Rep. John Conyers (D-MI) isn't wasting any time. On August 4, literally the day that the Protect America Act passed the House, Speaker Nancy Pelosi wrote to Conyers and intelligence committee chair Silvestre Reyes (D-TX), imploring them to come up with alternative legislation for foreign-to-domestic surveillance.

And this afternoon, Conyers announced that his House Judiciary Committee will hold a hearing on the now-gutted Foreign Intelligence Surveillance Act on September 5, the first Thursday back after the Congressional recess.

The current act expires in six months, but relentless pressure from liberals in the House to immediately scale back its vast powers is forcing Pelosi's hand. During the debate over the act on August 4, Conyers focused on "reverse targeting" -- warrantless surveillance of a person inside the U.S., potentially occurring when he or she speaks to someone abroad -- so expect the committee hearing to reflect that focus.

Get ready for more revelations about the extent of the National Security Agency's post-9/11 warrantless surveillance program. Newsweek's Michael Isikoff reports that the Senate Judiciary Committee is going to hear testimony from Jack Goldsmith, the former head of Justice Department's Office of Legal Counsel, a key ally in James Comey's efforts as acting attorney general to scale back what they considered an illegal program.

A Senate source confirms to TPMmuckraker that the committee "expects him to testify at a hearing sometime after Congress reconvenes," but no dates have been announced yet. Nor is there word about other witnesses, or if Goldsmith -- who didn't testify along with Comey during his dramatic May 15 hearing -- has been subpoenaed. Isikoff reports that that the hearing will likely occur next month.

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With a heavy heart, Director of National Intelligence Michael McConnell told a Texas newspaper last week that due to the public debate over revising the Foreign Intelligence Surveillance Act, Americans will die.

McConnell, who before the late July-early August FISA legislation enjoyed broad bipartisan respect, placed the predicted deaths of Americans at the doorstep of an open society. Thanks to widespread efforts to understand what the NSA's highly classified warrantless surveillance program is -- from journalists, from legal scholars, from national security experts, from elected officials -- the Bush administration was forced last month to reveal too much about how the program operates, in order to correct misunderstandings. And that means, McConnell said, "Americans are going to die."

...So that's, we've got a lot of territory to make up with people believing that we're doing things we're not doing.

Q: Even if it's perception, how do you deal with that? You have to do public relations, I assume.

A: Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we're doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they're using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.

Emphasis added.

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The Quakers can sleep easier. This morning, the Pentagon announced that it's canceling a database created to monitor threats to Defense Department installations in the U.S. that ended up compiling lists of citizens engaged in peaceful, constitutionally-protected protest speech. For good measure, the Talon database was run by an intelligence office that doled out millions to crooked defense contractor MZM.

Talon, which compiled unverified threat information related to domestic Pentagon-run facilities, will go out of business on September 17. That's a long-planned obsolescence: in April, Defense intelligence chief James Clapper stated that the Pentagon needed to "lay to rest the distrust and concern about the department's commitment to civil rights." And for good reason. Internal DOD memoranda obtained and disclosed by the ACLU revealed that Talon had ensnared information on over 2,000 American citizens, some for posing little more of a threat than "the possibility" of "some type of vandalism."

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Sure, the FISA Court has been reduced by the Protect America Act to a rubber stamp for the Justice Department and the Director of National Intelligence. But don't weep for the court. As a kind of consolation prize, it's getting new office space!

The nation's spy court is moving from its longtime home at the Justice Department to a nearby federal courthouse, a move that some hope will assert the court's independence even as Congress shifts some of its authority to the Bush administration.

Since its inception in 1978, the Foreign Intelligence Surveillance Court has been located in a secure area at Justice Department headquarters, where government attorneys armed with secret evidence seek permission to conduct surveillance.

"It's always been an anomaly and it suggested to critics that the court was subordinate to its Justice Department hosts," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

Now that's a new vista in cynicism: moving the FISA Court out of Justice right when it really does become an adjunct of executive power.

During a press conference this afternoon, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) announced that the White House had still not responded to the committee's subpoena for documents relating to the legal basis for the warrantless surveillance program. "Time is up," Leahy said, "we've waited long enough." He went on to say, however, that he remained open to cooperating with the White House for the production of the documents: "I prefer cooperation to contempt." But if the administration has still not responded to the subpoena by September when Congress returns from recess, he said that he would pursue contempt proceedings in the committee "if that's what it takes."

You can see video here:

Leahy made clear that contempt proceedings would be a measure of last resort and that he'd prefer getting the documents through cooperation to a long court battle. On the other hand, he signaled that there's a limit to what that cooperation might mean. Asked by a reporter about noise from the White House that it would need certain "accommodations" in turning over documents relating to the surveillance program, Leahy said "the only accommodations we tend to get from the White House are 'do it our way and we'll be happy with you.'" That said, he clearly remained open to negotiating, saying that it was a choice between a court battle and "find out what happened."

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On Friday, the White House requested a second extension to the deadline to comply with subpoenas issued about the origins of the warrantless surveillance program. Senate Judiciary Committee Chairman Patrick Leahy's (D-VT) response? "The deadline is 2:30," says Leahy spokeswoman Erica Chabot.

White House counsel Fred Fielding wrote in a letter to the committee Friday that the White House needed until after Labor Day to cull its files for information pertinent to the legal justifications for the surveillance program -- and, in any event, practically all of it falls under executive privilege.

The original compliance deadline was July 18, but the committee and the White House agreed to an extension after Fielding and chief of staff Josh Bolten called Leahy to say that "thorough collection and review of responsive documents" would take until around August 1. After another week lapsed beyond that, on August 8, Leahy told the White House that August 20 -- today -- is the final deadline.

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Don't get your hopes up yet. But the Foreign Intelligence Surveillance Court has told the government that it needs to submit an argument for why the court shouldn't disclose rulings from earlier this year on the warrantless surveillance program that prompted the Bush administration to gut the Foreign Intelligence Surveillance Act.

Ten days ago, the ACLU filed a motion with the secret court seeking the release of two contentious rulings in particular: a January 10 ruling that Alberto Gonzales described as "innovative" enough as to allow the surveillance program to be placed under FISA; and the ruling from the spring that led to the wholesale FISA revision. In a conference call today, Jameel Jaffer of the ACLU disclosed that around lunchtime, the court, in response to the ACLU's "unprecedented request," asked the government to file any objections it has to a disclosure by August 31. Jaffer cautioned the court action doesn't herald actual disclosure, but it shows that the court is taking the ACLU's request seriously.

The workings of the FISA Court have been a black box in the entire affair. It remains hard to understand how the court could be so "innovative" in January with regard to the Terrorist Surveillance Program but so restrictive in the spring. The court's notice today brings us a step closer to finding out how much revision to FISA was really warranted.

Wired's Ryan Singel has a great find in his review of FBI Director Robert Mueller's March 2004 notes on the warrantless-surveillance imbroglio. One of the aides Mueller met with the day Acting Attorney General James Comey likely informed him that he wouldn't reauthorize the surveillance program is Michael A. Fedarcyk, then the chief of the Counterterrorism Division's Communications Exploitation Section. That meeting may shine a light into how information generated from the National Security Agency's surveillance of international communications made its way into domestic terrorism investigations.

The Communications Exploitation Section is where FBI counterterrorism analysts sift through communications of suspected terrorists to determine patterns of communication within the U.S. to discover hidden networks. Singel notes that Fedarcyk's presence at the March 9, 2004 morning meeting with Mueller indicates that his office was involved, somehow, in the NSA surveillance effort: "perhaps only as a receiver of leads from the NSA -- perhaps as a partner in the government's alleged data-mining of U.S. citizens phone and internet usage records."

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There's no shortage of intrigue over the Bush administration's warrantless surveillance efforts contained in FBI Director Robert Mueller's just-released notes on the March 10, 2004 tussle in John Ashcroft's hospital room between Alberto Gonzales, Andy Card and Jim Comey.

First thing to note. Mueller testified on July 26, contra Gonzales, that the legal dispute between Gonzales and Acting Attorney General Jim Comey that prompted the rush to Ashcroft's hospital room had to do with the program now known as the Terrorist Surveillance Program. (Gonzales insisted on July 24, as he had in testimony last year, that Comey objected to "other intelligence activities," not the TSP.) The surveillance program known as the TSP was but one component of a constellation of surveillance activities, even though Comey and others at the time of the March 2004 controversy considered the whole effort -- authorized under a single 2001 executive order -- to be a unitary enterprise. Now notice that all throughout Mueller's memo, he refers to "program" -- singular.

Secondly, the only non-redacted portion of the notes concerns the Ashcroft hospital visit, which takes up only a scant four paragraphs. Ashcroft -- who, contrary to Gonzales' portrayal, is described in Mueller's notes as "feeble, barely articulate, clearly stressed" -- isn't talking about what happened during the visit. But Mueller reveals something intriguing. According to the FBI director, Ashcroft tells Card and Gonzales that "he was barred from obtaining the advice he needed on the program" -- again, note program, singular -- "by the strict compartmentalization rules of the [White House.]" Now that's cronyism! For the first time, there's the suggestion that even John Ashcroft -- the attorney general of the United States and by all accounts a loyal Bushie -- didn't know all there was to know about the warrantless surveillance efforts. Apparently, Ashcroft wasn't considered trustworthy enough to be kept in the loop on the most legally controversial program of them all -- though his counterpart at the White House, and eventual successor, clearly was.

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During his testimony before the House Judiciary Committee last month, FBI Director Robert Mueller revealed that he had kept notes of the infamous encounter between James Comey and Alberto Gonzales over John Ashcroft's hospital bed. Mueller had taken the notes, he said, because the situation was "out of the ordinary."

Well, here they are. They were turned over to the Committee earlier this week and released by Chairman John Conyers (D-MI) today. We'll have analysis of what they tell us in a moment.

Update: Here's Conyers' statement:

“Director Mueller’s notes and recollections concerning the White House visit to the Attorney General’s hospital bed confirm an attempt to goad a sick and heavily medicated Ashcroft to approve the warrantless surveillance program. Particularly disconcerting is the new revelation that the White House sought Mr. Ashcroft’s authorization for the surveillance program, yet refused to let him seek the advice he needed on the program.

“Unfortunately, this heavily redacted document raises far more questions than it answers. We intend to fully investigate this incident and the underlying subject matter that evoked such widespread distress within the Department and the FBI. We will be seeking an unredacted copy of Director Mueller’s notes covering meetings before and after the hospital visit and expect to receive information from several of the individuals mentioned in the document.”

The Justice Department argued yesterday before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco that two class-action lawsuits involving warrantless surveillance needed to be thrown out of court for potentially exposing state secrets. And it practically got laughed out of court.

The two cases, Hepting v. AT&T and al-Haramain v. Bush, both center on aspects of the secret surveillance effort run by the National Security Agency after September 11, 2001. In the former case, an ex-AT&T employee claims that the company illegally provided the government with access to a panoply of subscriber information through a system of communications hubs along the west coast. The latter case involves an al-Qaeda-linked charity that claims to have evidence that it was the target of illegal surveillance.

The Justice Department claims that neither case can go forward without compromising crucial intelligence-gathering materials, and asked the judges to dismiss them. Deputy Solicitor General Gregory G. Garre and DOJ lawyer Thomas M. Bondy didn't find them particularly sympathetic.

"This seems to put us in the 'trust us' category," Judge M. Margaret McKeown said about the government's assertions that its surveillance activities did not violate the law. " 'We don't do it. Trust us. And don't ask us about it.' "

At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that "other avenues" are available. "What is that? Impeachment?" Pregerson shot back.

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Something of great concern to civil-liberties hawks: the Department of Homeland Security is about to receive expanded access to U.S. intelligence's powerful spy satellites.

The decision, made three months ago by Director of National Intelligence Michael McConnell, places for the first time some of the U.S.'s most powerful intelligence-gathering tools at the disposal of domestic security officials. The move was authorized in a May 25 memo sent to Homeland Security Secretary Michael Chertoff asking his department to facilitate access to the spy network on behalf of civilian agencies and law enforcement.

Until now, only a handful of federal civilian agencies, such as the National Aeronautics and Space Administration and the U.S. Geological Survey, have had access to the most basic spy-satellite imagery, and only for the purpose of scientific and environmental study.

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Here's something that comes to us via very-alert DailyKos diarist drational. The day after Alberto Gonzales and Andrew Card ran to John Ashcroft's hospital room to have him overrule acting attorney general James Comey's determination that the administration's warrantless surveillance program was illegal, the White House gave a briefing on the super-secret program to none other than Tom DeLay.

Practically no members of Congress knew about the surveillance. The White House typically limited Congressional notification about the program to the bipartisan political leadership of the House and Senate and the heads of the Congressional intelligence committees -- the so-called Gang of Eight. DeLay, then the top House Republican, has no intelligence experience, and just the day before, at the White House, House Speaker Dennis Hastert received a briefing about the program, making DeLay's presence the next day redundant. The second-ranking House Democrat in 2004, then-whip Steny Hoyer of Maryland, didn't receive a similar briefing.

"It sounds like a political decision on the part of the White House, rather than one driven by legal imperatives or Congressional norms," says Steven Aftergood, an intelligence expert with the Federation of American Scientists. "The obvious speculation is that they judged that they had a political fight on their hands and wanted to enlist him on their side."

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What's happening in Room 641A of 611 Folsom Street in San Francisco remains one of the most closely-held secrets in the U.S. government. According to a former AT&T employee who assisted two technicians cleared to work in the telecommunications complex on Folsom Street, 641A served as a vacuum cleaner for phone calls and e-mails of terrorism suspects, routing them to the National Security Agency.

The claims made by the ex-employee, Mark Klein, are the basis for a class-action lawsuit against AT&T and affiliated telecoms for illegally harvesting information from U.S. citizens. Tomorrow, reports The Washington Post, judges from the Ninth Circuit Court of Appeals will hear arguments as to whether the class action should go forward -- or whether the government is right that 641A is a state secret, and can't be litigated without compromising national security. The answer probably won't be determinative -- both sides have vowed to appeal up to the Supreme Court -- but if the case is shut down, a public window on the Bush administration's warrantless surveillance activities, recently blessed by a Congressional overhaul of the Foreign Intelligence Surveillance Act, will slam shut.

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Here's a guide for future intelligence chiefs who want to take a shortcut around the law. Start out with a genuine problem. Propose a genuine solution, but build into it a bit more leeway for intelligence collection. Negotiate slowly and deliberately. Then use the threat of a terrorist attack at the end of the congressional session to ram through an evisceration of the problematic law, carving out from it all meaningful protections for American citizens. Watch a stunned opposition acquiesce.

Both the Washington Post and the New York Times present that general outline to explain how the Bush administration gutted the Foreign Intelligence Surveillance Act earlier this month. As reported earlier, the FISA Court ruled in March -- the Post provides the date -- that foreign-to-foreign communications, previously unprotected under FISA, required warrants for surveillance as they passed through U.S. communication switches. Admiral Michael McConnell, the director of national intelligence, saw the National Security Agency "losing capability," in the words of one intelligence official, due to a surveillance backlog generated by the Court ruling.

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From the AP:

Lawyers for Guantanamo Bay detainees asked a federal judge Thursday to invalidate a days-old law that lets government agents eavesdrop on suspected terrorists without first getting court-approved warrants.

They said the measure signed into law Sunday by President Bush is illegal because it gives the national intelligence director and the U.S. attorney general too much power to intercept communications of suspected terrorists overseas -- even when they are talking to someone in the United States.

That didn't take long.

Good luck with this one. Yesterday, the ACLU filed a motion (pdf) to declassify recent rulings of the secret Foreign Intelligence Surveillance Act (FISA) Court that administration officials cited in order to press legislators to massively overhaul FISA.

In particular, the civil-liberties watchdog wants the January 10, 2007 FISA Court ruling that Attorney General Alberto Gonzales cited as "innovative" enough to merit moving the Terrorist Surveillance Program under FISA; as well as the mysterious spring ruling that FISA applied to foreign-to-foreign communications routed through the United States.

Members of Congress referenced and characterized certain of the sealed materials in explaining support for the amendments (to FISA). Over the next six months, Congress will consider whether these amendments should be made permanent. Publication of the sealed materials will permit members of the public to participate meaningfully in this debate, evaluate the decisions of their elected leaders, and determine for themselves whether the proposed permanent expansion of the executive's surveillance powers is appropriate.

And if the public-interest argument the ACLU makes doesn't work, it adds another: Rep. John Boehner (R-OH) already revealed the outline of the ruling anyway.

Saying that he's waited long enough for the White House to comply, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) set a new deadline for documents related to the administration's warrantless wiretapping program today. August 20th is the date, and Leahy expects to receive documents concerning the legal basis for the program (in its variety of forms dating back to 2001), in addition to authorization documents.

Leahy had, at the request of White House counsel Fred Fielding, delayed a prior deadline. But now that an informal date suggested by the White House has come and gone, Leahy writes to Fielding that he's running out of patience:

Despite my patience and flexibility, you have rejected every proposal, produced none of the responsive documents, provided no basis for any claim of privilege and no accompanying log of withheld documents. I had been requesting this information for an extended time before issuing the subpoenas.

Included in that request are documents surrounding then-Deputy Attorney General James Comey's refusal to reauthorize the surveillance program. That refusal led to the March 10, 2004 showdown between Comey and Alberto Gonzales at John Ashcroft's hospital bed.

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That was a short honeymoon for Admiral Michael McConnell, director of national intelligence. His nomination to the top intelligence job was viewed as a rare instance of Bush-administration maturity, as his tenure at the helm of the National Security Agency earned him a great deal of bipartisan respect. The chairman of the Senate intelligence committee, Jay Rockefeller (D-WV), greeted his confirmation the next month by beaming, "It is hard for me to imagine a better choice than Admiral McConnell."

But after last week's rapid, controversial revision of the Foreign Intelligence Surveillance Act, in which McConnell played chief Congressional negotiator, lawmakers are wondering: Was McConnell set up by the Bush administration? Or is he a willing flunky?

At issue is Thursday's FISA deal. As TPMmuckraker reported, Democrats left a marathon negotiation session with McConnell believing he had agreed to a deal. The proposed revision to FISA would allow the NSA to obtain foreign communications without a warrant. But soon they learned that the White House had rejected the bargain and were left perplexed by McConnell's acquiescence -- a confusion compounded by Friday's Senate passage of a far broader bill.

Despite Democratic recollections of McConnell citing "pressure" from above, both he and the White House now deny that there was ever any "deal" for the administration to scrap. But the acrimony that followed among Democrats, fueled by widespread criticism of the act from civil libertarians and of the Democrats from the press, was intense. After all, the administration used McConnell to negotiate its bill in order to exploit his credibility: its other principal architect, Alberto Gonzales, is politically radioactive. Chairman of the House intelligence committee Silvestre Reyes (D-TX) tells The Los Angeles Times that while he thinks McConnell negotiated in good faith, "I think he got caught up there at the end in the politics of it."

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Taking advantage of the difficulty many experts have in understanding Sunday's revision of the Foreign Intelligence Surveillance Act, the Bush administration is pleading exasperation with misunderstandings of the law. Why can't people understand, asked two senior administration officials in a conference call with reporters yesterday, that the changes to FISA impact only a handful of people? Foreigners, at that! "We're really talking about targeting people, directed targeting at people overseas," assured one of them.

Ah, if only it were so.

The most conspicuous aspect of the Protect America Act of 2007 is that nowhere in the bill is there anything approaching individualized suspicion of who is to be monitored. The Attorney General and the Director of National Intelligence can authorize surveillance on anyone "reasonably believed to be outside the United States," provided that a "significant purpose" of the surveillance is the "acquisition of foreign intelligence information." Nowhere do the two officials need to specify, to the FISA Court or the Congress, precisely who is under surveillance. They need only tell the FISA Court that their surveillance methods are geared at communications that probably outside the U.S., primarily. If communications involving people in the U.S. are part of that communication chain, so be it -- as long as the government says it didn't mean to acquire the information as a primary "target." The FISA Court can only object, months after the fact, to the surveillance if those methods are "clearly erroneous."

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Experts are still digesting the revision to the Foreign Intelligence Surveillance Act signed (pdf) by President Bush yesterday, known as the Protect America Act. It's a fairly safe bet, judging by the amount of expert disagreement about the act's provisions, that most members of Congress don't know what they've just passed.

What's clear is that now the Attorney General and the Director of National Intelligence can now obtain the international communications of U.S. citizens or residents without a warrant provided that such surveillance is "reasonably believed" to be "directed at" persons outside the country. The FISA Court's new, restricted role here is to determine -- up to six months after the fact of the surveillance -- that the government's procedures in seeking the primarily-foreign data is not "clearly erroneous." If it isn't, the surveillance goes forward.

One of the most controversial, and little understood, provisions in the bill changes the definition of electronic surveillance -- but not substantively. In short, it takes out from Fourth Amendment protections surveillance of a person "reasonably believed to be located outside of the United States," no matter who that individual communicates with, inside or outside the United States. "This deems certain acts as not electronic surveillance as a legal matter, when they certainly would be surveillance as a factual matter," says Marc Rotenberg of the Electronic Privacy Information Center.

In fact, the legality of collecting such information without a warrant turns entirely on who the government says it's primarily interested in. "If you are talking with somebody overseas, and the government intercepts that communication, it is electronic surveillance if government says they were directing the surveillance at you," says Jim Dempsey, policy director of the Center for Democracy and Technology. That kind of electronic surveillance would require, under FISA, a probable-cause warrant. But the law allows the government to skirt that requirement by shifting the emphasis of its investigation: "It is not electronic surveillance if the government says it's directing the surveillance at a person overseas."

This goes beyond the Terrorist Surveillance Program. As described by President Bush in December 2005, communications monitored by the TSP had to involve, on one end, a known al-Qaeda figure. Now, the subject of surveillance simply has to be "reasonably believed" to have "foreign intelligence information" and be, more likely than not, outside the U.S. "The only thing they can't do is that they can't ask the FBI to go put a tap on your phone to listen to your phone conversations with other people in the U.S.," says Kate Martin of the Center for National Security Studies. "But what they basically do is they scoop up the stream of all calls going in and out of the U.S. ... There's no individualized suspicion, no individualized collection or acquisition" of information.

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By now you've probably heard that the House and Senate passed bills that gutted FISA. The bills, supported unanimously by Republicans* and a handful of Democrats in both houses, categorically exclude from FISA court oversight all surveillance "directed at a person reasonably believed to be located outside of the United States." As Marty Lederman explains:

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

The key term, obviously, is "directed at." The bill includes no definition of it.

The bill's one saving grace is that it will expire after six months, though House Speaker Nancy Pelosi has already signaled that she won't wait near that long, wanting instead to bring up legislation "as soon as possible," i.e. early September, after the August recess.

We'll also have more on this tomorrow.

*Update/Correction: Actually two Republicans in the House voted against: Reps. Walter Jones (R-NC) and Tim Johnson (R-IL). As commenters below have helpfully provided, here's the House roll call and here's the Senate.

Today, while standing with Director of National Intelligence Mike McConnell, President Bush lamented the inability of Congressional Democrats to give McConnell the tools he needed to capture the communications of terrorists:

When Congress sends me their version, when Congress listens to all the data and facts and they send me a version of how to close those gaps, I'll ask one question, and I'm going to ask the DNI: Does this legislation give you what you need to prevent an attack on the country? Is this what you need to do your job, Mr. DNI? That's the question I'm going to ask. And if the answer is yes, I'll sign the bill. And if the answer is no, I'm going to veto the bill.

And so far the Democrats in Congress have not drafted a bill I can sign. We've worked hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk.

There's only one problem with Bush's statement: it isn't true.

A key Democrat in the negotiations, House Majority Leader Steny Hoyer (D-MD), says that a deal had in fact been reached with McConnell, who has been busy lobbying Congress on a FISA update all week. "We had an agreement with DNI McConnell," Hoyer spokeswoman Stacey Bernards tells TPMmuckraker, "and then the White House quashed the agreement."

A bill that House Democrats put forward today does not require the National Security Agency to seek warrants for surveillance of persons inside the United States -- only that the Attorney General will issue "guidelines" as to how collecting the communications of U.S. persons should operate.

A spokesperson for McConnell, Ross Feinstein, says he is "not going to comment" on "what agreements have been or haven't been reached." He adds that McConnell has been "up front as to what the intelligence community needs, obviously what he proposed on April 13 and put in his statement at 11:35 last night," and that McConnell "continues to work closely with members on the Hill." We have a call out to the White House for comment.

Update: White House representatives haven't responded to our request for comment. We'll let you know what they say if and when they do.

Late Update: I'd be remiss not to mention that earlier this afternoon, Marty Lederman heard the same state of play between Bush, McConnell and the House Dems that this post confirmed.

From the Bush administration's perspective, the House proposal to amend the Foreign Intelligence Surveillance Act goes way too far to restrict the intelligence community from collecting crucial information on terrorists. Yet looking at the bill, it's hard to see what the White House's objections could be.

For one thing, as TPMmuckraker reported earlier today, under the bill, the primary role for the FISA Court is in issuing generalized surveillance warrants for "persons reasonably believed to be outside the United States." Those warrants don't have to name their targets, nor locate where the surveillance will take place if the attorney general shows that the surveillance methods used will mostly exclude U.S. citizens and residents. Such warrants will be approved, according to section 105(c)(1)(C), if the FISA judge determines that collecting "foreign intelligence information" is merely a "significant purpose" of the AG's request.

What happens to U.S. persons who may be tapped? There isn't any requirement for a probable-cause-derived warrant to continue surveillance on them. Instead, the attorney general would only have to create "guidelines" for surveillance on people in the U.S. as the result of one of the aforementioned warrants. Every 60 days the Justice Department's inspector general would have to report to the FISA Court and to the Congressional intelligence committees on compliance -- including handing over a list of names of those U.S. citizens and residents under surveillance during that time period. Nothing in the bill indicates any power for either the court or Congress to do anything about any American caught in the surveillance web.

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Congress is moving forward with legislation updating the Foreign Intelligence Surveillance Act despite President Bush's objections. We've got the text of the House bill here.

More soon.

Just out from Congressional Quarterly:

Congressional Democrats and the White House have broken off negotiations over a legislative fix to an intelligence gap without a deal, but Democrats threatened to press forward with a bill regardless.

House Democratic leaders were taking procedural steps at midday Friday to allow them to call up a bill to revise the Foreign Intelligence Surveillance Act (FISA — PL 95-511) to address problems that have been identified by intelligence community leaders.

In the Senate, Democrats remained divided over the legislation. Independent Bernard Sanders of Vermont, a liberal who aligns with Democrats, was voicing concerns about privacy implications of the bill. “Everything’s still under discussion,” he said.

This just in, from a knowledgeable source on the FISA-update negotiations:

I understand that the bills they are considering dropped the second requirement of the Rockefeller bill -- that the government must determine whether they're picking up a significant number of calls into the US and get a FISA probable cause warrant if they are.

If so, that would be a big setback for the civil liberties side of the debate. According to the source, further surveillance of communications in the U.S. wouldn’t require a probable cause warrant at all. Instead, the attorney general would have to certify to either FISA, Congress, or both – it’s not clear right now – that the initial surveillance authority granted by the FISA court isn’t being abused. And if that's the case, then the program would allow for massive domestic surveillance with practically no FISA Court review.

The Senate Dems entered into a caucus meeting an hour ago that I understand will lead to some news on the FISA-negotiation front. More soon.

How about post-facto FISA review, guys? Interested?

That's the message from Admiral Michael McConnell, the director of national intelligence. After a week of grueling briefings on Capitol Hill lobbying for an overhaul of the Foreign Intelligence Surveillance Act, McConnell last night released a statement reluctantly endorsing putting terrorist surveillance back under FISA Court supervision -- with certain restrictions. The key passage:

However, to acknowledge the interests of all, I could agree to a procedure that provides for court review—after needed collection has begun—of our procedures for gathering foreign intelligence through classified methods directed at foreigners located overseas. While I would strongly prefer not to engage in such a process, I am prepared to take these additional steps to keep the confidence of Members of Congress and the American people that our processes have been subject to court review and approval.

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There's irresponsibility. There's demagoguery. And then there's Trent Lott.

It turns out the Capitol Police have bolstered security around the U.S. Capitol after a recent al-Qaeda communique threatened an attack on Washington. Lott, according to Roll Call (sub.req.), responded with characteristic gravitas. In light of the heightened threat, Congress can either amend the Foreign Intelligence Surveillance Act or all of us can run screaming into the inferno.

Senate Minority Whip Trent Lott (R-Miss.) ominously advised Thursday that Congress needed to pass changes to terrorist surveillance laws before leaving for the August recess and warned that otherwise “the disaster could be on our doorstep.”

Further demonstrating his counterterrorism sagacity, when asked if people should leave Washington, D.C., during the month of August, Lott replied that "I think it would be good to leave town in August, and it would probably be good to stay out until September the 12th." By contrast, a former Capitol Hill chief had the temerity to note that, according to U.S. intelligence analysis he'd been privvy to, "Americans tend to be much more oriented toward anniversaries and the jihadists seem to be less so. I've seen over the years where we concentrate on dates and the analysts say, 'Don’t get wrapped up in dates because our terrorist jihadist enemies bide their time.'"

Negotiations continue between the White House and Senate Democrats to overhaul the Foreign Intelligence Surveillance Act, and a deal might be done as early as this evening. But Sen. Russell Feingold tells Roll Call (sub.req.) that he'd rather scrap the summer congressional recess than scrap civil liberties in the name of getting a deal done by Monday, when Congress takes a holiday:

Saying Congressional Democrats and Republicans were moving “awfully quickly” on a White House proposal to make it easier to eavesdrop on suspected overseas terrorists, Feingold said he is in “no hurry” to leave town for the August recess.

“I don’t feel the need to get out of here. I would much rather stay here than have us make a terrible mistake,” said Feingold, who has made a name for himself as a champion on civil liberties in the Senate. “This is not the kind of thing that should be done on the fly, and I am prepared to stay here as long as it takes to fix it. Or, if they need force this through, I’m not going to make it easy, if they don’t make it better.”

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Very, very few people know the extent of the NSA surveillance program, part of which is called the Terrorist Surveillance Program and the rest of which we call Program X. We'd be dishonest if we suggested to you we knew how it works. But take a look at an interview Julian Sanchez did with former NSA analyst Russell Tice for Reason magazine in January 2006.

A brief recap: the NSA fired Tice in 2005 after he alleged that a colleague was a spy for the Chinese. (A DOD inspector general's report found "no evidence" to support the charge.) He outed himself in December of that year as a source for James Risen, one of the New York Times reporters who broke the NSA surveillance scandal, and alleged that the program as acknowledged publicly by the president was, he told me last year, "just the tip of the iceberg." That would certainly fit in with Alberto Gonzales and Mike McConnell's recent revelations. While he won't tell reporters what the iceberg exactly is -- he'd risk jail time for that -- Tice did tell me last year that NSA officials weren't particularly concerned about the risk of abuse after the administration told it in 2001 not to bother with FISA warrants. "When I brought up problems, [NSA employees] said, 'Who's gonna stop us? Keep your mouth shut.'"

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Congressional negotiators are busy working out a compromise with the Bush administration over reforms to the Foreign Intelligence Surveillance Act (FISA). As a result, the specifics of any prospective legislation are currently unknown. But leading civil liberties and national security experts certainly know what they want the bill to contain -- and some, at least, are inclining favorably to a fix that Jay Rockefeller (D-WV), the chairman of the Senate intelligence committee, is proposing. Here's a guide to what to look for.

Carve-Outs vs. Safeguards. What the Bush administration wants -- and probably has done over the past six years -- is to remove FISA protections from a broad swath of people in the U.S. in order to look for terrorism connections. That has had, and will have, broad implications for what the U.S. intelligence community can collect in terms of domestic communications. "Everything that they've proposed to redefine the term 'electronic surveillance' under FISA, the effect is to put millions of communications outside the protection of FISA. It's a carve-out," says Kate Martin, director of the Center for National Security Studies. The person the administration wants to supervise that carve-out for U.S. persons able to be targeted is... the attorney-general.

Rockefeller's proposal, as it stands so far, doesn't change any existing term under FISA. Instead, pursuant to FISA as it stands, the National Security Agency can collect intelligence unimpeded on foreign-to-foreign communications. The administration would be required to go to the FISA Court for a blanket authorization targeting foreign suspected terrorists, in order to make a case that its methods are likely to net foreign communications primarily. All of what follows is a temporary fix -- set to expire after six months so the administration and Congress can work out a permanent solution -- but after 60 days of surveillance, the administration would have to inform Congress and the FISA Court exactly who has had their communications intercepted. And if the administration believes there's a "significant" pattern of communication between someone in the U.S. and a foreign-based surveillance target, it has to acquire a specific warrant from the FISA Court or end the surveillance.

"That preserves the basic framework of FISA," says Martin, "that to listen in to people in the U.S., you need a probable-cause warrant." No carve-out there, but a lot can change in deadline negotiation.

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So here's Sen. Arlen Specter's (R-PA) verdict on Alberto Gonzales' testimony, delivered during this morning's Senate Judiciary Committee hearing with Karl Rove's aide Scott Jennings.

Gonzales, he says, sought to mislead the committee, but should not be investigated for perjury, because his testimony, while misleading, doesn't rise to that standard.

Reading from a Supreme Court opinion on the statute of perjury, which said that a witness cannot be convicted of perjury simply because he is a "wily witness" who "shrewdly" evades the questioner by speaking "the literal truth," Specter said that that's what we have here. Gonzales is certainly "wily" and sought to mislead -- but he spoke, in Specter's judgment, "the literal truth." (Here's how that might be.)

But "just because it's not perjury," Specter said, "doesn't mean it's the way that the highest ranking legal officer in the United States ought to respond to a Senate inquiry." Specter went on to say that he thought that the conclusion of the committee's investigation of the U.S. attorney firings would be to "end the tenure of Attorney General Alberto Gonzales." When that conclusion will come, however, no one knows.

Even as Congress seeks to determine whether Alberto Gonzales lied under oath about the administration's warrantless wiretapping program, the Democrats have been negotiating with the administration to update the surveillance under the Foreign Intelligence Surveillance Act (FISA).

As The Los Angeles Times reports this morning, the alleged need for such a fix was precipitated by a FISA court judge's ruling, which restricted the ability of the National Security Agency to collect information on multiple surveillance targets under a single warrant. Additionally, the FISA Court apparently balked at allowing the NSA to collect intelligence on persons whose location inside or outside the U.S. is unknown. Indeed, there's a lot that isn't clear about the ruling -- the FISA Court meets in secret -- but the Bush administration has apparently persuaded congressional leaders that it creates a cumbersome standard for surveillance, given the extent of the threat from terrorism.

Back in January, remember, the administration brought its warrantless wiretapping program -- known as the Terrorist Surveillance Program, which monitors communications between persons in the U.S. and "known" terrorists abroad -- under the auspices of FISA, making it no longer warrantless.

The administration's first proposal, apparently, was to take the power to authorize NSA surveillance of foreign targets away from the FISA court and give it to the attorney general . The Democrats, unsurprisingly, said no -- noting that it's generally a bad idea, but especially a bad idea with this attorney general. The administration came back late yesterday with a proposal that the director of national intelligence would have to sign off too. Again, the Democrats said no.

And here's the Dem proposal, as described by The Washington Post this morning:

Congressional Democrats outlined a temporary plan yesterday that would expand the government's authority to conduct electronic surveillance of overseas communications in search of terrorists.

The proposal, according to House and Senate Democrats, would permit a secret court to issue broad orders approving eavesdropping of communications involving suspects overseas and other people, who may be in the United States. To issue an order, the court would not need to identify a particular target overseas, but it would have to determine that those being targeted are "likely," in fact, overseas.

If a foreign target's communications to a person inside the United States reaches a "significant" number, then an court order based on probable cause would be required. It is unclear how "significant" would be defined.

This would seem to lower the bar in terms of the evidence needed to initiate surveillance. The FISA court has a probable cause standard to initiate surveillance of a member of Al Qaeda or some affiliated group. Apparently the Democrats' plan would initially lower that bar -- allowing the targeting of "suspects" -- but then require probable cause once the number of wiretaps became "significant," whatever that means.

Hopefully clarity will enter into whatever ultimate compromise bill emerges. Negotiators are racing to finish and vote on a proposal before the congressional August recess begins Monday. Unless the bill defines critical terms like "significant" and specifies what standard the government will have to meet to begin surveillance on a given target, the compromise will either snarl in congress, depriving the NSA of a tool it says it urgently needs, or protections on Americans' civil liberties will erode even further. Pick your poison.

Well, that long awaited clarification from Alberto Gonzales about his testimony last week has arrived. And as you'd expect, it follows the same line that Gonzales and the administration have been touting, most recently in the letter yesterday from Michael McConnell. We'll have more on Gonzales' parsing of the parsing tomorrow.

Here's what Sen. Patrick Leahy (D-VT) had to say after taking a gander:

“The Attorney General’s legalistic explanation of his misleading testimony under oath before the Senate Judiciary Committee last week is not what one should expect from the top law enforcement officer of the United States. It is time for full candor to enforce the law and promote justice, rather than word parsing.

“The Attorney General has until the end of this week to correct and supplement his testimony. I hope he will take that opportunity to clarify the many issues on which he appears not to have been forthcoming and to tell the Senate Judiciary Committee and the American people the whole truth.”

As we've reported before, Alberto Gonzales' careful parsing of the NSA's surveillance program reflected an administration-wide strategy to obscure just what the administration was up to before senior Justice Department officials refused to continue the activities.

So it shouldn't be a surprise that the director of national intelligence is in on the fun. As we noted yesterday, Michael McConnell sent a letter last afternoon to Sen. Arlen Specter (R-PA) that purported to clarify the issues behind Gonzales' testimony (see below). Gonzales testified, remember, that there had not been disagreement concerning the program that President Bush publicly disclosed in December, 2005. But in testimony before the House Judiciary Committee last week, FBI Director Robert Mueller confirmed that the disagreement had been over the NSA surveillance program, a.k.a. the Terrorist Surveillance Program.

McConnell helps muddy the water in his letter (Sen. Dick Durbin (D-IL) uncharitably calls it "gobbledygook" full of "weasel words"). There was no single surveillance program, McConnell writes, but "various intelligence activities" that had been authorized in a presidential order. And those activities weren't characterized as being in a program until the President was forced to publicly disclose a "particular activity," i.e. "the targeting for interception without a court order of international communications of al Qaeda and affiliated terrorist organizations coming into or going out of the United States." The phrase "Terrorist Surveillance Program," McConnell says, refers only to that specific activity. (Entertainingly enough, he doesn't independently characterize the TSP as a program - just a "particular activity".) Notably, McConnell's letter is the first time that the administration has publicly admitted that "Bush's order included undisclosed activities beyond the warrantless surveillance of e-mails and phone calls that Bush confirmed in December 2005."

Now, none of this weasel wording is new. But it is entertaining to see McConnell bend over backwards to avoid characterizing the bundle of activities authorized by the President in a single order as a program. To admit as much, of course, would be to admit that there was a single NSA program. And that's a slippery slope.

Of course, Bob Mueller and former Deputy Attorney General James Comey don't seem to be in on the fun. To them, there is and was a single program, albeit a program that has undergone major changes.

But wait! There's more! Sen. Specter has said that he still is awaiting a letter from Gonzales which will "interpret" McConnell's letter. It will be, in essence, a parsing of McConnell's parsing. Specter says that he'll only decide whether Gonzales perjured himself after reviewing Gonzales meta-parse. So stay tuned.

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