FISA clarification

Glenn Greenwald really has the best of Joe Klein here and here, and I think Joe would be best served by admitting as much and not issuing a sideways defense of his position on FISA by painting his opponents with the "lawyers and civil liberties extremists" brush.*

This all really is just an example of partisan dust-kicking obscuring the broad landscape of agreement on the merits. Joe describes that agreement perfectly well:

--It is necessary to monitor the communications of foreign terrorist suspects.
--It is necessary to get a FISA warrant to monitor the communications of any U.S. citizen or resident alien who engages in suspicious exchanges with a foreign terrorist target.
--It is necessary to protect the identities of innocent U.S. citizens or resident aliens who are swept up in the data-mining of foreign terrorists' communications.

In reality, though, it's the "partisan" Democratic bill that accomplishes this most neatly.

The problem isn't as Joe describes it. It's just not the case that the Democratic bill--RESTORE--is a distracting, partisan move aimed at derailing or mangling a bipartisan compromise bill. It's that, on national security issues, a right wing majority--comprised of just about every Republican member of both bodies along with a few dozen Democrats--still dominates the Congress, and that their bill grants the White House almost everything it now says it wants at the expense of actually improving the original FISA legislation, or securing civil liberties, or absolving major donor industries of significant crimes.

This isn't even a difficult technical problem to describe. Under RESTORE, if the NSA is intercepting calls of foreign origin without a warrant at a switch in the United States, they have no way of knowing ex ante who the person being dialed is or where they're located. When that person picks up the phone and reveals himself or herself to be located in Pakistan (or wherever) surveillance can continue unabated. But if that person picks up the phone and reveals himself or herself to be located in Kansas, then the NSA has a choice: it can either ditch the call and minimize the data (scrap the file of all revealing information and put it on a shelf somewhere), or continue listening and get a warrant retroactively.

That's exactly as it should be and exactly what RESTORE authorizes, and the obfuscation is coming not from "civil liberties extremists", but from the authors of the legislation Joe supports. The fact that the president has threatened a veto is sort of neither here nor there. If his threat is real, then what we have--in theory--is a choice between the compromise legislation (which sucks) and the pre-August FISA (which complicates foreign-to-foreign surveillance, but is free from most of the civil-liberties-smashing nonsense in FISA as it is now, and doesn't grant immunity to telecoms) which will become law again once the current amendments sunset. Ideally, Bush would just sign the RESTORE Act. But if he doesn't, then the sunset option, which Bush will have forced, is the preferable one, even if he pounds the table and calls the Democrats weak in response. After all, they're right on the merits, and have a good political case to make as well.

*=I realize I'm late to this, but hey! I've been on (and remain on) vacation.