is to set standards of review for the federal courts are being shut out of the process precisely because they know how stupid this "deal" is.
Yes, this bill deals with intelligence collection, and so perhaps you can't deny the intelligence committees a role in its negotiation. But the chief sticking points on this bill are issues that properly fall within the jurisdiction of the judiciary committees. The chairs of those committees -- Rep. John Conyers and Sen. Patrick Leahy -- ought to be taking serious umbrage at this exclusion.
The part everybody agrees on -- that real terrorists and those you can establish a serious suspicion about ought to have their communications monitored -- is the business of the intelligence specialists. And yet there's no disagreement among them or among the rest of the Congressional membership about those issues. The disagreement centers around whether or not anyone ought to monitor the monitors.
And that's where the split lies. The White House and Republicans don't believe anyone can or should do any monitoring of the monitors. They think this is a pure intelligence issue, and that intelligence "agents" -- now really just a network of private contractors, anyway -- ought to have carte blanche "to protect the country." Democrats -- or most of them, anyway -- think someone needs to watch the watcher, and that at least some of that function should fall to the supposedly impartial federal courts. In other words, this sticking point for Democrats is a judiciary issue.
So why is it that the intelligence side is driving the judiciary aspect of this process? Their job is done, and they need to step aside and let people who handle the judiciary deal with this. On the other hand, despite the fact that this really should be a bitter turf battle, it's been some time since we heard anything definitive from either chairman about this.
The essential problem is that the people negotiating this for both parties are all people who place their faith in the intelligence community, and appear to exhibit virtually no skepticism whatsoever about a program designed to permit the gathering of incredibly detailed intelligence about everything done by everyone, with no checks, no oversight, and really, no obligation by the actual government (as opposed to the contractors who actually do this work) to actually get it right and keep their noses out of places even they say it doesn't belong.
Democrats in Congress who will be asked to vote for this "deal" need to hold out for something negotiated by people who actually know and understand the issues at the center of the dispute. And they're not getting it so long as the judiciary issues are being dictated by intelligence people. That's a miserable failure of oversight by the intelligence side, which is overreaching, and the judiciary side, which is underrepresented and underperforming.
