LET'S ALL EVESDROP ON THE FISA VOTE TOMORROW

FISA. Everyone talking about FISA. Just what is FISA, you ask? FISA stands for the Foreign Intelligence Surveillance Act. In essence, this bill will determine the ability, and legal standards by way the federal government can gather information through wiretapping. This has raised numerous privacy issues on the left, which are being countered by the usual scare tactics of the right. It should be noted, although the conservatives insist that they need warrant less wiretapping abilities as an integral part of Homeland Securities, the present law already allows them to immediately begin wiretapping, and secure the subpoena later. It should also be noted, there are almost no precedences of a wiretapping subpoena ever being denied.

Here are the basics, told from the liberal point of view...

The purpose of the bill is to address a problem that everyone agrees should be fixed – namely, making clear that the government does not have to get a warrant for foreign-to-foreign communications that happen to pass through the U.S. The new bill goes far beyond this narrow fix, however. It allows the government to listen in on international communications to and from law-abiding Americans in the U.S. who have no connections to terrorism, and the checks on this international dragnet authority are entirely inadequate.

Under the new FISA bill, H.R. 6304, the immunity outcome is predetermined. A federal district court could review in secret the letters to companies to determine whether ‘substantial evidence’ indicates that they received written requests stating the activity was authorized by the President and determined to be lawful. But information declassified by the Senate Intelligence Committee already indicates that the companies got such written requests – meaning immunity is virtually guaranteed.

The bill prohibits intentionally targeting a person outside the U.S. without an individualized court order if “the purpose” is really to target someone reasonably believed to be in the U.S., and it requires the executive branch to establish guidelines for implementing this requirement. But the guidelines are not subject to judicial review, and the bill does not include provisions approved by the Senate Judiciary Committee bill that would require the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American.

The bill does not include a prohibition on bulk collection – the collection of all international communications into and out of the U.S. to a whole continent or even the entire world. Such collection would be constitutionally suspect and would go well beyond what the government has says it needs to protect the American people.

If the government goes forward with surveillance before obtaining court approval, and the court subsequently determines that the government’s surveillance violated the law, the government can nonetheless keep and use any information it obtained.