The House is now voting on changes to the new federal surveillance law.

There were plenty of Democrats speaking out against it during the hour-long debate.

"This bill scares me to death and I urge a no-vote," said Rep. Barbara Lee (D-CA), co-chair of the House's Progressive Caucus.

She compared the bill to the era of former FBI head J. Edgar Hoover. "We already remember how Dr. [Martin Luther] King and his family were the victims of the government's most shameless wiretapping. We must never go down this road again."

House Speaker Nancy Pelosi (D-CA), gave the bill a lukewarm endorsement, saying the bill many supported was "not an option."

She said the real decision was between this "compromise" bill and the one the Senate has passed, which offered even broader surveillance powers and more protection for telecom companies. "That is the comparison, the contrast, that we have to make today."

"I'm not asking anybody to vote for this bill. I just wanted you to know why I was," Pelosi told the House. "Difficult decisions for all of us. ... I respect every point that was expressed on this floor today. ... The knowledge, the sincerity, the passion and intelligence of those who supported and who don't support this bill have been very valuable in making this bill better."

Rep. John Conyers (D-MI) pointed to a constitutional concern.

"The grant of retro-active immunity is inconsistent with our basic principles. We are breaking with a very proud tradition and intervening in a pending court decision in an effort to reach a preordained legal outcome. This is a bad precedent," he said.

Republicans without exception spoke in favor of the bill, often citing the dangers of terrorism.

"This bill will prove that we have the ability to monitor the conversations of al Qaeda overseas," said Rep. Dan Lungren (R-CA) "It's not the Mona Lisa, but it's not a bad paint job."

Rep. Dennis Kucinch (D-OH) spoke briefly. "These blanket wiretaps make it impossible to know whose calls are being intercepted by the National Security Agency."

The House debate about the FISA law is underway. The House has capped debate at just one hour.

So far, the Democrats seem to emphasize that this legislation will not get the Bush Administration off the hook.

Rep. John Conyers (D-MI) said he opposed the bill, but did point to one bright spot in the legislation.

"[The bill] will ask the inspector general to conduct an independent investigation of the president's wiretapping program," Conyers said. "This will uncover the truth for the American people, hopefully, about the president's activity."

Rep. Sylvester Reyes (D-TX), the chair of the House Intelligence Committee, also noted that: "This bill does not grant immunity to any government official that might have violated the law."

After everyone had a chance to sift through yesterday's breakthrough "compromise" on a new federal surveillance law, the biggest winer of the day was not Republicans or Democrats but the telecom companies.

Today's Washington Post summarizes the legal impact succicntly in it's front-page story :

The agreement extends the government's ability to eavesdrop on espionage and terrorism suspects while effectively providing a legal escape hatch for AT&T, Verizon Communications and other telecom firms. They face more than 40 lawsuits that allege they violated customers' privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks.

The final compromise on the immunity issue was this: Many Democrats had wanted the federal courts to review whether the surveillance program was legal before granting immunity. The White House wanted the courts to have no involvement whatsoever. The "compromise" calls on the courts to consider the surveillance legal if the companies can prove that the Administration told them it was legal. (Which we know they did).

The Chicago Tribune reports:

The new bill would require federal courts to cast those lawsuits aside if the companies can show that they received written requests from the government stating that their cooperation was deemed lawful and had been authorized by the president.

The House is expected to vote on the measure today. Though billed as a compromise, the final version was viewed as a victory for the White House, according to the Post.

But overall, the deal appears to give Bush and his aides, including Attorney General Michael B. Mukasey and Director of National Intelligence Mike McConnell, much of what they sought in a new surveillance law.

As for the future of the spying program, this new law allows it to grow.

The Wall Street Journal this morning wrote:

The lasting impact of the agreement would be a broader scope for the government's domestic surveillance.

Before 9/11, the NSA had to acquire a specific warrant if it wanted to listen to any conversation involving a U.S. citizen. Now, the secret court would be able to approve broad patterns of surveillance, focused on groups of people believed to be overseas, even if they are communicating with people in the U.S. So without a warrant, the NSA could listen to the conversation of a U.S. citizen if he or she was talking to a suspicious person overseas.

Several Democrats spoke out against the bill, but enough of them agreed to assure this version will pass into law.

Again, from the Journal:

The outcome was driven largely by the realities of election-year politics. Democrats, particularly more conservative ones, in vulnerable re-election races couldn't afford to appear to be dodging a big national-security issue. And many believed the law needed to be updated before surveillance orders expired in August. House Democratic leaders struggled for months to find a proposal their entire party could support but couldn't overcome splits between conservative and liberal Democrats -- some of whom are reacting angrily to the deal.

Behind the political positioning, however, was the pressure from the telecom firms -- particuarly AT&T and Verizon, which both stepped up their lobbying efforts this spring.

As lawmakers continue to react to the "compromise" deal on a new federal surveillance law, several Democrats in the Senate are coming out against the bill.

Sen. Russ Feingold (D-WI) has been the most outspoken since the deal was unveiled this morning.

"The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President's illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration."

Sen. Patrick Leahy (D-VT) also said he opposed the House deal.

"This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program. Therefore, it lacks accountability measures that I believe are crucial.

Sen. Harry Reid (D-NV), who has been cool to recent talk about the House deal, appears on the fence, and issued this statement today:

"Senator Reid believes this version is better than the bill the Senate passed in February and much better than the Protect America Act signed by the President last summer, but he remains opposed to retroactive immunity and is reviewing the bill in its entirety."

The Senate passed a bill that provided retroactive immunity to telecom companies earlier this year, so it's unlikely that there will be enough votes to defeat the latest version of immunity.

Clearly the wrangling is over regarding the surveillance compromise. A formal statement went out today that everyone agrees on this matter.

Senate Intelligence Committee Chairman John "Jay" Rockefeller (WV), Senate Intelligence Committee Vice-Chair Kit Bond (MO), House Majority Leader Steny Hoyer (MD), and House Minority Whip Roy Blunt (MO) announced today that a bipartisan compromise has been agreed to that will modernize the Foreign Intelligence Surveillance Act.
...
"This bipartisan bill balances the needs of our intelligence community with Americans' civil liberties, and provides critical new oversight and accountability requirements," said Hoyer. "It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance. Furthermore, we have ensured that Congress can revisit these issues because the legislation will sunset at the end of 2012."

The Electronic Frontier Foundation has a copy of the new legislation here.

Read on for the complete text of the Congressional statement.

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From the Wall Street Journal:

WASHINGTON -- After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders have agreed to a bipartisan deal that would be the most sweeping rewrite of spy powers in three decades. The House is likely to vote on the measure Friday, House aides said.

Removing the final barrier to action on the measure, which has been hashed out in recent weeks by senior lawmakers in both parties, House Democratic leaders decided to allow a vote on the bill, despite the opposition of many in their party.

The new agreement broadens the authority to spy on people in the U.S. and provides conditional legal immunity to companies that helped the government eavesdrop after the 2001 terrorist attacks, according to congressional aides in both parties.

Late Update: The deal-maker was offering some retroactive immunity to the telecom companies who have already participated in the program.

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed.

We haven't heard what "conditional" means.

Politico reports that the House Democrats have agreed to vote for it, possibly tomorrow.

Late Update: The Electronic Frontier Foundation says the deal offers broad immunity and says the Democrats caved in to pressure from the telecom industry and the White House.

"Whatever gloss might be put on it, the so-called 'compromise' on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review," said EFF Senior Staff Attorney Kevin Bankston. "We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court."

EFF is representing plaintiffs in a class-action lawsuit of AT&T customers who claim their records were illegally handed over to the National Security Agency (NSA).

It all depends on what your definition of "exclusive" is.

At the heart of the debate over warrantless wiretapping is whether FISA, by its own terms, is the exclusive means for the government to undertake electronic surveillance in counterespionage and counterterrorism cases.

The plain language of the FISA statute seems clear, stating that FISA is the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But nothing is ever that simple with the Bush Administration.

This week Sens. Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA) released a declassified sentence from one of John Yoo's notorious memos, written while he was serving in the Justice Department's Office of Legal Counsel. In it, Yoo managed to rationalize away the exclusivity provision of FISA in order to justify a warrantless wiretapping program outside of the FISA framework, without judicial oversight or regular reports to Congress:

"Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

Poof! Just like that, exclusivity disappeared and the Bush Administration was free to pursue warrantless wiretaping with the official blessing of the OLC. (Former OLC attorney Jack Goldsmith has described his office's memos as "advance pardons").

The Bush Administration says it no longer relies on the Yoo memo as the legal underpinning for warrantless wiretapping, pointing instead to perhaps an even weaker rationale, the post-9/11 AUMF:

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Exclusivity remains a key sticking point in passage of a new FISA law. Democrats are demanding language that erases whatever doubt there might be (although in fact there is none). The White House is balking.

It's time for your surveillance bill update. Sen. Kit Bond (R-MO) says that he's drafted a compromise on retroactive immunity for the telecoms. How does it bridge the gap between the House Dems, who refuse to wipe away the forty or so lawsuits against the telecoms for collaborating with the administration's wireless wiretapping program, and the White House, who refuse to pass any surveillance bill without such a measure?

Well, he's not saying, although he's dropping some hints:

"I think we've come up with some things that would involve the court, but not get to a position where it would endanger the program or the carriers."...

Bond said the language, drafted with White House consent, represented a "new provision we've come up with" on immunity. He would not give details other than to say that the FISA court would have a role. It is unclear whether the new approach will gain approval from Democratic leaders and negotiators.

Bond says that the measure is not the one that was offered by Sen. Dianne Feinstein (D-CA) that would have directed the secret FISA court to have determined whether the telecoms had followed the law or participated "in good faith with an objectively reasonable belief that such assistance was lawful." Most Democrats supported that, but all Republicans except Sen. Arlen Specter (R-PA) didn't. Since Bond says that his solution doesn't "endanger" the telecoms, one would think that his proposed solution would be even less risky than having the secret court make a determination as to whether the telecoms really believed they had legal cover. I can't wait to see it.

Meanwhile, The Hill also reports that Bond is negotiating directly with Rep. Steny Hoyer (D-MD). It's unclear as of yet whether Hoyer is amenable to Bond's offer, but they're talking.

The president has said that his administration is employing every tool at their disposal to foil terrorists while protecting the civil liberties of Americans. For some reason, The Los Angeles Times opted not to take him at his word.

The secrecy necessary for counterterrorism prosecutions has combined with the rampant secrecy of the Bush administration to make it all but impossible to measure that balance. But the Times chooses a method, however imperfect, to gauge what's going on. Simply put: spying is up while counterterrorism prosecutions are down. The specifics:

A recent study showed that the number of terrorism and national security cases initiated by the Justice Department in 2007 was more than 50% below 2002 levels. The nonprofit Transactional Records Access Clearinghouse at Syracuse University, which obtained the data under the Freedom of Information Act, found that the number of cases brought declined 19% in the last year alone, dropping to 505 in 2007 from 624 in 2006.

By contrast, the Justice Department reported last month that the nation's spy court had granted 2,370 warrant requests by the department to search or eavesdrop on suspected terrorists and spies in the U.S. last year -- 9% more than in 2006. The number of such warrants approved by the Foreign Intelligence Surveillance Court has more than doubled since the 2001 terrorist attacks.

The department also reported a sharp rise in the use of national security letters by the FBI -- from 9,254 in 2005 to 12,583 in 2006, the latest data available. The letters seek customer information from banks, Internet providers and phone companies.

And as the Times notes, the Justice Department's performance in terrorism prosecutions has lately been underwhelming -- to wit, the farcical Seas of David case, where two juries have failed to reach a verdict.

As to what to make of these numbers, it depends on how much you're inclined to give the administration the benefit of the doubt.

On the civil liberty advocate of the question, the conclusion is clear:

"The number of Americans being investigated dwarfs any legitimate number of actual terrorism prosecutions, and that is extremely troubling -- for both the security and privacy of innocent Americans as well as for the squandering of resources on people who have not and never will be charged with any wrongdoing," said Lisa Graves, deputy director of the Center for National Security Studies, a Washington-based civil liberties group.

Meanwhile, the former head of the FBI national security law unit says it's just in the nature of the enterprise:

"Most of these threats ultimately turn out to be wrong, or maybe just the investigating makes them go away.... A lot more information is going to pass through government hands, and most of that is going to be about people who turn out to be innocent or irrelevant."

Three for three?

National Security Letters have been the FBI's favorite toy for the past several years, and who can blame them? With none of the hassle of a warrant and a gag order that ensures stealth, the NSL is a counterterrorism investigators best friend. The FBI issues tens of thousands of NSL requests each year (nearly 50,000 in 2006). After a major review by the Justice Department's inspector general last year found a host of abuses, FBI Director Robert Mueller promised that the FBI would clean up its act. But that doesn't necessarily mean that the number of NSLs issued has gone down -- just that agents are on alert that they can't be so sloppy.

Yesterday, the Electronic Frontier Foundation and ACLU announced that they'd succeeded in getting the FBI to back down from an NSL request issued in late 2007. The request had gone to the Internet Archive and had requested personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records. It just so happens that the Archive's Digital Librarian Brewster Kahle is on EFF's board of directors, and he decided to fight the request. Except it wasn't easy due to the gag order that accompanied the letter: "Because they initially were not allowed to discuss the NSL over the phone, Kahle and his attorneys had to drive to one another's offices whenever they wanted to talk about the case."

But Kahle's lawyers at the EFF and ACLU were ultimately successful -- and the ACLU says this means that they've won every time they've gone to court to fight a NSL:

Every time an NSL has been challenged in court, the FBI has backed off, said Melissa Goodman, an ACLU staff attorney. "That calls into question how much the FBI needed the information in the first place, and finally, whether the FBI needs this kind of sweeping and unchecked surveillance power."

The two other instances of NSL withdrawals involved a library and an Internet consulting business. In February 2004, the FBI served an NSL on the Internet firm. In November 2006, the FBI withdrew the letter, after a lawsuit by the ACLU, but maintained the gag order, which is why the firm has not been publicly identified. The lawsuit, which challenges the constitutionality of the law authorizing NSLs, is still pending.

In July 2005, the FBI served an NSL on Library Connection, a library consortium in Connecticut. That year, the ACLU sued on grounds similar to the other case. In April 2006, the FBI withdrew the gag order. Three months later, it withdrew the NSL as well.

Meanwhile the FBI says that the information requested was "relevant to an ongoing, authorized national security investigation." I guess they'll just have to get the information some other way.

From Newsweek:

The Bush administration is refusing to disclose internal e-mails, letters and notes showing contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill, according to recently disclosed court documents....

One court declaration, for example, confirms the existence of notes showing that a telecom representative called an Office of Director of National Intelligence (ODNI) lawyer last fall to talk about "various options" to block the lawsuits, including "such options as court orders and legislation....

The declarations were filed in court by government lawyers only after U.S. Judge Jeffrey White in San Francisco, who is overseeing the case, ordered them to fully process the Electronic Frontier Foundation's FOIA request for documents showing lobbying contacts by the telecoms. The government initially resisted even responding to the FOIA request, but White found that disclosure was in the public interest because it "may enable the public to participate meaningfully in the debate over" the pending surveillance legislation.

You can put this in the known unknowns category.

You know those secret legal opinions by the Justice Department that tell the administration how far it can go without breaking the law? After all the hullabaloo over John Yoo's five year-old torture authorization memo, Attorney General Michael Mukasey assured Congress that the Justice Department really was working on releasing other memos. But he made no promises.

And yesterday, during a hearing on secret law held by Sen. Russ Feingold (D-WI) before the Senate Judiciary Committee, an official from the Office of Legal Counsel promised that the Department would allow members of the intelligence committees to see them -- but lawmakers won't be able to keep paper or electronic copies. The Department says that it's thinking really hard about whether the Senate Judiciary Committee can see them as well. For some reason, Feingold and his peers didn't seem satisfied.

The man who was the top classification official until January of this year appeared at the hearing and testified that the Department's decision to mark Yoo's torture memo "secret" and keep it classified for years after it was withdrawn showed "either profound ignorance of or deep contempt for" classification rules.

But as Donald Rumsfeld put it, there are known unknowns and unknown unknowns. And with this group, it's always a toss-up which is more worrying:

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration's legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearance remain in force....

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration's contention that it can selectively modify executive orders "turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret."

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department's view that the president has the power to change executive orders.

Mr. Whitehouse said, "There's an important piece missing from that, which is not telling anybody and running a program that's completely different from the executive order."

Only seven more months of the Bush administration to go, and plenty more to find out.

While House Majority Leader Steny Hoyer (D-MD) presides over negotiations on the new surveillance bill, House Republicans have continued to push the Senate's version, which contains retroactive immunity for the telecoms, every which way they can.

Earlier this week, they tried to convince moderate Dems that it really was in their best interest (sub. req.):

"This is an opportunity for the 21 Blue Dog Democrats who signed a letter supporting the bipartisan, Senate-passed FISA bill to prove that they are serious about America's national security," said Michael Steel, House Minority Leader John Boehner's (R-Ohio) spokesman. "Will they choose to protect their constituents or will they back the Democratic leadership in kowtowing to trial lawyers and liberal special interests?"

Meanwhile, Rep. Jerry Lewis (R-CA) (yes, that Jerry Lewis) will try to tack on the Senate's bill to the war supplemental spending bill. As The Politico notes, the Dems on the appropriations committee will likely vote that down, but "at the very least, he would put members of the majority on the record rejecting the Senate bill, something Republicans have done repeatedly."

So far the moderate Dems have held strong to the Dem leadership's position that retroactive immunity is off the table. Hoyer has said that he hopes that negotiations will result in a new bill by late May. Regardless, the next showdown is likely to take place before August, when the wiretaps authorized under the Protect America Act will actually begin to lapse. So we'll see what happens then.

The administration's campaign to gin up alarm over the lapse of the Protect America Act having failed , Republicans first signaled a willingness to sit down with Democrats earlier this month.

Of course, the administration still wants its retroactive immunity for the telecoms that participated in the warrantless wiretapping program and the House Dems still refuse to grant that. So it's unclear what sort of compromise might emerge. But the talks have begun. From The Politico:

Congressional staffers from both parties met with administration officials Monday to discuss controversial electronic surveillance legislation, an aide to House Majority Leader Steny H. Hoyer (D-Md.)confirmed, offering a ray of hope for the long-stalled bill....

Behind the scenes, Hoyer has emerged as a deal maker on the issue over the past several weeks, working as the go-between for liberal House Democrats unwilling to accept immunity and Senate Republicans who would block any bill that does not protect the telecoms from prosecution....

One House GOP aide said Hoyer is trying to get a proposal by the end of the week.

"He has August on his mind," said the GOP aide. "He knows it is the real do-or-die time for this."

Several of the authorizations governing ongoing surveillance programs are set to expire in August, which could force congressional action.

During a Senate Appropriations Committee hearing this morning, Sen. Dianne Feinstein (D-CA) questioned Attorney General Michael Mukasey about that October, 2001 Justice Department memo in which John Yoo found that the Fourth Amendment, which protects citizens against "unreasonable searches and seizures," had "no application to domestic military operations."

Has that memo been withdrawn? If not, was it still in force? Feinstein wanted to know.

She found it difficult to pry an answer loose. "I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo.

Here's video of the exchange:

That memo remains classified, and Mukasey said that working to declassify portions of or entire secret Justice Department legal memos by Yoo and others was a "priority" of his, but he refused to supply a timeline for when he might make those determinations. He was very mindful of Congress' "legitimate oversight role," he said.

"This isn't a question of oversight," Feinstein said. "I'm just asking you, 'Is this memo in force that the Fourth Amendment does not apply?"

"The principle that the Fourth Amendment does not apply in wartime is not in force," Mukasey replied.

"That's not the principle I asked you about," Feinstein countered. The memo referred to domestic military operations, she said.

"There are no domestic military operations being carried out today," Mukasey replied.

"I'm asking you a question. That's not the answer."

"I'm unaware of any domestic military operations being carried out today," he repeated.

"You're not answering my question," she said.

Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board."

When Feinstein pronounced herself satisfied, Mukasey said, "with due respect, I don't think there's anything really new about that answer." He went on to imply that Yoo's discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. "The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."

"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.

"Without regard to the Fourth Amendment?"

"Yes."

"My understanding is that is not operative."

The Washington Post reported last week that the Justice Department "repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on 'the particular context and circumstances of the search.'"

More evidence that John Yoo was the most powerful deputy assistant attorney general in the Justice Department's history. The Washington Post reports this morning that when Yoo issued his now-infamous March 14, 2003 memo to the Pentagon, neither Attorney General John Ashcroft, nor his deputy Larry Thompson "were aware."

As Marty Lederman has pointed out, the fact that the memo was issued under Yoo's own name is further indication that this was a back door authorization of interrogation practices.

The Post also sheds light on Yoo's earlier October 23, 2001 legal memo, the one that declared that the Fourth Amendment had "no application to domestic military operations." The memo "focused on the rules governing any deployment of U.S. forces inside the country 'in the event of further large-scale terrorist activities' by al-Qaeda" according to "a Justice Department official." Just what that sort of operation that might have been discussed or how long that memo remained in effect are unclear. In fact, it's unclear whether it might still be relied upon:

Although the memo has not been formally withdrawn, the Justice Department yesterday repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on "the particular context and circumstances of the search," according to a statement.

All that is clear is that Department officials are insistent that that memo had nothing to do with the warrantless wiretapping program. But as the AP has shown, that appears not to be entirely true.

It's gotten to be something of a pattern with administration figures of late: making sweeping claims about national security matters that do not stand up to scrutiny. Just Monday, Sen. Russ Feingold (D-WI) complained that Director of National Intelligence Mike McConnell (who has something of a habit with this), had mischaracterized liberal opposition to retroactive immunity in the Senate as a bunch of impeachment-crazed loonies.

This time it's Attorney General Michael Mukasey who's catching flak. In a Q&A session after a speech last week, Mukasey said:

"[Officials] shouldn't need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that's the call that we may really want to know about. And before 9/11, that's the call that we didn't know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn't know precisely where it went."

The problem with this, as Glenn Greenwald at Salon has shown, is that nothing of this sort seems to have happened. Greenwald asked former executive director of the 9/11 Commission Philip Zelikow, who responded that he was "not sure of course what the AG had in mind" and came up empty guessing.

In a letter today, House Judiciary Committee Chair John Conyers (D-MI) calls Mukasey's statement very disturbing and writes, "I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have helped prevent the 9/11 attacks." And anyway, he adds, there's no reason why the FISA law would not have served to intercept the call in this instance. So what's Mukasey talking about? he wants to know.

You can read the letter, which was also signed by fellow committee members Jerrold Nadler (D-NY) and Bobby Scott (D-VA), below. The lawmakers also ask, not for the first time, for a copy of the October 23, 2001 memo by John Yoo that declared the Fourth Amendment kaput (it had "no application to domestic military operations").

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Do we really understand the scope of the administration's warrantless wiretapping program?

We've already written a number of times about the new book by New York Times reporter Eric Lichtblau. And on Tuesday, I interviewed Lichtblau, who began reporting on the administration's wireless wiretapping program back in 2004 and won the Pulitzer Prize along with James Risen for breaking the story in December of 2005.

Among other things, I got him to walk me through what we do and don't know about the program. How broad was the surveillance? What does the NSA's massive data mining project have to do with the warrantless wiretapping? And does Lichtblau suspect that his own phone has been tapped?

Lichtblau also responded to Rep. Jane Harman (D-CA), who posted at TPMcafe on Monday of this week. Harman was in turn responding to a passage in Lichtblau's book, where he writes that when he approached Harman in 2005 about the administration's then-still-secret warrantless wiretapping program, she'd shushed him and told him that The New York Times did the right thing by not publishing the story in 2004. Beginning in February of 2003, Harman was a member of the so-called "gang of eight," the eight lawmakers, four Republicans and four Dems, who were briefed on the surveillance program.

Harman didn't dispute his account, but did take issue with his characterization that her position on the program underwent "a dramatic transformation" after the Times broke the story. She wrote in her post that she'd been completely in the dark that the program had involved wiretapping without warrants.

To which, Lichtblau responds below:

I think that assertion was consistent with what we’ve heard, that these briefings were very limited, very carefully crafted, that they were only told a certain amount about the program and given sort of a filtered view of it. I believe all that much is true.

I guess the next question is why the gang of eight were willing to settle for that....

I’m not saying the program shouldn’t have continued, but it’s one thing for four members of Congress to know what they were approving and to say, okay. It’s another thing to say we had no idea, then to allow this to continue for five years.

The full interview is below. TPM research hound John Amick provided the transcription.

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Yesterday the ACLU noticed another of John Yoo's contributions to legal thought, tucked in a footnote of the March, 2003 memo. That footnote indicated that in a October 23, 2001 memo, Yoo had advised that the Fourth Amendment was too much bother. Here's that footnote:

The October 23, 2001 memo remains classified. And as the AP and The Wall Street Journal report, it's unclear exactly what sort of activities the memo was used to support. A White House spokesman denied that it had anything to do with the warrantless wiretapping program, but as the AP points out, "the government itself related the October memo to the [Terrorist Surveillance Program] when it included it on a list of documents that were responsive to the ACLU's request for records from the program."

And how long did the administration rely on this finding? "It was in use at least until March 2003 but not after January 2006," reports the Journal.

At the very least, it's apparent what Yoo thought about "Authority for Use of Military Force to Combat Terrorist Activities Within the United States." There seems to have been no limits to that authority. As Justin points out over at ABC, another of Yoo's infamous memos, the August 2002 "Torture Memo" signed by then-Office of Legal Counsel chief Jay Bybee, gave another indication of this:

A footnote to the Bybee document said that the October 2001 memo also concluded that Posse Comitatus –- an 1878 statute barring the military from participating in "law and order" missions domestically, under most circumstances – does not apply to the war on terror.

House Majority Leader Steny Hoyer (D-MD) confirms this morning's Wall Street Journal story that the administration has changed its tune. From Roll Call (sub. req.):

The Bush administration is “now in a position where they want to talk about a possible compromise” on stalled electronic spying legislation, House Majority Leader Steny Hoyer (D-Md.) told reporters today.

“I think, frankly, they were surprised” that House Democratic leaders were able to pass their preferred version of the bill, which would reauthorize and update the 1978 Foreign Intelligence Surveillance Act, just before lawmakers left for the two-week spring recess, he said.

Hoyer said he has been in conversations with administration officials and with House Minority Whip Roy Blunt (R-Mo.), all of whom have indicated that they are ready to reach a compromise.

As we've often noted here, Director of National Intelligence Mike McConnell has frequently gotten into trouble for making statements that were either impolitic or, well, not true. And last week, in his zeal to demonstrate the unreasonableness of liberal critics, he made a statement that was both.

Speaking at Furman University, he said (pdf):

We had a bill go into the Senate. It was debated vigorously. There were some who said we shouldn't have an Intelligence Community. Some have that point of view. Some say the President of the United States violated the process, spied on Americans, should be impeached and should go to jail. I mean, this is democracy, you can say anything you want to say. That was the argument made. The vote was 68 to 29. It's a bill we can live with. It's the right bill.

Sen. Russ Feingold (D-WI) is not happy. Sure, many senators -- particularly Feingold and Sen. Chris Dodd (D-CT) -- objected to key aspects of the legislation, including the provision granting retroactive immunity to the telecoms. But the debate was nothing like McConnell describes. And Feingold writes in a letter to McConnell today that he ought to either back up his statement or "issue an immediate correction and an apology."

Feingold concludes:

While all sides of this debate deserve to be heard, to falsely attribute statements to United States Senators serves only to mislead the American people. It also undermines your credibility and that of the position of Director of National Intelligence.

We put a call in to McConnell's office to see what the response is. We'll let you know when we hear back.

You can see Feingold's letter here or read it below.

Update: As Spencer reported over at The Washington Independent last month, McConnell was similarly glib in criticizing those who disagree with him at a talk at Johns Hopkins.

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OK, things were said. Patriotism was impugned, fear was mongered, attack ads were run. But that doesn't mean we can't work something out, does it?

The administration is ready to talk turkey, reports The Wall Street Journal. But if the administration "has signaled to Democratic lawmakers it is open to negotiation" about the surveillance bill, it's not entirely clear just yet where the administration is willing to give.

The centerpiece of negotiations, of course, will be whether telecoms will receive retroactive immunity for their participation in the administration's warrantless wiretapping program. Though a number of Senate Dems crossed over to support that, the House has managed to hold firm, twice passing a bill without retroactive immunity. Some Dems are floating "a pared-back version of immunity," such as limiting immunity to certain aspects of the program or capping possible damages. Talks about other aspects of the legislation, for instance concerning judicial oversight of surveillance, might come more easily.

But the reason for the White House's new tack is pretty clear: they used every weapon at their disposal -- presidential statements and press conferences, alarming letters and public appearances by the director of national intelligence and attorney general, time pressures created by the lapsing of legislation or a Congressional recess -- and none of it worked. The House, after all that, still passed a bill a world away from what the administration was pushing for. It was, as the Journal points out, a strikingly different outcome from August, when the White House's squeeze play worked to perfection.

The difference? Well, a number of things. But one thing in particular is the fact that Dems no longer trust the administration's point man, DNI Mike McConnell. From today's Los Angeles Times:

On the eve of a House vote on controversial wiretapping legislation last month, the nation's intelligence director, J. Michael McConnell, convened a secret weekend meeting in northern Virginia with members of the House Intelligence Committee.

The two-day session was designed to promote a calmer atmosphere for discussing an array of intelligence issues, including the nation's eavesdropping laws. But participants said the event ended with a series of acrimonious exchanges.

Democrats accused McConnell of making exaggerated claims and of doing the bidding of the Bush administration, according to officials who attended the event. McConnell bristled at the Democrats' charges, and chastised members of the committee for failing to defend the intelligence community amid a barrage of bad press.

As a wise man once said, "Fool me once, shame on — shame on you. Fool me — you can't get fooled again."

Earlier this month, we published an excerpt from Eric Lichtblau's new book, Bush's Law, in which Lichtblau wrote that when he'd approached Rep. Jane Harman (D-CA), then the ranking member of the House intelligence committee, about the administration's then-still-secret warrantless wiretapping program, she'd shushed him and told him that The New York Times did the right thing by not publishing the story in 2004.

In a post at TPMCafe today, Harman doesn't dispute Lichtblau's telling of the interaction, but does dispute that her position on the program underwent "a dramatic transformation," as Lichtblau writes, after Lichtblau and James Risen of the Times broke the story under the headline "Bush Lets U.S. Spy on Callers Without Courts" in December of 2005.

Before the story broke, she writes, she had no clue that "the Administration was violating FISA." She writes that the gang of eight had been briefed on "an NSA effort to track al Qaeda communications using unique access points inside the US telecommunications infrastructure," but that they'd been told nothing about warrantless wiretapping. Her "first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of “inherent” executive power," she writes, came after the story broke, when she was free to consult her staff.

So what does Lichtblau think of this? Well, we'll be interviewing him tomorrow about his book and we'll pop the question.