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.

Attorney General Michael Mukasey has an open mind. Way open. From The Legal Times' blog:

"We need to stay engaged here because the stakes are tremendous," Mukasey said. "We're willing and happy to work with Congress on a workable bill. The Senate passed a workable, bipartisan bill that contains some compromises. The House passed a bill that was neither bipartisan nor workable."

While Mukasey offered no hint that a compromise is in the works, he said the House proposal does not offer guarantees to the communications industry.

"The people we work with need to know that they can be secure in working with us," he said. "That would introduce the same level of uncertainty that would be introduced by having litigation go on in public...If you tell somebody that you've received assurances, but the propriety of your conduct is now up for grabs, that's not exactly reassuring."

Here's another nugget from Eric Lichtblau's new book.

It's well known that The New York Times held the story about the warrantless wiretapping program for more than a year. A concerted lobbying campaign by the administration at first convinced editors at the Times not to run the story in late 2004. But Lichtblau adds a new detail about how one of the few Democrats who had been briefed on the program seemed to take the administration's side of things.

The administration's main contention (beyond lying about there being no dissent about the legality of the program) was that reporting the existence of the program would compromise it and tip off the terrorists. In his book, Lichtblau tells how a few months after the story was held, he happened to be covering a House hearing where he heard Rep. Jane Harman (D-CA) argue passionately for stronger civil liberties safeguards in the reauthorization of the Patriot Act.

Lichtblau saw this as an opportunity to question Harman about the warrantless wiretapping program, since Harman, as a member of the "gang of eight," was one of the four Democrats who'd been briefed on it. He writes:

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In March of 2004, virtually every member of the Justice Department's leadership was prepared to resign over the administration's warrantless wiretapping program. Thanks to former Deputy Attorney General James Comey's testimony, that much is well known. But even as Congress has debated giving the telecoms immunity from civil suits for participation in that program, it's still not understood precisely what was going on that caused such a revolt.

In his new book on the Justice Department under George Bush, New York Times reporter Eric Lichtblau, who, along with James Risen, broke the warrantless wiretapping story, sheds more light on this episode (while leaving plenty unexplained). But putting Lichtblau's telling together with recently reported details about the National Security Agency's data driftnet, it's possible to come to a fuller understanding of what was going on.

Shortly after 9/11, the administration began a much more aggressive surveillance program, a program that had two main components: an aggressive data mining program led by the National Security Agency and wiretapping done without a warrant that stemmed from leads generated by the data mining.

While that program was ongoing, the FISA court was still approving warrants submitted by the Justice Department like normal. But sometimes the two processes crossed. Sometimes the Justice Department would want a wiretap for someone who had already been wiretapped without a warrant. Lichtblau reports that "some 10 to 20 percent of all court warrants fell into this area of 'double coverage.'" Department lawyers had a clear reason for wanting to go through the court if possible: they could not build a legal case against a suspect if the surveillance was illegal.

In that case, the Department, with the consent of the chief judge of the FISA court, set up a system where only the chief judge would handle such applications -- since none of the other judges were privy to the program. It was a dicey process. James Baker, the Justice Department official in charge of intelligence issues, set up a process where any Department lawyers working under him could "opt out," if he or she didn't feel comfortable forwarding such a wiretap application to the court, Lichtblau reports. "Several lawyers" took him up on that offer.

But about that data mining. The NSA's driftnet spat out leads that FBI agents found largely useless. Lichtblau explains:

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From The New York Times:

A sheaf of documents that a federal court forced the Treasury Department to release indicate there have been repeated complaints from American consumers who have been falsely linked to terrorism or drug trafficking during routine credit checks, the organization that sought the documents in a lawsuit said Tuesday.

The more than 100 pages of documents released Monday to the organization, the Lawyers’ Committee for Civil Rights in San Francisco, include a variety of complaints about the list maintained by the Office of Foreign Asset Control in the Treasury Department, said Philip Hwang, a lawyer for the group....

The documents include e-mail messages from a Navy veteran who had been unable to use the Internet service PayPal, and an 18-year-old who wrote to say that he was not a Libyan minister who was apparently on the list.

A client of a Maryland Toyota dealer reported being checked by a salesperson for tattoos because of a Treasury list match.

A Treasury Department official was baffled by the last claim, saying information on the list did not include physical characteristics....

Another official said the department did not have numbers on how many people might have been falsely identified, since institutions can check their clients’ identity against the list and ignore it if something like the date of birth obviously does not match the person in front of them.

Remember that, according to The Wall Street Journal, the Treasury Department feeds transaction information to the National Security Agency for their vast data driftnet. So it's possible that a mistake on that watchlist could have led to much more than an inconvenience during a credit check.

If you're curious, the Treasury Department posts its watch list here (pdf).

Last time we checked in with Steven Bradbury, the guy who tells the administration how far they can legally go (the head of the Justice Department's Office of Legal Counsel), he was explaining to Congress that the waterboarding technique used by the CIA on detainees was nothing at all like the "water cure" technique used by the Spanish Inquisition (it's actually similar to the Khmer Rouge). He also explained in detail his reasoning for why waterboarding was not in violation of the criminal statute barring torture.

This is the guy currently with the power to issue "advance pardons" for administration lawbreaking.

He is clearly not a man who shrinks from airing his views. And in a rare interview (sub. req.) with Legal Times, Bradbury proclaims that he's enjoying the healthy, vigorous debate occasioned by the administration's interrogation and surveillance policies.

Of course, Democrats might have a different way of seeing things. Bradbury has effectively run the office since 2004, even though his nomination has been blocked by Democrats. He has been nominated five times. Dems have even charged that the administration is breaking the law by keeping Bradbury atop the Office of Legal Counsel. The Vacancies Reform Act bars non-Senate-confirmed appointees for holding their jobs for longer than 210 days. But the Justice Department has responded that Bradbury is not breaking the law because he is not the official acting head of the office; he's officially the deputy who's carrying out the duties of the chief because the position is vacant. So voila! no problem.

In his interview, Bradbury proclaims that he "very much respects" the role of the Senate in confirming nominees:

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The administration threw everything it had at the Democrats. Statement after statement after statement on the White House lawn. TV ads, web ads. Letters from the attorney general and director of national intelligence raising the alarm about the danger the country is in. Even a TV appearance by the DNI himself to highlight the "increased danger."

And what did it get them? At the end of last week, nearly a month after the Protect America Act lapsed, the House passed a bill that does not contain retroactive immunity -- the bill even contains a provision that dispenses with the administration's main legal argument for blocking the lawsuits, the state secrets privilege.

So what now? No one on the Democratic side of the aisle seems to have bought the administration's line that the lapse of the Protect America Act is cause for concern. Wiretaps authorized by that law can go until August of this year. Wiretaps of new targets would have to be authorized under the old FISA law. But the authorities granted by the PAA are so broad (it authorizes wiretaps of entire terrorist groups) that as of two weeks after the law's lapse, no warrants of wiretaps for new targets had yet been required. That makes the administration's claim that such warrant requests will create a mountain of paperwork look pretty silly.

There seems to be a definite lack of urgency (despite the Republicans' terrifying web ad). And as the Politico reports, that lack of urgency on top of the considerable differences between the House and Senate surveillance bills -- most evidently on the issue of retroactive immunity -- means that the prospects for passing any bill through both houses appear dubious:

“I don’t know if there is a dire need to get it done tomorrow,” said one Senate Democratic aide. “Obviously we would like to see a resolution on this, but that is really hard to do when the House is voting on legislation that won’t pass the Senate and Republicans won’t even come to the table.”

Both houses are in recess for the next two weeks. And when the Senate gets back, Senate Majority Leader Harry Reid (D-NV) has planned a push on economic issues. How surveillance will fit into that agenda when the Senate likely doesn't have the 60 votes to even begin debate on the House's bill is not at all clear. And even if the Senate did pass something eventually, the distance between the House leadership and key Senate Democrats like Senate intelligence committee Chairman Jay Rockefeller (D-WV) on the issue of immunity makes the fate of such a bill unsure.

One thing that is sure is that conservatives think they have a winner of an issue here. So either from billionaire-funded attack groups or the Republican Party committees, the ads targeting House Democrats on the issue will keep coming. So far, however, such ads have had zero impact.

If no bill does pass in the next couple months, the next flashpoint seems likely to be July, shortly before the wiretaps authorized under the Protect America Act will actually begin to lapse.* You can be sure that the administration will mount another offensive. We'll see if that one is any more successful.

*Update: This post originally said that the authorizations under the Protect America Act will lapse in August. The authorizations are good for one year, meaning that authorizations from August of 2007 will lapse that month, but later authorizations will not lapse until a full year after their initiation. Thanks to TPM Reader CR for the fix.

Just out from Senate Majority Leader Harry Reid (D-NV):

“I am very encouraged by House passage of a new FISA bill. The new House version adopts the basic structure of the Senate-passed bill, but contains added privacy protections. Now is the time for Republicans to come to the negotiating table so we can resolve the last few issues. The President should stop giving high-handed speeches in the Rose Garden and start working with Congress to finalize this important national security bill.”

The House Dem leadership's surveillance bill just cleared the House by a vote of 213-197 with 1 vote of present. 12 Dems crossed the aisle to vote against it.

The bill has stricter privacy safeguards than the Senate's version -- and of course does not contain a provision granting retroactive immunity for the telecoms' participation in the administration's warrantless wiretapping program.

As for what's next, it's over to the Senate where it's sure to undergo some modifications. In a statement earlier this week, Senate intelligence committee Chair Jay Rockefeller (D-WV) said that "considerable work remains" on reconciling the House's latest version and the Senate version. Rockefeller said he's willing to adopt a number of the House's provisions, including a much shorter sunset (2 years) on the law, but notably omitted the topic of immunity. Rockefeller supports blanket immunity for the telecoms.

The Senate is certainly a different place. Today, 12 House Dems voted against a bill that does not contain retroactive immunity (and some of those were from liberals like Rep. Dennis Kucinich (D-OH)). Last month in the Senate, 18 Dems voted against an attempt to strip retroactive immunity from the Senate bill.

Update: Here's the roll call.

The House is expected to finally vote on the leadership's surveillance bill this afternoon and debate is ongoing now. We'll keep you updated on how it goes.

The reason the vote was delayed, of course, was the extremely rare secret session requested by Republicans (only the fifth since 1825).

It's unclear exactly what went on. For one thing, it appears from comments Republicans made going into the session that they didn't actually discuss the details of the administration's warrantless wiretapping program. Rep. Pete Hoekstra (R-MI) tells the AP that he had read aloud the titles — but not details — of intelligence reports "that shows the nature of the global threat and how dynamic the situation is, and how fluid."

Democrats are as dismissive afterwards as they were skeptical going in. Rep. Lloyd Doggett (D-TX) dismissed it as "mysterious hocus-pocus" on the House floor this morning. House Majority Leader Steny Hoyer (D-MD) said that he didn't "hear any new information" that dissuades him from supporting the Dems' bill. (Meanwhile, House Minority Whip Roy Blunt (R-MO) said in a statement that he was satisfied with the session and “As members go home, I hope the information and debate we heard will help inform their decisions when we consider the legislation that will be before the House tomorrow.")

Dana Milbank writing in The Washington Post can hardly restrain his mockery of the whole thing -- and has a hard time deciding whether the debate to go into closed session was sillier than the closed session itself.

But if it was a PR stunt, I have to say that the secret session seems to have fallen far short of the GOP's staged walkout in garnering publicity.

We'll keep you updated. And we'll see how that historic closed session goes.

From CQ:

The House was to meet Thursday in its first closed session in 25 years to debate a Democratic leadership-backed rewrite of electronic surveillance law....

Earlier, Minority Leader John A. Boehner said Republicans would ask for the closed session to have an “open and honest debate about some of the important details about this program, that don’t need to be heard in public.”

Speaker Nancy Pelosi , D-Calif., has agreed to the request.

“We’re having debate on the bill. And I don’t have any problem with having part of it in closed session, and part of it in open session,” Pelosi said.

House Judicary Committee Chair John Conyers (D-MI) is skeptical:

"The more my colleagues know, the less they believe this Administration's rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration's actions in the area of warrantless surveillance, the more likely they are to reject the Administration's scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration's documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

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House Speaker Nancy Pelosi (D-CA) responding to the president's remarks this morning that the House bill will "undermine America's security":

QUESTION: Don't you think the president is lying?

PELOSI: Am I saying the president is lying?

QUESTION: Yes.

PELOSI: That's the same question I got in 2001 when they asked me -- when I said the intelligence on Iraq does not support the threat of -- an imminent threat to our country that the administration is contending.

That's what they said to me then. They said, "Are you saying the president is lying?" I said then and I say now, "I am stating a fact."

The president is wrong and he knows it.

Later today, the House will vote on its surveillance bill, a bill that rejects retroactive immunity for the telecoms who cooperated with the administration's warrantless wiretapping program and provides a number of tougher civil liberty checks on the surveillance going forward.

The general expectation is that the bill will pass, but the vote might be quite close. As CQ reported last night, none of the 21 Blue Dog Dems seem prepared to say where they'll vote -- a number saying yesterday that they hadn't even read the bill yet.

It was a defiant move for the House Dem leadership to bring such a bill to a vote, and the administration clearly is not happy. This morning, President Bush just made umpteenth public statement on the surveillance bill, full of the usual canards about greedy trial lawyers exploiting the telecoms' patriotic participation in the program, "dangerous intelligence gaps," and the specter of the telecoms refusing to cooperate going forward because the lawsuits did not get wiped out. His message was clear: "voting for this bill would make our country less safe" and (just in case they weren't clear on this) Americans "want their children to be safe from terror." The House should not leave for its planned two-week Easter recess, he said, without passing the Senate's bill, which the White House supports.

Here's video of Bush this morning:

If the House were to pass the bill today, it would make its way over to the Senate, where it would be sure to undergo some significant modifications (including, most likely, reinserting retroactive immunity). Senate intelligence committee Chair Jay Rockefeller (D-WV) has said as much. That's a process that wouldn't get underway until April. But the White House is impatient and evidently hopes that moderate Dems will join with Republicans in voting down the leadership's bill, after which the administration would continue to exert pressure to pass the Senate bill. You can be sure that outside groups would continue to pound Dems with ads screaming that the country has been left defenseless.

Inconveniently enough for the administration, there's still plenty more to be learned about just how the administration's warrantless wiretapping program worked. For instance, just this morning, The New York Times reports that the FBI used so-called "blanket" letters -- letters that were a "one-step operation used to justify the collection of hundreds of phone and e-mail records at a time" -- at least 11 times in 2006. That and other abuses of national security letters by the FBI are illustrated in this report (pdf) by the Department of Justice's inspector general.

And as we learned only this Monday (thanks to The Wall Street Journal), the FBI's data feeds the NSA's massive driftnet, which in turn can result in wiretaps through the Terrorist Surveillance Program. But the administration, of course, wants the issue closed. Dems should "stop playing politics with the past," as Bush put it this morning -- it's time to succumb to the politics of the present.

After holding out for months, the administration finally turned over documents from the warrantless wiretapping program to the House Judiciary Committee. It was a transparent bid to convince Democrats to get on board with retroactive immunity for the telecoms, a plan that largely worked with the Senate intelligence committee.

But, obviously, it didn't work. The Dems, led by Chair John Conyers (D-MI), reviewed the documentation. And in a statement today, Conyers and 19 members of the committee explain in detail why they concluded "that the Administration has not established a valid and credible case justifying the extraordinary action of Congress enacting blanket retroactive immunity as set forth in the Senate bill."

They cite a number of factors as to why it would be inadvisable to remove the issue from the courts and give the telecoms a free pass on lawsuits challenging the program. But the overarching reason seems to be that it's far from clear that the warrantless wiretapping program was legal, as the administration insists. In fact, they write, "our review of classified information has reinforced serious concerns about the potential illegality of the Administration’s actions in authorizing and carrying out its warrantless surveillance program."

The House is expected to vote on the new bill (which Conyers helped write) tomorrow.

Put Senate Judiciary Committee Chairman Patrick Leahy (D-VT) down as in support of the House bill:

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Well, we know what the administration thinks about the Dems' surveillance bill. The Electronic Frontier Foundation, as you'd expect, has a different take.

Kevin Bankston, a senior staff attorney with EFF, told me that the group is "very glad that the House leadership has taken a courageous stand against the administration's demands for telecom amnesty." Bankston is one of the lead attorneys in EFF's class action suit against AT&T for illegal spying.

"We've been advocating that the only reasonable compromise is a solution to the state secrets problem, where the government prevented the telecoms from putting forward their defense" he said. "It will guarantee that the courts actually rule on the heart of the issue: did the telecoms break the law?"

"So we're very pleased that the House has listened to us."

A statement from Senate intelligence committee Chair Jay Rockefeller (D-WV) on the House's bill:

“I have worked hard in recent weeks to reconcile the differences between the Senate and House FISA bills and produce legislation that strengthens intelligence collection against foreign terrorist targets and addresses liability protection for telecommunications companies. Regrettably, the Administration and Republicans chose to boycott these discussions and refused to play a constructive role in producing such a bill that could have strong bipartisan support in both the Senate and the House.

“Today’s House proposal reflects progress in bringing the two bills together, and it is a step in the right direction. But, considerable work remains.

“I continue to believe that the Senate FISA bill can be made even better through a limited number of changes, such as a shorter sunset, strengthened exclusivity, and improved accountability – modifications that in no way inhibit the collection authorities needed by the Intelligence Community.

"As soon as the House sends us this new bill, we will once again roll up our sleeves and get back to work on a final compromise that the House, Senate and White House can support."

Rockefeller's support, of course, would be essential for any compromise bill to carry the Senate. But he's supported retroactive immunity for the telecoms and it appears from his statement that he's got a number of problems with the House bill.

You knew that the administration wouldn't like the House Democrats' new surveillance bill. And indeed they don't. This afternoon, Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell released a statement criticizing the bill, saying that "we are concerned that the proposal would not provide the Intelligence Community the critical tools needed to protect the country."

They focused on the bill's requirement for warrants to precede surveillance and the lack of retroactive immunity for telecoms as two particular areas of "concern."

They also don't like the two-year sunset period set out for the bill, saying that the "uncertainty created by a short sunset does not provide the stability needed for intelligence operations." And that congressional commission to investigate the program? They don't like that either, saying that it would only "redo the extensive oversight done by the intelligence committees in Congress over the past two years."

They conclude:

“We remain prepared to continue to work with Congress towards the passage of a long-term FISA modernization bill that would strengthen the Nation's intelligence capabilities while protecting the constitutional rights of Americans, so that the President can sign such a bill into law.”

And what do the Dems have to say to all this? Here's a statement just out from House Judiciary Committee Chair John Conyers (D-MI) and House intelligence committee Chair Silvestre Reyes (D-TX):

“The Administration, which has refused to even attend negotiation sessions between the House and the Senate, has now apparently launched another round of scare tactics and falsehoods. The American people expect government officials to wrestle with these difficult issues and reach common sense solutions that protect Americans from terrorism and preserve our civil liberties. Unfortunately, the President’s advisors seem more inclined to issue ‘my way or the highway’ press releases concerning a bill the Administration hasn’t even read. The Congress will continue to give this issue the careful consideration it deserves and we hope the Administration will change course and join us in this effort.”

As The New York Times reports this morning, the House leadership's draft proposal for a surveillance bill contains a provision that would reject giving retroactive immunity to the telecoms. Instead, it would give the courts authorization to hear the classified material at issue in the case -- in essence disposing with the administration's claim of the state secrets privilege. I had a senior House aide walk me through the proposal, which is sure to infuriate the administration.

I outlined the other aspects of the Dems' draft bill on Friday. The Times adds that the proposal would create "a bipartisan Congressional commission with subpoena power to issue a report on the surveillance programs." That would be in addition to a provision requiring an audit of the warrantless wiretapping program by the Department of Justice's inspector general, the aide told me.

So here's how that telecom suit provision would work. The lawsuits against the telecoms for participation in the warrantless wiretapping program are currently tied up in court because the government has asserted the state secrets privilege. It's a state of affairs that the telecoms themselves are not happy with, as Wayne Watts, AT&T's general counsel, wrote in a letter to lawmakers last October:

When the subject matter of the litigation involves allegations of highly classified intelligence activities, private parties are disabled from making the factual showing necessary to demonstrate that the cases lack legal merit. If the courts do not swiftly dismiss such cases based on the state secrets privilege, then carriers who are alleged to have cooperated with intelligence activities are faced with years of litigation, at great financial and reputation cost, and are forced to remain mute in the face of extreme allegations, no matter how false.

The House bill seeks to solve this problem by giving the judges hearing these cases authorization to view the classified documents at issue in the case. Here, those would be the orders from the president claiming that the warrantless wiretaps were legal.

The aide said that the provision followed the same guidelines as the FISA law authorized in criminal cases where a defendant was seeking to contest classified information. The judges are required, to the extent they can, provide the plaintiffs information. He explained: "you don't want the plaintiffs to receive classified information they're not entitled to, but you do want an adversarial process here."

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A little more from that Wall Street Journal piece:

The White House wants to give companies that assist government surveillance immunity from lawsuits alleging an invasion of privacy, but Democrats in Congress have been blocking it. The Terrorist Surveillance Program has spurred 38 lawsuits against companies. Current and former intelligence officials say telecom companies' concern comes chiefly because they are giving the government unlimited access to a copy of the flow of communications, through a network of switches at U.S. telecommunications hubs that duplicate all the data running through it. It isn't clear whether the government or telecom companies control the switches, but companies process some of the data for the NSA, the current and former officials say.

It is the closest thing I've seen to a complete explanation of the surveillance program the Bush Administration has assembled.

Siobhan Gorman of The Wall Street Journal reports this morning that the National Security Agency has assembled what some intelligence officials admit is a driftnet for domestic and foreign communications.

Here's the way the whole thing works, according to Gorman: into the NSA's massive database goes data collected by the Justice Department, Department of Homeland Security, and the Department of Treasury. This information includes data about email (recipient and sender address, subject, time sent), internet searches (sites visited and searches conducted), phone calls (incoming and outgoing numbers, length of call, location), financial information (wire transfers, credit-card use, information about bank accounts), and information from the DHS about airline passengers.

Then the NSA's software analyzes this data for indications of terrorist activity. When it hits upon a suspicious pattern, the NSA "feeds its findings into the effort the administration calls the Terrorist Surveillance Program and shares some of that information with other U.S. security agencies.”

Here's a more in-depth explanation:

Two former officials familiar with the data-sifting efforts said they work by starting with some sort of lead, like a phone number or Internet address. In partnership with the FBI, the systems then can track all domestic and foreign transactions of people associated with that item -- and then the people who associated with them, and so on, casting a gradually wider net. An intelligence official described more of a rapid-response effect: If a person suspected of terrorist connections is believed to be in a U.S. city -- for instance, Detroit, a community with a high concentration of Muslim Americans -- the government's spy systems may be directed to collect and analyze all electronic communications into and out of the city.

The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.

The data sifting is supposedly legal because it's limited to so-called "transactional" details. In other words, the NSA cannot read the content of an email, but can use other data about the email (i.e. subject line, sender/recipient, data and time). If a suspicious pattern emerges, then the NSA, via the Terrorist Surveillance Program, may seek to wiretap.

Gorman describes the NSA's effort (elements of which have been reported before) as basically a resurrection of the Pentagon's Total Information Awareness program, which of course was de-funded by Congress once the details became public. This time around, of course, the details have remained secret. Although the budget for the NSA's driftnet is classified, Gorman cites one official as estimating it at $1 billion. One wonders what the reaction will be this time around:

Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence Committee who led the charge to kill TIA, says "the administration is trying to bring as much of the philosophy of operation Total Information Awareness as it can into the programs they're using today." The issue has been overshadowed by the fight over telecoms' immunity, he said. "There's not been as much discussion in the Congress as there ought to be."

We'll have more on this in a bit.

Democratic House leaders have emerged from negotiations with their Senate counterparts on the new surveillance bill with a draft proposal, a senior House aide says. See update below.

The proposal, the contents of which the aide described to me, does not contain a measure granting retroactive immunity to the telecoms for their participation in the warrantless surveillance program. The aide also stressed that the bill "is in the exact same ballpark" in terms of civil liberties protections as the RESTORE Act, the bill which the House passed last year. The draft as described by the aide:

-- requires an audit by the Department of Justice's inspector general of the administration warrantless wiretapping program (not in the Senate bill)

-- has a two-year sunset, as opposed to the Senate's surveillance bill, which has a six-year sunset

-- has an "exclusivity" provision, which specifies that the President cannot circumvent the bill with claimed Constitutional powers (not in the Senate bill)

-- has guidelines to prevent the NSA from tapping foreigners' communications into the U.S. when the real intention is to target a U.S. person, which is called "reverse targeting" (not in the Senate bill)

-- requires pre-approval by the Foreign Intelligence Surveillance Court of the "basket warrants" (surveillance of entire terrorist groups, as opposed to just individuals) allowed by the House and Senate bills, except in emergency situations, where the government must seek approval within seven days after initiating surveillance. (also in contrast to the Senate bill)

Of course, just because the House bill does not have retroactive immunity does not mean that the final bill to arise from the process will not. As the Politico reported last night, House Speaker Nancy Pelosi (D-CA) now favors a strategy of "ping-ponging" alternatives back and forth between the two chambers. What that means is that the House could vote out a bill that does not contain retroactive immunity, but that the Senate could vote to add it back in, sending that back to the House, where such a modified bill might pass with the help of moderate Democrats. Of course, such a strategy could also lead to stalemate, as the Politico points out.

At the very least, it's clear that the process is far from over. We'll have more on this in a bit.

Update: Stop the presses! Wendy Morigi, Sen. Jay Rockefeller's (D-WV) spokeswoman, tells me that Rockefeller would not agree to a bill that fits the above description, but would give no specifics. All she could say was "we continue to work with the House to try and find agreement and resolve the differences between the House and Senate bill."

We'll have more as learn more about what is going on here. Rockefeller, the Senate intelligence committee chairman, is obviously the lynch pin of any possible compromise. The only logical inference for now is that House Dems are circulating a draft bill without having hashed out every detail with him.

From Wired's Threat Level:

A U.S. government office in Quantico, Virginia, has direct, high-speed access to a major wireless carrier's systems, exposing customers' voice calls, data packets and physical movements to uncontrolled surveillance, according to a computer security consultant who says he worked for the carrier in late 2003.

That consultant is a man named Babak Pasdar, who outlined the accusation in an an affidavit (pdf) for the Government Accountability Project. Pasdar does not name the wireless carrier, but Wired reports that "his claims are nearly identical to unsourced allegations made in a federal lawsuit filed in 2006," which names Verizon Wireless.

In the affidavit, Pasdar says that he was hired by the carrier in 2003 to do a major security overhaul, a taxing job that was going relatively smoothly, having covered more than 300 sites, until he asked why the overhaul seemed to be skipping one location, which the carrier consultants called the "Quantico Circuit." Quantico, Virginia is home to the FBI Academy and the bureau's electronic surveillance operations.

When Pasdar asked the company's security consultants about the location, he only got smiles. And when he insisted that the location be covered by the same security procedures as the others, one of the consultants replied "I don't think that is what they want." When he asked "Who?" the consultants didn't respond. Then the company's security director appeared to demand that Pasdar "move on" and "forget about the circuit" or he'd be fired.

In a later conversation, Pasdar asked a company consultant if he didn't think "it is unusual for some third party to have completely open access to your systems like this?"

To which the consultant responded, "Dude, that's what they want." That's all Pasdar was able to learn.

Pasdar's account is reminiscent of that given by Mark Klein, the former AT&T technician who's affidavit about the NSA's room at AT&T's Folsom Street Facility has provided the basis for the Electronic Frontier Foundation's suit against AT&T, with the notable difference that Klein was able to do a lot more snooping.

Last week, a group called Defense of Democracies let rip with a national ad campaign aimed at pressuring House Democrats (and targeting 15 in particular) to buckle and support the Senate's surveillance bill, which contains retroactive immunity for the telecoms. The ads ended by encouraging viewers to contact their representative and urge them to convince the House leadership to bring the Senate bill to a vote -- because "the law that lets intelligence agencies intercept Al Qaeda communications" has expired, "crippling" surveillance.

The group, other than denying that the telecoms themselves were behind the $2 million campaign, refused to disclose where the money had come from. But in the current issue of the National Journal (not available online), Peter Stone reports that Sheldon Adelson, the billionaire casino mogul, "chipped in much of the $2 million," citing "sources."

That's not all that surprising, since Adelson (with a net worth of $26 billion, Forbes' 12th richest person in the world) is a big backer of conservative attack groups. For instance, he's the big money behind Freedom's Watch, which reportedly plans to spend $250 million defeating Democrats this election.

Defense of Democracies, a non-profit 501(c)(4) organization, was formed by the related Foundation for the Defense of Democracies, a supposedly "non-partisan" non-profit that lost all of its Democratic board members after news of the ad campaign broke. It'll be interesting to see whether the run of ads, which lasted one week and ran on the national cable networks, was a preview of more to come in the election. I guess that depends on how generous Adelson is feeling.

Despite recent signs that House Democrats will likely ultimately vote on a bill that contains retroactive immunity for the telecoms, negotiations on a final version of the surveillance bill remain ongoing. Dems, after saying that a vote might come as early as this week, now seem unclear when it might happen.

In a conference call with bloggers today, House Speaker Nancy Pelosi (D-CA) made it clear that her highest priority for a surveillance bill was that it contain a so-called "exclusivity" provision -- a measure that would explicitly state that the bill would be the "exclusive means" by which the government would conduct surveillance, or in other words, the president does not have the power to ignore the law if he/she so pleases.

"Exclusivity is the issue," she said.

The Bush administration, which circumvented FISA to conduct its warrantless wiretapping program, does not want its hands tied. And a majority of Republicans helped vote down an exclusivity amendment offered by Sen. Dianne Feinstein (D-CA) in the Senate, where by bipartisan agreement, the measure required 60 votes. There is such a provision in the House's surveillance bill, which passed last year.

Pelosi says that she "absolutely" opposes retroactive immunity for the telecoms, but that she "didn't want the fight to be so focused there that we neglect exclusivity." Pelosi added that the House leadership was "at the mercy of the 17 or 18 Democrats in the Senate who are voting with the Republicans on this" and said that "we are trying to work with the Dems in the Senate to come to an agreement" on exclusivity, immunity, and other issues.

So this will be an interesting variable to add to the mix as the bill negotiations continue. Would Republicans in the Senate support a bill that had exclusivity in it? And would the President veto a bill that had it?

The Politico gets the temperature of the current negotiations on the surveillance bill and stresses the "unknowns." So while the signs tend towards the final bill somehow containing retroactive immunity for the telecoms against those vicious lawsuits, it's still not a sure thing.

But there was this choice section, where Senate intelligence committee Chairman Jay Rockefeller (D-WV) expresses befuddlement that Republicans have boycotted talks on a compromise bill. The president and leading GOPers have said that it's the Senate bill or nothing so there's no use negotiating. From The Politico:

Rockefeller supports the immunity provision the administration wants, but he said he was perplexed by the fact that the White House has skipped the meetings the Democrats have tried to hold. “I don’t understand why the White House hasn’t been more active in pushing the solution they want,” he said.

“It’s very strange.”

Of course, the Republicans and the administration have been pushing with all their might (I guess Rockefeller missed this ad... and Bush's every public appearance for the past month). They just see no reason to go to the table, figuring that if they push enough, they'll get what they want.

What's best for the telecoms is best for the nation's security, the administration has argued. And what's best for the telecoms is for all those lawsuits against them for cooperating with the warrantless wiretapping program to go away. After all, "these people are responsible for shareholders."

But while administration officials like the director of national intelligence and attorney general have asserted that the telecoms face the "continued risk of billion-dollar class action suits," it's worth putting that claim in context.

I asked Kurt Opsahl, who represents the Electronic Freedom Foundation in its class action suit against AT&T, to walk me through.

EFF's suit features evidence provided by former AT&T technician Mark Klein, who disclosed two years ago how the company had allowed the NSA to use a small room in San Francisco to capture untold millions of phone and e-mail communications. EFF’s complaint charges that the program violated the First and Fourth Amendments and Foreign Intelligence Surveillance Act and other federal statutes.

Above all, Opsahl said, it's important to realize that for the plaintiffs in the suit to collect damages of billions, "they need to have spied on a lot of people. If they say that the interceptions and surveillance is limited to only people in communication with Al Qaeda, that suggests it's a very small number and therefore a very small amount in damages. For it to be billions, they need to have spied on millions of people."

There are 37 suits against the telecommunications companies alleged to have participated in the program, i.e. AT&T, BellSouth, Sprint and MCI/Verizon; suits that have all been transferred to federal court California's Northern District. Six of those suits are on behalf of state officials in Missouri, Maine, New Jersey, Connecticut and Vermont to investigate the program.

Should damages be awarded, however, they would be awarded based on how many people the government, via the telecoms, surveilled illegally, not the number of suits, Opsahl said. EFF's complaint excludes "foreign powers," "agents of foreign powers" and "anyone who knowingly engages in sabotage or international terrorism" from the class.

When I asked Opsahl what he thought likely damages against AT&T might be -- if the suit was successful on all of its claims, a very big "if" (see below) -- he said $13,000 per customer who was a victim of illegal surveillance.

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Bush has been beating the drum for weeks (danger! terrorists! attack!). And finally the Dems seem to be marching in time.

As we noted yesterday, there are clear signs that whatever surveillance bill emerges from the House-Senate negotiations, it will more than likely contain immunity for the telecoms for their participation in the administration's warrantless wiretapping program. But Bush is not a man to settle. He wants more. Here he is speaking yesterday before a gathering of the state's attorneys general:

Now the question is, should these lawsuits be allowed to proceed, or should any company that may have helped save American lives be thanked for performing a patriotic service; should those who stepped forward to say we're going to help defend America have to go to the courthouse to defend themselves, or should the Congress and the President say thank you for doing your patriotic duty? I believe we ought to say thank you.

Now, as The Washington Post reports this morning, the bill negotiations are ongoing. So it's not entirely clear what will emerge. House Majority Leader Steny Hoyer (D-MD), the Post reports, has been polling the Dem caucus on the immunity issue, with "the liberal camp" content with doing nothing (keeping the old FISA law) and "the moderate wing" pushing for retroactive immunity.

But it's not clear if Hoyer has yet gauged support for this new telecom thanking provision. Perhaps it would come as a completely separate bill (the Thanks for Protecting America Act?), or perhaps all the lawmakers could just go down onto the steps of the Capitol and blow kisses. You never know what novel arrangement could emerge from the bill negotiations.

Two weeks ago, the Protect America Act lapsed. And ever since then, Republicans and the administration have shown impressive stamina in continually hyping the "increased danger" -- and insisting on retroactive immunity for the telecoms' participation in the administration's warrantless wiretapping program.

For two weeks, the Democratic leadership did not budge. But now there are signs that the administration may finally be getting what it wants.

And why has President Bush been pushing so hard for immunity? The Washington Post walked through the issue this weekend. Though the Republican talking point has been that trial lawyers have been licking their chops over "billion dollar" lawsuits, there is a much more compelling reason for the administration to want the lawsuits quashed: it is the only legal avenue likely to be successful in forcing disclosures about the warrantless wiretapping program. In other words, while the administration has consistently sought to focus the issue as one about the telecoms; the administration itself arguably has much more to fear from the suits.

There were a couple different indications this weekend that the Dems were getting close to a compromise that would result in retroactive immunity.

Appearing on CNN this weekend, House intelligence committee Chair Silvestre Reyes (D-TX) sounded like a man inclined towards supporting "blanket immunity," as he called it, and just dotting his i's and crossing his t's. Reyes had earlier refused to declare his position on retroactive immunity, saying that he needed more time to study the issue. The administration finally turned over documents from the program last month. And Reyes said yesterday that "we are talking to the representatives from the communications companies because, if we're going to give them blanket immunity, we want to know and we want to understand what it is that we're giving immunity for." When Wolf Blitzer asked him whether he's "open" to such immunity, he answered "absolutely." He said that he and the other House and Senate Dems working on hammering out a compromise would probably be finished "probably within the next week."

Update: Here's the vid:

The Los Angeles Times gave a glimpse of what a final vote on that compromise bill might look like in the House. The House leadership might divide its final vote on a compromise bill into two parts, the second vote being solely on the issue of retroactive immunity:

"The objective would be to pass something that is less controversial," yet still allow Democrats to register their objections to the immunity provision, said one senior Democratic aide, speaking on condition of anonymity because House Speaker Nancy Pelosi (D-San Francisco) and other party leaders have yet to reach a decision on the matter.

The clear expectation is that more than enough Dems would cross over to vote for retroactive immunity to have it pass. How many Dems would "register their objection" -- whether it would be more in the House than in the Senate, where the vote on immunity was surprisingly lopsided -- well, only a vote would tell. In any case, the long, mighty struggle seems to be winding down to a whimper of an ending.