This is Emptywheel's bailiwick, but she's travelling, so I'll try to fill a little of the void to give folks a place to discuss the issues. TPM Muckraker has a good rundown on the issues involved in the Bush/Cheney regime's demand for a quick fix of FISA. In brief, the FISA court has evidently restricted the ability of the National Security Agency to collect information on multiple surveillance targets under a single warrant and won't allow the NSA to collect intelligence on persons where it is not known whether they are inside or outside the U.S. Bush/Cheney wants the Attorney General to replace the FISA court in making the necessary determination. No chance of that, says Leahy. The Dem proposal is here. Other key issues are:
Carve-Outs vs. Safeguards. What the Bush administration wants -- and probably has done over the past six years -- is to remove FISA protections from a broad swath of people in the U.S. in order to look for terrorism connections. That has had, and will have, broad implications for what the U.S. intelligence community can collect in terms of domestic communications.
The Dems' idea is to keep the FISA court. Rockefeller wants a 6 month fix--Feingold wants 90 days--after which Bush/Cheney would have to come back to Congress. But under Rockefeller's proposal, per TPMM,
after 60 days of surveillance, the administration would have to inform Congress and the FISA Court exactly who has had their communications intercepted. And if the administration believes there's a "significant" pattern of communication between someone in the U.S. and a foreign-based surveillance target, it has to acquire a specific warrant from the FISA Court or end the surveillance.
The Definition of "Significant." So far, the bill allows the Justice Department to issue guidelines defining what qualifies as a "significant" amount of communication between someone in the U.S. and a foreign surveillance target. After six months pass, according to Rockefeller's proposal, the administration -- presumably through the Justice Department, but it's not clear -- would submit a detailed report on how the authorization has worked, including on the definition of "significant," for congressional review, in time for the "sunset" provision ending the temporary fix.
Can the Government "Sit" on a Wire? "Sitting on a wire" is a shorthand way of referring to the NSA demanding, under FISA authority, all the available communications data from a telecom company relative to a given surveillance target, and then unilaterally determining what it needs. . . . It's not clear yet whether, in whatever bill emerges, the NSA or the telecommunications companies will have the responsibility for sorting through the material relevant to the warrant.
Will Telecom Companies Have Immunity from Prosecution? According to the Wall Street Journal, the compromise under negotiation ducks the question. If so, it means that, at least so far, the telecoms don't have any legal immunity for improperly turning over more information about subscribers to the government than the government is entitled to.
Nor should they--keep this one out of the bill. And finally, the big one:
Disclosing Past Abuses. This has been a sticking point between Democrats and the administration since Alberto Gonzales proposed amending FISA in the spring. The proposal under consideration doesn't include notification of the extent of the surveillance that has occurred since "Program X" began in October 2001.
I'm no expert, or even a lawyer any more, but this seems like a no-brainer. How can Congress correct abuses of it doesn't even know what happened in the past? At an absolute minimum, the entirety of the program that existed PRIOR to the hospital visit of Card, Ginzales, Comey et al needs to be disclosed fully to Congress and, since it allegedly is no longer in operation, to the American people, before Bush/Cheney get their fix. Of course the Dems are afraid that if a terror attack comes before they authorize what Bush/Cheney wants, they will be blamed. But they will be blamed anyway; that is SOP for the Rovians.
Via TPMM again, Marc Rothenberg of the Electronic Privacy Information Center notes that
"We've never wrestled with the question of constructing privacy safeguards for U.S. citizens that are subject to massive surveillance by a U.S. surveillance agency. Sen. Frank Church's nightmare was that U.S. intelligence capabilities for surveillance would be turned on the American people. The thin black line on that issue turns out to be the FISA court -- the only form of intervention between power of the intelligence community and American citizens."
Let's strengthen, not obliterate, that line. Spencer Ackerman has more on "Program X" here.