Not only shouldn't companies that helped the government's warrantless spying on American citizens be given retroactive amnesty, the government should establish a national commission — similar to the 9/11 Commission –to subpoena documents and testimony in order to find out – and publish – what exactly the nation's spies were up to during their five year warrantless, domestic surveillance program.

In other words, House Democrats aren't planning a compromise on telecom amnesty and are actually going on offense to find a way to learn more about President Bush's five-year secret "Total Information Awareness" program.

At least that's what's suggested by a 119-page draft bill being circulated by the leaders of the House Intelligence and Judiciary committees as answer to the Administration-backed Senate spying bill.

The bill proposes a way for the government to issue blanket surveillance orders in order to force American telecom and internet providers to give the government a copy of every phone call, email or instant message that is believed to involve a foreigner. That mimics the Senate version and largely legalizes the president's warrantless wiretapping program.

However, the bill restates – as the 30-year old spying law stated – that the law is the only route for the government to conduct electronic surveillance inside the United States. Bush opposes that language and says he has the power as Commander in Chief to spy inside America without any Congressional or court oversight.

The bill also requires two audits of the warrantless wiretapping program – a bipartisan National Commission and an Inspector General review of the warrantless wiretapping program.

House Democrats are also seeking to block the administration from using the 'state secrets' privilege to block telecoms from showing federal judges – even in chambers – the letters given to them by the federal government about the legality of the program.

Under the Foreign Intelligence Surveillance Act which the companies are being sued for violating, the companies could escape the lawsuits if they have a signed letter from the Attorney General, signed under oath, that the surveillance has "no substantial likelihood" of acquiring the content of a U.S. person's communication and the surveillance is targeted at communication means used exclusively by foreign powers (this is the foreign embassy exception).

The companies claim that they have no defenses against the suits filed against them because the government says the letters are too-classified for even federal judges to see. The groups suing the companies doubt the letters comply with the requirements of the nation's spying laws and say they would be fine with the telecoms showing those letters in court.

UPDATE - Electronic Frontier Foundation attorney Kevin Bankston – who has been the San Francisco-based group's emissary to D.C. – says he's very pleased with the proposal:

The house has apparently agreed with what we have been saying all along – the only meaningful compromise is a solution to the state secrets problem The House has answered the telecoms' core complaint that they cannot defend themselves in court … and cleared the way for the litigation to proceed fairly and securely. The Administration says the companies participated in good faith. Now the companies can do what we wanted them to do all along – tell their story to a judge.

This bill also does not move the cases out of federal district court into the secret spying court, as has been championed by Sen. Dianne Feinstein (D-California), and which many have speculated would be the compromise. Bush has threatened, however, to veto any bill that doesn't give total retroactive amnesty to the telecoms, even if that veto rejects spying powers he himself says are vital to national security.

THREAT LEVEL hasn't had time to parse the entire bill yet and could use help seeing what is and is not in the fine print.

The bill summary says:

FISA Amendments Act

Bill Summary

March 11, 2008 The revised House legislation to amend FISA grants new authorities for conducting electronic surveillance against foreign targets while preserving the requirement that the government obtain an individualized FISA court order, based on probable cause, when targeting Americans at home or abroad. The House bill also strongly enhances oversight of the Administration’s surveillance activities. Finally, the House bill does not provide retroactive immunity for telecom companies but allows the courts to determine whether lawsuits should proceed. Title 1: Surveillance Authorities • Provides for surveillance of terrorist and other targets overseas who may be communicating with Americans.

• Requires the FISA court to approve targeting and minimization procedures – to ensure that Americans are not targeted and that their inadvertently intercepted communications are not disseminated. These procedures must be approved prior to surveillance beginning – except in an emergency, in which case the government may begin surveillance immediately, and the procedures must be approved by the court within 30 days. (This may be extended if the court determines it needs more time to decide the matter).

• Provides prospective liability protection for telecommunications companies that provide lawful assistance to the government.

• Requires a court order based on probable cause to conduct surveillance targeted at Americans, whether inside the United States or abroad.

• Requires an Inspector General report on the President’s warrantless surveillance program.

• Prohibits “reverse targeting” of Americans.

• Explicitly establishes FISA Exclusivity – that FISA is the exclusive way to conduct foreign intelligence surveillance inside the U.S. Any other means requires an express statutory authorization.

• Sunsets these authorities on December 31, 2009 (same as the PATRIOT Act sunset). Title 2: Litigation Procedures for Telecommunication Company Liability • Does not confer retroactive immunity on telecom companies alleged to have assisted in the President’s warrantless surveillance program.

• Provides telecom companies a way to present their defenses in secure proceedings in district court without the Administration using “state secrets” to block those defenses. Title 3: National Commission on Warrantless Surveillance • Establishes a bipartisan, National Commission – with subpoena power – to investigate and report to the American people on the Administration’s warrantless surveillance activities, and to recommend procedures and protections for the future.

Documents: 119-page draft FISA bill (.pdf), the bill's summary (.pdf), and a three-page chart (.pdf) comparing the original House bill (Restore Act), the Senate version and the new draft is here.

Photo: PingNews.com