• summary of closing arguments by the prosecution
• summary of closing arguments by the defense

The Senate Judiciary Committee is scheduled to consider reforms to the Foreign Intelligence Surveilance Act (FISA) this Wednesday (Oct.31). This follows the Senate Intelligence Committee's passage of S.2248. The committee's report on the bill highlights what occurred during their closed door mark up hearing. The report states that telecommunications companies participating in the surveillance program received regular letters affirming that President Bush authorized the program. During the markup, Senator Bill Nelson (D-FL) offered an amendment to strip the provision granting immunity to telecommunications companies from the bill, but his amendment was rejected 3-12.

Scheduled to testify at the Judiciary hearing's is Assistant Attorney General Kenneth Wainstein of the Department of Justice's national security division. A second panel will hear from Edward Black, president and CEO of the Computer & Communications Industry Association; Patrick Philbin, partner at Kirkland & Ellis and former DOJ deputy assistant attorney general for national security; and Morton Halperin, director of U.S. advocacy at the Open Society Institute. Beforehand, the committee's leaders, Senator Patrick Leahy (D-VT) and Senator Arlen Specter (R-PA) will be able to review confidential documents that the White House Counsel's Office previously showed to members from the Senate Intelligence Committee.

For an excellent breakdown of the bills before Congress to amend FISA, read this from the Center for Democracy and Technology.

Act Now! Tell your Senators to reject efforts to grant retroactive immunity to telecom companies that assisted in the administration's illegal wiretapping.

On Wednesday (Oct. 24) the Senate Homeland Security and Government Affairs Committee held a hearing titled, "Watching the Watch List: Building an Effective Terrorist Screening System." The hearing focused on the rapidly growing size of the Terrorist Screening Center (TSC) watch list, the centralized watch list that brings together all of the government lists of potential terrorists into one master list. A Government Accountability Office (GAO) report was released to coincide with the hearing, finding that in May 2007 the list has grown to include 755,000 names and has increased to an estimated size of 860,000 today. How can a list of this size even be functional? As Committee Chair Senator Lieberman (D-CT) said in his opening statement, "Some of the concerns stem from the sheer size of the watch list. . . . But if many of these names are mistakenly there, the credibility of the terrorism watch list and its usefulness will be compromised."

In May the Treasury Inspector General for Tax Administration (TIGTA) issued a report criticizing the Internal Revenue Service (IRS) for not using the TSC watch list to check nonprofit tax filings for possible matches to suspected terrorists. This becomes even more problematic with recent news.

Check out these two blogs covering the troubling watch list and its massive size; from the ACLU and Wired.

With headlines mostly describing the confusion that befell the court room on Monday and a seeming defeat for the government, there are now many opportunities. For example, will more notice our concerns with the designation process of groups as terrorist organizations, and will more now pay attention to the problems with shutting down a charity before any criminal charges are brought and freezing all of its assets all with secret evidence? An opinion piece in the Washington Post by David Cole, a law professor at Georgetown University, identifies these concerns.

The president has asserted the power to designate any organization or individual he chooses, here or abroad, without formal charges, a trial or hearing of any kind; without a statement of reasons; and on the basis of secret evidence. While full-scale criminal protections are not necessary, surely groups should be afforded a meaningful opportunity to defend themselves before they are shut down.

Along the same lines, check out this blog entry from the Huffington Post, "Let's Reassess Material Support"

And this New York Times article marks Monday's events as "another in a series of missteps and setbacks" for the government's track record in terrorist convictions. Meanwhile, tomorrow (Oct.25) Tariq Ramadan, who was denied a work visa for a teaching position at the University of Notre Dame will face material support charges. After academic and literary groups sued the government, the reasoning for not giving him the visa changed.

After the suit was filed, the government changed its rationale for excluding Professor Ramadan, now saying that he had contributed about $1,300 to a charity in Switzerland from 1998 to 2002. That charity, later designated a terrorist organization by the Treasury Department, in turn made contributions to Hamas, which had already been designated one. Professor Ramadan's second-hand contribution amounted to material support for terrorism, the government said.

More news coverage on the Holy Land case includes: the LA Times and the Washington Post. And check out this recent Watcher story, "No Conviction, Mistrial for Holy Land Foundation".

The biggest terror finance trial in U.S. history was declared a mistrial. The federal case against the Holy Land Foundation, once one of the largest Muslim charities in the U.S., ended in a mistrial after jurors were unable to come to a unanimous decision on the 197 counts brought against the charity and five of its formers officers and supporters. There was a unanimous verdict only on one defendant, Mohammad El-Mezain, Holy Land's original chairman and endowments director who was acquitted on all but one count. All other counts the jury hung on, and subject to retrial, which the government will do.

Dallas Morning News reports; "When polled, some jurors told the judge that they did not agree with the verdicts on Mr. Abdulqader and Mr. Odeh. U.S. District Judge Joe Fish then ordered the jury to discuss whether further deliberations might allow them to reach a decision. But after deliberating for another 45 minutes Monday morning, 11 of 12 jurors agreed that further deliberations would not change their decisions. It was then that the judge declared a mistrial.

Read coverage from the New York Times here.

With a vote of 13-2, the Senate Intelligence Committee passed the bill to revise the Foreign Intelligence Surveillance Act (FISA). The measure does have retroactive legal immunity for telephone carriers and would not require the FISA court to issue a warrant for surveillance of a foreign suspect who might have communications with a U.S. resident, but the administration would have to submit its surveillance and minimization procedures to the court for approval. The bill would also sunset after six years.

CQ ($$) reports that the "FISA court would have to approve several aspects of warrantless surveillance of targets reasonably believed to be outside the United States, such as the targeting procedures used, according to Rockefeller and Bond." Senate floor debate of the bill might occur around mid-November.

Senator Ron Wyden (D-OR) offered an amendment that passed to require the government to obtain a warrant when targeting an American overseas for surveillance. Wyden and Senator Russ Feingold (D-WI) were the only Members who voted against the bill.

Reports say that some Members on the Senate Judiciary Committee, which has not yet scheduled a mark up, will give the bill much more resistance. A press release from Feingold stated; "I am deeply disappointed that it included retroactive immunity for anyone alleged to have cooperated with the Administration's illegal warrantless wiretapping program."

Read the story in the Washington Post, New York Times, and The Hill.

Yesterday House Democratic leaders stopped floor action on HR 3773, the RESTORE Act, postponing a vote after a threatened Republican "motion-to-recommit" that could have destroyed the bill's chances. The motion would have taken the bill off the floor and sent it back to committee for an amendment ensuring the measure would not prohibit any form of surveillance of Osama bin Laden, al Qaeda or any other designated terrorist organization. They plan to put off further action on the bill until next week.

This blog described the events perfectly; "House Republicans ran procedural circles around the majority party, who was forced to remove their FISA reform bill from the House calendar. The House hoped to move in time to send a message to the Senate."

Meanwhile, today the Senate Select Committee on Intelligence is holding a closed hearing to mark up its version of a bill to amend the Foreign Intelligence Surveillance Act (FISA). Reportedly, the Senate version has a provision granting legal immunity for telephone carriers. According to the Washington Post; "Senate Democrats successfully pressed for a requirement that the Foreign Intelligence Surveillance Court review the government's procedures for deciding who is to be the subject of warrantless surveillance. They also insisted that the legislation be renewed in six years." With support of the White House, the Senate bill also does not include "basket" warrants, which would allow the FISA court to issue a single order that could include a large number of targets. We will provide more information on what is included in the Senate's bill once it is made public and reported out of committee.

Update:Senator Chris Dodd (D-CT) has placed a hold on the Senate FISA bill.

For 90 minutes this morning (Oct.17) the House will debate the RESTORE Act, HR 3773, the surveillance bill meant to fix some of the problems with the Protect America Act (PAA), amending the Foreign Intelligence Surveillance Act (FISA). Yesterday the Rules committee decided to go ahead with floor consideration of the bill without allowing lawmakers the chance to try to alter it. The only changes allowed have already occurred, with combining the two slightly different versions approved by the House Judiciary and Intelligence Committees last week. Additionally, an amendment will be included in the rule for floor debate that would allow a court to issue temporary surveillance orders when an application is under appeal. It would also require any administration request for assistance from telecommunications companies to cite the section of law with which it is in compliance.

During the Rules Committee numerous amendments were blocked much like those offered during the mark up hearings last week. One would have offered retroactive legal immunity to companies that participated in the National Security Agency's surveillance program. Unfortunately an amendment that would have required individual warrants for communications where one party is a U.S. citizen was also voted down.

The Bush administration has threatened to veto the bill if it passes in its current form. In a statement issued Oct.16; "The bill does not result in permanent FISA modernization and it contains no retroactive liability provision. H.R. 3773 therefore falls far short of providing the Intelligence Community with the tools it needs to collect foreign intelligence effectively from individuals located outside the United States."

Civil libertarian groups have split. The ACLU has come out in opposition to the RESTORE Act, while other groups though realizing that the bill is not perfect, support the bill for the improvements from current law. The Center for Democracy and Technology and the Center for National Security Studies are urging passage of the bill. Importantly, the RESTORE Act increases some oversight of the program absent in the PAA.

Medea Benjamin, co-founder of the anti-war group Code Pink, and Ann Wright, a retired Army colonel, have been arrested in the U.S. while protesting the Iraq war which placed their names in an FBI-run database, the National Crime Information Center (NCIC). Canada relies on the database to screen visitors and when the two women visited the country in August, they were told they would have to apply for "criminal rehabilitation" and pay $200 if they wanted to visit again. Neither did, and when Benjamin and Wright walked into Canada at Niagara Falls, they were denied entry because of their anti-war-related arrests. Read the Associated Press article here. "Now, Benjamin and Wright are asking why the names of people arrested during peaceful protests would be included in an FBI-maintained database meant to track fugitives, potential terrorists, missing persons and violent felons." For more information, see the Code Pink website.

Code Pink now has a petition running calling "on the FBI to stop including minor non-violent offenses on a database meant for serious crimes. We call on the Canadian government to reverse its policy and extend a warm welcome to U.S. peacemakers and other social activists who use the time-honored tradition of engaging in civil disobedience as a way to change unjust policies."

Significant amendments were voted on yesterday during both the House Judiciary and Intelligence mark up hearings on HR 3773, the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (RESTORE Act) a bill to amend the Foreign Intelligence Surveillance Act (FISA). The passage of these measures ultimately improved the bill.

During the Intelligence Committee hearing, Representative Rush Holt (D-NJ) offered an amendment, which passed, with four provisions. The amendment would:

• reaffirm that FISA is the only basis for conducting domestic surveillance;
• require the administration to "fully inform" Congress on any surveillance programs put into place since the Sept. 11, 2001;
• increase the number of FISA court judges and personnel handling FISA warrants;
• and mandate the FISA court to examine and approve how guidelines are applied for surveillance targeting.

An amendment also passed that would require quarterly court reviews of the "minimization" procedures used to protect the privacy of U.S. citizens unintentionally covered in surveillance. Representative Jan Schakowsky (D-IL) introduced an amendment requiring the FISA court to approve guidelines for making sure that individual warrants are sought when "the significant purpose" of planned surveillance is to target people believed to be in the U.S. Click here to read Holt's statement on yesterday's hearing. And be sure to read this blog posting which with the accurate headline, correctly says, "Thank you, Jerry Nadler."

Similar amendments passed during the Judiciary hearing. These include an amendment offered by Representative Jerrold Nadler (D-NY) to direct federal judges to assess government compliance with the procedures and guidelines of the court orders. Representative Sheila Jackson-Lee (D-TX) introduced an amendment requiring the minimization of surveillance of U.S. citizens when a "significant purpose" of the government's acquisition of information is to obtain the communications of a person reasonably believed to be located in the U.S. Robert Scott (D-VA) offered an amendment that would require the attorney general and director of national intelligence to submit to the appropriate committees of Congress a copy of the application to acquire communications of non-American citizens outside of the U.S.

Also to note are the amendments introduced in both committees that were fortunately voted down, such as an amendment to make the Protect America Act permanent, an amendment to remove all provisions requiring authorization to conduct surveillance of non-U.S. citizens located outside the U.S., and an amendment to provide retroactive legal immunity to communications companies who might have cooperated with administration surveillance efforts.

Staffers are now working on reconciling these amendments, and this base bill is expected to be brought to the House floor for a vote next week.

Both the House Judiciary and the House Intelligence Committee passed HR 3773, the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (RESTORE Act). The bill is meant to reform the Protect America Act (PAA) which passed hastily in August to amend the Foreign Intelligence Surveillance Act (FISA). The bill is expected to be sent to the House floor for a vote next week.

The RESTORE Act would require more judicial and congressional oversight of foreign intelligence surveillance. The director of national intelligence and the attorney general would have to certify that the surveillance targets are not U.S. citizens, permanent residents or businesses incorporated in the U.S., and that a significant purpose of the surveillance is to obtain foreign intelligence information. CQ ($$) reports that the "application to the court also would have to describe the so-called minimization procedures the government employed to lessen the aggregation and retention of sensitive information about U.S. citizens. It would bar the dissemination of non-public information gleaned from Americans that was not necessary to foreign intelligence-gathering or law enforcement." For a comparison between the PAA and the HR 3773, click here.

Many civil liberties organizations are concerned that the RESTORE Act does not have a requirement for individual warrants to monitor the telephone calls or e-mails of U.S. citizens who come into contact with suspected foreign terrorists. Some groups would like this to be amended so individual court orders are required when surveillance targeted at people abroad intrudes on Americans who are communicating with people overseas.

Meanwhile, Representative Rush Holt (D-NJ) a member of the Intelligence Committee also introduced a measure to reform the PAA, HR 3782, the Foreign Intelligence Surveillance Modernization Act of 2007.

The American Civil Liberties Union (ACLU) supports Holt's bill and is most concerned with the lack of individual warrants in the RESTORE Act. An ACLU statement on the RESTORE Act can be read here.

The New York Times today discusses the issue of whether telecommunications companies should have legal immunity for helping the government with their surveillance, which is not currently in either House bill, but offered as an amendment during mark up and voted down.

Changes to the House bill were occurring rapidly today and more changes could be made before it is brought to the floor. Check back for more information, and read this article from the latest Watcher.

In response to the Protect America Act (PAA) signed into law in August which temporarily reformed the Foreign Intelligence Surveillance Act (FISA), Democrats are now working on a new, hopefully more conscious piece of legislation to revise FISA. The House Select Intelligence Committee is scheduled to mark up a bill next Wednesday and according to CQ ($$), Majority Leader Steny Hoyer (D-MD) has postponed plans to brief reporters on the bill, originally planned for today (Oct.5). Reportedly the bill would not grant retroactive liability protection to telecommunications firms that cooperated with government surveillance, a top priority for the administration, because the White House has not provided Congress with documents about those activities. House Intelligence Committee Chair Silvestre Reyes (D-TX), "said he favors a requirement that intelligence agencies secure a warrant for monitoring communications involving U.S. citizens in the United States beyond a short emergency period, even if the target of the surveillance is a foreigner located outside the country."

Reyes said the administration should be required to decide within 72 hours whether someone inside the U.S. is involved in a terrorist activity, and if so, the administration must get a warrant to continue monitoring their communications. If they are not, the monitoring activity must stop. However, it is not clear if those provisions will be in the new bill.

Civil liberties advocates are concerned that House Democrats will introduce a bill that hews too closely to the administration's desires. The Congressional Progressive Caucus, which includes 71 House Democrats, issued a statement calling for greater involvement by the Foreign Intelligence Surveillance Court in overseeing government anti-terrorism surveillance, and no "amnesty" for telecommunications companies.

Click here to read the Congressional Progressive Caucus' position on revising FISA.