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A Glimmer of Hope on FISA?

March 11th, 2008 · No Comments

Ryan Singel has the “compromise” draft legislation produced by House Democrats; I haven’t had time to slog through the 119-page monster just yet, but on a quick scan of the summary, it looks pretty good at first glance. The EFF’s Kevin Bankston is reportedly pleased, which is an excellent sign.

Update: I’ve just looked at the comparison chart showing how this new legislation differs from both the original House RESTORE Act and the bill passed by the Senate. Basically, it’s the RESTORE Act with a few tweaks. The only real bone thrown to the White House is that, like the Senate bill, this draft allows the executive branch to authorize surveillance for all foreign intelligence purposes, rather than limiting the new powers to terrorism and national security investigations.

On the immunity front, this bill’s provisions are arguably worse (from the White House’s perspective) than complete inaction, since the law would establish a forum for the cases to proceed in which it would be harder for the administration to block the suits by invoking the State Secrets Privilege. (Though one suspects that “unitary executive” theorists will deny Congress can abrogate the privilege. I’m not sure they’d be wrong to so argue; I need to dig into that further.) While all this, naturally, inclines me to look favorably on the bill, I’m not sure what makes it a “compromise” either. It looks like the same language the administration has already declared it won’t accept.

Not that there’s anything wrong with that, mind you. The folks at Heritage seem to think that the opposition of the President and congressional Republicans is some kind of fact of nature, to which House leaders must simply adapt or be accused of wasting time. And indeed, one might reasonably wonder what purpose is to be served by reintroducing something so close to the bill they’ve already passed.

But I think I see what they may have in mind. Contra Heritage, it has been the advocates of unchecked surveillance who adopted a strategy of “purposefully avoiding the merits of the debate,” preferring to frame the issue as a choice between passage of the Senate bill and inaction, with the apocalypse to follow shortly thereafter. With more attention now focused on the issue, reintroducing this legislation shifts the burden back in the other direction: Conservatives will have to explain why, if it’s so vital to pass new legislation, they can’t live with the eminently reasonable safeguards embedded here. I suppose we’ll see if it works.

Tags: Privacy and Surveillance