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FISA Walkout

February 14, 2008 - by Donny Shaw

Republicans in the House of Representatives stirred up quite a commotion today by storming out of the Capitol Building and assembling on the steps in protest of the Democrats handling of the FISA reform bill. But Democrats, both in Congress and in the blogs, are arguing that the whole protest and walkout was baseless.

Part of the FISA law — the part added by the Protect America Act that Congress passed in August — is set to expire at midnight on Friday night. Yesterday, House Democrats tried to extend it for three more weeks, but were out voted and blocked from doing so by Republicans (who want the House to quickly pass a new FISA bill) and liberal Democrats (who oppose the Protect Act because it allows the administration to easily engage in wiretapping without first seeking a warrant).

The Protect Act is expiring on Saturday because a six-month sunset provision was added to it at the last minute before Congress passed it in August. The entire bill was extremely rushed — there were only four days between its introduction in the Senate and its being signed into law by the President. Seeing that it was a rush job, adding the sunset provision gave reluctant Democrats an escape hatch in case the bill ended up being politically unpopular. It did, and here we are six months later: House Democrats have decided to let the Protect Act expire without a replacement rather than rushing through another FISA bill that infuriates their supporters.

Speaking at a press conference this morning, President Bush made his case for insisting on a new FISA bill from Congress and not an extension. “The lives of countless Americans depend on our ability to monitor terrorist communications,” he said. “Our intelligence professionals are working day and night to keep us safe, and they’re waiting to see whether Congress will give them the tools they need to succeed or tie their hands by failing to act.”

But, does the Democrats’ decision to wait on passing the bill until they can hold a proper conference committee with the Senate actually tie the hands of intelligence gatherers? At Daily Kos, Kagro X points out a provisions of the Protect Act that gives the intelligence a full year to execute warrants, provided they acquire them before the Act expires:

> Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States.

Kagro argues — and astute respondents in the comments section back him up — that this “puts the onus on the DNI and AG to authorize surveillance before Saturday, and not on the Congress to renew it before then.”

And as for any new suspected terrorist plots that may pop up between the time the Protect Act expires and a new bill is enacted, House Speaker Nancy Pelosi (D-CA) provides a quote on her blog from Kate Martin, Director of the Center for National Security Studies, that indicates that legally conducting a wiretap would not be a problem:

>“If the government learns of new individuals apparently plotting terrorist activities, it can immediately surveil such individuals — whether they are here or calling here from abroad — by obtaining a FISA court order… As officials have confirmed to the Congress, the court can issue an order within literally minutes of being asked and such order can be implemented within minutes. Or the government can start surveillance without a court order under the always existing FISA emergency authority.”

Much of the debate (and delay) of Congress’s work on a new FISA bill has been the result President Bush’s controversial plan to give legal immunity to the telecom companies that helped him execute his warrantless wiretapping program following 9/11. He has repeatedly said that he will not sign a new FISA bill that does not give immunity to these companies. Democrats seem to have finally conceded on this issue earlier in the week, but there are still substantial procedural and oversight difference between the House and Senate bills that need to be worked out. If the question of telecom immunity had been left out of the debate, it’s likely that Congress would already have a new FISA bill finalized and ready to be signed into law.

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