According to the Washington Post...

"Senators Say White House Cut Deal With Panel on FISA: Documents Said to Be Traded for Telecom Immunity"

"Senate Judiciary Committee members yesterday angrily accused the White House of allowing the Senate Intelligence Committee to review documents on its warrantless surveillance program in return for agreeing that telecommunications companies should get immunity from lawsuits."

"Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (R-Pa.), the ranking Republican, said any such agreement would be "unacceptable," signaling that legislation granting immunity to certain telecom carriers could run into trouble. Leahy and Specter demanded that the documents, which were provided only to the Intelligence Committee, be turned over to the Judiciary Committee as well."

"At issue is a White House-endorsed measure that would give immunity to telecom carriers being sued for allegedly helping the National Security Agency spy on Americans after September 11, 2001. It is part of a larger bill to rework the Foreign Intelligence Surveillance Act (FISA). The Intelligence Committee has approved the bill and sent it to the Judiciary Committee for deliberation."

"Tony Fratto, a White House spokesman, said yesterday that what the White House did was 'not exactly' a quid pro quo but that the intelligence panel 'expected to legislate on the liability' and so "we've been accommodative on sharing information."

"Fratto said that the White House could not make documents containing presidential authorizations and the Justice Department's legal opinions underpinning the surveillance program available to members not already briefed on the NSA program, as members of the Intelligence Committee were. He said talks are ongoing on that point."

"On Friday, White House press secretary Dana Perino said that Intelligence Committee Chairman John D. Rockefeller IV (D-W.Va.) and ranking member Christopher S. Bond (R-Mo.)'s staff  'showed a willingness' to include immunity in their legislation. "Because they were willing to do that, we were willing to show them some of the documents that they asked to see."

What is going on...

The interception of telephone and other communications to protect the United States should be a national priority. In certain circumstances, such as developing  "data mining" programs and protocols, you need to sift through enormous amounts of data which may be perfectly innocent while looking for the patterns and exceptions that indicate either "hostile" communications or a "chatter" trend.

The programs themselves should be overseen by judicial monitors who can be trusted to point out wrongdoing and demand corrective actions.

Unless commercial information is being compromised for the purposes of industrial espionage, leaked to the media, used for political purposes or used for blackmail and extortion, there should be no reason why the Administration needs the cumbersome process of detailing the need for each and every communications intercept. That is, unless the intercepts are going to be used for criminal investigations or pressuring co-conspirators and potential witnesses into testifying in criminal prosecutions.  According to reports in the media, there have been a number of cases in which communications techniques designed for intelligence gathering under the patriot act have allegedly been utilized for criminal investigations.  And we have all seen the abuse of the RICO (Racketeer Influenced and Corrupt Organizations) Act being applied outside of its original intent; to apply pressure on corporate prosecutions having nothing to do with the statute's original intent of fighting "organized crime."

It seems to me that the democrats are attempting to secure a political advantage in the upcoming election cycle by embarrassing the Administration with tales of individual transgressions which may have been accidental or the result of overzealous intelligence gathering. Although one wonders why an overzealous information program in the cause of national defense would be a bad thing.

I think that the ground rules should be simple:

The information gathered should not be viewable or accessible to the communications carrier. It should be encrypted using NSA-approved ciphers and made available only to the intelligence community. Those that prosecute civil and criminal acts not involving espionage should be denied access to any gathered or processed information.

The information gathered for national defense purposes should not be allowed in a criminal or civil prosecution unless a warrant showing probable cause has been obtained and that the information intercept did not, in any way, contribute to an attempt to obtain the warrant.

That anyone who misuses, abuses or leaks information contained in a national defense intercept be appropriately punished with a mandatory prison term. While this may be codified in existing law, it does not appear to be applied publicly and consistently.

That anyone who uses information contained in a national defense intercept for political purposes -- no matter which side of the aisle or if affiliated with the administration -- is prosecuted to the full extent of the law.

Let us assume that the NSA's activities in conjunction with the communications carriers was not patently illegal in terms of using the information inappropriately for political, criminal or commercial activities -- why not provide limited immunity to all parties concerned unless the person who can prove actual damages comes forth with a claim? If such a claim can be presented, then the matter becomes a matter for the appropriate Federal court and the proceedings can be appropriately classified. Class action lawsuits and document fishing expeditions would not be allowed.

Civil Libertarians or something else?

We are living in dangerous times. Times in which sophisticated communications techniques and encryption methods are available to anyone who can afford a computer and who can download free software. Times which demand special procedures to keep us safe. Unfortunately the concept of an individual warrant does not support the concept of "data mining" for potential and dangerous linkages. While it is possible that ordinary activities such as dialing a wrong number or answering a telephone call made in error, can trigger closer scrutiny, one must trust that those sifting through the intelligence will have the common-sense to weed out the superfluous before it becomes intrusive to the average person.

The greatest danger to civil liberty remains the unauthorized and unsanctioned use of this information for political, criminal or commercial activities beyond the original mandate that the information be used only for national defense purposes. One can almost imagine the Administration claiming that anything which impacts our economy concerns national defense. It is exactly this type of logic which should be of concern to civil libertarians. And the reason why the intelligence gathering project scope and oversight needs to be reviewed by the judiciary.

And speaking of dangers to our nation, one should add that the rabid partisan politics found in today's Congress has also greatly added to the danger. It seems that Senators act as if they are "royalty," above the law and immune to doing the people's bidding as they pander to the special interests. In many instances, national defense has become just another tool for securing lucrative contracts and maintaining the flow of campaign contributions. In some cases, I often wonder about the entire processing being vulnerable to subversion by foreign enemies contributing monies through PR and lobbying firms and obtaining access to political and military secrets. And why not, it seems that the Chinese made a concerted attempt to influence the Clinton Administration through campaign donations. And it may be happening again.

What can YOU do?

Demand that all elected and appointed officials cease using "gotcha" politics to harm our national defense intelligence gathering efforts.

Demand that campaign contributors be vetted for possible foreign connections.

Demand those who work on any information gathering and surveillance projects be vetted for the appropriate security level and prosecuted if they use the information outside of the law.

Demand that all government agencies, especially the CIA, NSA and FBI be de-politicized immediately. The problem seems primarily caused by the politically-appointed civilian officials who then attempt to justify their existence by engaging in overt and covert political activities which support the administration in power. The downward pressure from these so-called "leaders" then leads to the political corruption of the entire system. And a loss of confidence by the American public.

Do not vote for anyone who seems to be weakening the defense of the United States for political purposes.

Do not vote for any candidate or current politician who is willing to subvert the safety, security and sovereignty of the United States or limit an individual's right of self-defense for personal power, prestige or profits.

-- steve

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Reference Links:

Senators Say White House Cut Deal With Panel on FISA

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