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How Bad Is The Fisa Deal?

House and Senate negotiators reached agreement today on a new bill to amend FISA, which looks like it will be brought up for an up-or-down vote in both houses of Congress, and will almost certainly pass. Opponents in Congress (like Patrick Leahy and Russ Feingold) and liberals and libertarians in the blogosphere are unhappy, primarily (though not exclusively) because the bill would effectively grant immunity to telecoms who abetted President Bush's wiretapping scheme. Courts would be required to dismiss any lawsuit as long as the government can demonstrate it provided assurances to the company being sued that the program was legal--that is, courts won't be conducting any independent review of whether the program actually was legal.

It's pretty clear that the question of whether the telecoms end up having to pay damages is something of a sideshow. The lawsuits are such a big deal mainly because they appear to be the last remaining way of airing the details of the program in court and ascertaining whether it violated the law. (No individual can demonstrate that they were a target of the surveillance, and courts have ruled that such a demonstration is necessary in order for a plaintiff to have standing to challenge the program.) That's off the table now, which is quite disappointing. The government will at least have to document to the courts the assurances it provided to telecoms, which is a plus. But according to the text of the legislation (pdf--scroll down to page 91), the courts will be prohibited from releasing any documents whose publication the attorney general declares would threaten national security. So you can bet that none of them will ever see the light of day, and there will be no informed public debate on the legality of the program. All in all, the Democrats pretty much caved on the question of judicial review of the wiretapping program.

What did the Democrats get in return? Four things, as far as I can tell. One, the bill requires the inspectors general of the DOJ, DOD, and NSA (among others) to submit a report to Congress reports on whether the program was legal. This might be valuable if it were an Obama administration submitting such a report (which it could do on its own, if it wanted to), but there's little doubt as to what a lame-duck Bush administration will find. Two, there are more restrictions placed on the actual surveillance powers given to the president going forward; Leahy seems pleased on this front. Three, the legislation sunsets at the end of 2012, so Congress will have to renew it then if it wants to keep its provisions in place. And four, it reiterates that FISA is the "exclusive means" by which surveillance may be conducted--that is, Bush doesn't have the constitutional authority to simply ignore it. Presumably Bush will claim he does retain that authority.

In sum, not a terrific bill, and it will be interesting to see whether Obama ends up supporting it. About the best that can be said of it is that if Democrats weren't willing to risk letting wiretapping orders start expiring in August, it's probably a good idea to get this off the table now, rather than go through another humiliating last-minute staring contest. They only won the last one because they could plausibly claim that no wiretapping orders were actually being placed in jeopardy; this time around, that wouldn't have been the case.

--Josh Patashnik