Call it a deal with the devil, but the House Democrats are set to offer compromise legislation that would allow the administration to conduct warrantless surveillance. The trade-off seems clear.
The bill would allow so-called "umbrella" warrants from the FISA Court for what The New York Times calls
"bundles of overseas communications." That umbrella would last for up to one year and is meant to extend to communications into and out of the United States. If the "target" was in the U.S., however, the administration would have to seek an individualized warrant from the court. The bill would also make clear that foreign to foreign communications do not require a warrant. The Times
helpfully explains that the Dems "remain nervous that they will be called soft on terrorism if they insist on strict curbs on gathering intelligence."
In return, the Democrats would get some transparency goodies. Four times a year, the Justice Department's inspector general would perform an audit of the program. And the Department would be required to maintain
"a database of all Americans subjected to government eavesdropping without a court order, including whether their names have been revealed to other government agencies."
What the bill doesn't include, much to the administration's chagrin, is retroactive immunity for all the telecoms that (allegedly
) helped the administration conduct warrantless surveillance during all the years the program remained secret. Perhaps that's because the administration has still, despite a Congressional subpoena, not handed over documents showing the legal basis for the program. And it remains unclear if they will. The Washington Post reported
this weekend that the White House told Congress Friday evening 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."
Dems in the Senate, however, might give the administration its precious immunity anyway. Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) is working away on his own version of the bill, and apparently retroactive immunity might be
part of the package.
Civil libertarians, of course, are unhappy with the Dems' bill -- though not as distraught as they were over the Protect America Act. And even the Dems are subdued, with liberals like Rep. Jerrold Nadler (D-NY) saying that âIt is not perfect, but it is a good bill."
But the hope appears to be that Dems can confidently tout the "Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007" -- or RESTORE Act -- as the Not as Bad as The Protect America Act (I guess that would be NaBaPAA). And hope that the bill is strong enough that Republicans and the administration aren't able to pull a repeat of August's debacle.Update
: Here's a summary
of the bill provided by Conyers.