I'll withhold judgment until I see the text of the bill, but from this story, it appears the Progressive Caucus made some progress--though not on all counts--in their efforts to ensure the permanent FISA amendment safeguards privacy and civil liberties.
House Democrats plan to introduce a bill this week that would let a secret court issue one-year "umbrella" warrants to allow the government to intercept e-mails and phone calls of foreign targets and would not require that surveillance of each person be approved individually.
The bill would require the Justice Department inspector general to audit the use of the umbrella warrant and issue quarterly reports to a special FISA court and to Congress, according to congressional aides involved in drafting the legislation. It would clarify that no court order is required for intercepting communications between people overseas that are routed through the United States. It would specify that the collections of e-mails and phone calls could come only from communications service providers -- as opposed to hospitals, libraries or advocacy groups. And it would require a court order when the government is seeking communications of a person inside the United States, but only if that person is the target.
The bill would not include a key administrative objective: immunity for telecommunications firms facing lawsuits in connection with the administration's post-Sept. 11 surveillance program.
That is, this bill appears to have regular oversight of the program (IG reports to both FISC and Congress). And it refuses to give immunity to telecoms without first knowing what those telecoms did. These account for several of the eight demands issued by the Progressive Caucus. But the bill only requires a FISA warrant if the surveillance targets someone in the US, not if it touches on someone in the US (though this is better than the "related to" language in the amended FISA act).
There are several other important details in this story.
First, the story reveals that Silvrestre Reyes and John Conyers are the ones doing the drafting. This puts the spotlight on Conyers--a member of the Progressive Caucus but also reported to be the one who folded with the FISA amendment in August.
Second, the story reveals that the Administration claims we're going to get the documentation on surveillance we've been demanding. Only, they're going to get it on October 22, and this bill is scheduled for a vote on October 17.
The White House on Friday evening told the chairmen of the Senate and House intelligence and judiciary committees that it would put together that information by Oct. 22 but would not say when or whether it would make the information available to lawmakers.
"We have told the White House for weeks that the House plans to consider FISA legislation on October 17," said a senior Democratic congressional aide involved in the White House negotiations. "How can members of Congress consider any proposal for immunity if the documents relating to the company's conduct aren't even being assembled by White House lawyers until October 22?"
I'm curious how this timing affects Leahy's plans for Mukasey's nomination hearings--but at least for the moment it also means that Dems will hold fast on the immunity question. We hope.
Go read the article for its discussion of the four tiers of immunity the Senate (read, Jay the Jellyfish Rockefeller) is considering. It ranges from blanket immunity to indemnification to--most interesting--making the government the defendant in lieu of the service providers (though that would likely put us right back into the State Secrets trap).
And finally, this tidbit confirms something I had suspected, but never seen verified:
Michael Sussmann, a partner at Perkins Coie in Washington who represents communications providers, said carriers that are alleged to have participated in the government's warrantless surveillance program want immunity to halt pending cases, while those who did not are either agnostic or do not want their competitors to get a free pass. [my emphasis]
This is saying that companies like Qwest, which was reported to have refused the Administration's request for consumer data, are not supporting AT&T and Verizon's efforts to gain immunity. Further, since Sussman describes two positions (agnosticism and opposition), it suggests there are at least two different service providers which did not participate in the government's program. It'd be awfully useful to learn which service providers are which, not just to give the ones that refused to cooperate a competitive advantage, but also to maximize their leverage in this debate.
In any case: October 17, at least according to this article. That gives us ten days to tip this a little further to the progressive side.