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No Matter What Happens this Afternoon, FISA Won't Expire

January 28, 2008 - by Donny Shaw

Whoa. Glenn Greenwald writes today about some serious media misrepresentations of the FISA/telecom immunity debacle currently playing out between Congress and the Bush Administration.

Today at 4:30, the Senate will vote to uphold a Democrat-led filibuster of a Republican-led motion to cut off debate and pass a bill to reform current FISA policies. The bill Republicans want passed, like the one that most Democrats want passed, would make some changes to the procedures the government must follow in eavesdropping on communications involving U.S. persons. But, unlike the Democrats’ FISA bill, the Republicans’ bill contains a provision to give retroactive legal immunity to the telecommunications companies that helped the administration execute its warrantless (thus illegal) wiretapping program.

As I explained here, the debate over FISA reform bill — largely because of the controversial immunity provision — appears to be headed to a standstill; it’s likely that no bill will be approved before Feb 2, when the bill currently dictating wiretapping procedures (the Protect America Act) is set to expire.

But, as Greenwald emphasizes, what this would mean is that FISA policies will revert back to the ones in place before the Protect America Act was enacted last August, not that FISA itself will expire. Regardless of what you think about telecom immunity, or any other aspect of the FISA reform debate, this is a crucial fact if you are to understand what’s at stake and what isn’t:

>…as has been true from the beginning of this scandal, reporters have been too slothful to learn the facts (or too willing to distort them), and administration officials have been easily able to convince them of all sorts of things that are patently false, which they then convey to their readers. Here, for instance, is what The Politico’s Allen wrote:
>The Foreign Intelligence Surveillance Act, which governs surveillance of telephone calls and e-mail traffic of suspected terrorists, expires on Friday. After that, any monitoring that’s currently authorized could continue, but no new surveillance could begin.
>Wow – that sounds scary. Come Friday, there’s no more FISA! And no new surveillance can begin! The Congress better act and quick! I can’t believe Congressional Democrats are playing games with our safety this way!
>Of course, all of those statements all wrong, factually false. FISA is the law that was passed in 1977 and updated repeatedly since then, including with post-9/11 amendments that caused Bush himself, at the time, to say about the newly amended FISA: it “takes account of the new realities and dangers posed by modern terrorists” and “will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones.”
>FISA does not expire on Friday, contrary to Allen’s gullible parroting of what his anonymous White House friend told him. It continues indefinitely even if the PAA expires. And under FISA’s long-standing provisions, the Government — just as Bush himself said back in October, 2001 — has all the power it needs to eavesdrop on The Terrorists provided it gets a warrant from the FISA court or, in cases of emergency, within 72 hours after it begins eavesdropping.

The question of whether or not there is a flaw in the pre-Protect-America-Act FISA policies that hinders the administration’s ability to quickly intercept some foreign communications that are routed through the U.S. would remain to be dealt with.

Pictured above is Patrick Leahy (D-VT) and Arlen Specter (R-PA) asking questions of Kenneth Wainstein of the NSA regarding FISA.

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