According to Wired.com, the FBI's software for recording telephone surveillance of suspected spies and terrorists intercepted 27,728,675 "sessions".

"Twenty-seven million is a staggering number given that the FBI only got 2,176 FISA court orders in 2006 from a secret spy court using the Foreign Intelligence Surveillance Act. According to the math that means each court order resulted in 12,742 'sessions,' all in regards to phone, not internet, surveillance."

This does not give comfort considering Attorney General Mukasey's recent public comments. The New York Times reports that during a speech to a panel of the American Bar Association, Mukasey "suggested that lawmakers who opposed legislation before Congress to broaden eavesdropping powers — and to offer legal protection for telephone utilities that cooperate — were undermining the ability to deal with terrorist threats." And in a USA Today opinion piece he fired back at their editorial board arguing for telecommunications immunity.

Considering the short time frame Congress will have in January to fully debate reforms to FISA and considering it will be primary season, Senate Majority Leader Harry Reid (D-NV) sought a one month extension of the current Protect America Act. However, CQ ($$) reported that a top Republican Senator and the White House both rejected the proposal. "Faced with such opposition, the proposal appeared to be heading nowhere late Tuesday evening. That means Democrats would have just seven legislative days when they return from the holiday break to enact anything before the temporary law (PL 110-55) expires Feb. 1."

On December 11 federal appeals court ruled in Humanitarian Law Project v. Mukasey, that some portions of the Patriot Act that deal with foreign terrorist organizations are unconstitutional because the language is too vague. Plaintiffs argued that the language of the law is so vague that people could be prosecuted who trained members of foreign groups to peacefully resolve disputes.

The ACLU filed an amicus brief, and issued a press release which in reference to the part of the law being challenged states; "that sweeping provisions of the Patriot Act barring 'expert advice or assistance' or training' to groups considered terrorist organizations by the State Department prevented humanitarian groups from providing aid in war-torn areas, because in those areas it is sometimes impossible to provide aid without working with or through organizations that engage in both lawful and unlawful activity.

The Senate voted 76-10 yesterday (Dec. 17) to begin debate on a bill (S.2248) to amend the Foreign Intelligence Surveillance Act (FISA). However, after it was clear during debate that resolving the issues of the many amendments would be too difficult, Senate Majority Leader Harry Reid (D-NV) decided to postpone the vote on the measure until after the winter break in 2008.

Senator Christopher Dodd (D-CT), who promised to lead a filibuster of the bill because it gives telecommunications companies retroactive immunity, made some strong remarks on the Senate floor. "The bill now before us would create a legal regime for surveillance under reworked and more reasonable rules." Dodd went on to say;

We have seen this administration chip away at the rule of law at a dozen points. Its relentlessness may be its greatest strength—the assault becomes numbing, and our healthy outrage grows dull. It was an outrage when this president set up secret courts outside the law. It was an outrage when he ignored the courts and tapped our phones. It was an outrage when he sanctioned torture. But outrage upon outrage upon outrage—and we wind up in a stupor. We've allowed each abuse with nothing more than a promise to resist the next one—and the next one, and the next one.

Meanwhile, President Bush has promised to veto any legislation without telecommunications immunity and if it has greater restrictions on how the surveillance is conducted.

Civil liberties groups are praising this news. However, there is an uncomfortable amount of time between Congress' return and the Protect America Act's (PAA) expiration of Feb. 1. The bill was pulled yesterday to avoid anything being rushed through before the winter recess, but what about this scenario; because of a time crunch a bill is simply rushed through in January or the current PAA is simply extended. We will have to wait to see what happens in January.

Senators plan to begin debating permanent revisions to the Foreign Intelligence Surveillance Act (FISA) next week, but this does not guarantee that anything will be accomplished. The Senate Judiciary Committee did not approve Senator Arlen Specter's (R-PA) bill that would have substituted the government as the defendant in lawsuits against the telecommunications companies. Specter will likely offer the measure as an amendment during floor debate. According to CQ ($$) "Senate Majority Leader Harry Reid planned to file a petition to invoke cloture on a motion to proceed to a bill (S 2248) by Senate Intelligence Chairman John D. Rockefeller IV. Reid said the cloture vote would occur early Dec. 17." Meanwhile the Senate Judiciary Committee reported a different version of S. 2248, without language on telecommunications immunity, which will be offered as an amendment during floor debate. A recent report by the Congressional Research Service compares the House bill and the different Senate proposals.

Fourteen Senators sent a letter urging Reid to accept the Judiciary bill as the base bill. "While the structure of Title I of both bills is the same, and both make improvements over the Protect America Act, the reasonable changes to Title I made in the Judiciary Committee ensure that the FISA Court will be able to conduct much-needed oversight of the implementation of these broad new surveillance authorities, and help to better protect the rights of innocent Americans."

We too hope that the Senate takes on the Judiciary Committee's changes. The ACLU has an action alert here where you can tell your Senators to support the Judiciary approach and oppose immunity. The temporary changes to FISA that passed in August expire in February and given the pressure of this deadline and the rush to leave for the holidays, hopefully nothing will be passed in hast as was done in August.

When the week began, it seemed the Senate would take up FISA reform, but this has been delayed. As expected Senator Arlen Specter (R-PA) has introduced a bill (S.2402) that would allow the U.S. government to take the place of the telephone companies in lawsuits related to the warrantless surveillance program. The Senate Judiciary Committee was set to mark up Specter's bill this morning (Dec.6). BNA Money and Politics ($$) highlights some of the concerns with this proposal;

"Three daunting hurdles could derail these cases if the administration steps in as the defendant--state secrets, executive privilege, and sovereign immunity," said Caroline Fredrickson, director of the American Civil Liberties Union's Washington legislative office. "Unless something is done to ensure that these defenses cannot be used to shut down these legitimate and crucial lawsuits, substitution is just immunity in sheep's clothing."

Update: Delayed Again
After many lawmakers raised concerns with Specter's bill, the Senate Judiciary Committee postponed their planned vote today. The committee rescheduled consideration of the bill until next Thursday (Dec.13). If Majority Leader Reid decides to bring legislation on FISA to the floor before then, Specter would offer his bill as a floor amendment.

In attempting to pass legislation that would update the Foreign Intelligence Surveillance Act (FISA), President Bush is calling on Congress to pass a bill with language providing retroactive immunity to telecommunications companies that helped the government with warrantless surveillance. Bush accused some in Congress of "blocking efforts to provide meaningful liability protection to those companies now facing multi-billion dollar lawsuits only because they are believed to have assisted in efforts to defend our nation following the September the 11th attacks." While major differences remain between Senators, the Senate may take up the legislation this week, and at least two Democrats, Senators Chris Dodd and Russell Feingold, are promising to put up procedural roadblocks.

The most contentious issue during floor debate is bound to be the issue regarding the telecommunications companies. A bill (S. 2248) approved by the Senate Intelligence Committee would provide immunity for surveillance activities, but when the Judiciary Committee considered the same bill, they voted to send a substitute to the floor that did not address the issue.

Feingold will most likely object to giving unanimous consent to allow the Senate to take up the Intelligence bill, forcing a floor vote in order to proceed. Feingold could also offer an amendment that requires the administration to get approval from the secret FISA court before any spying could begin.

BNA Money and Politics ($$) reports that Senator Arlen Specter (R-PA) "has proposed a compromise that would allow the U.S. government to take the place of electronic communication service providers with respect to lawsuits related to the warrantless surveillance program. Specter says that cases challenging the program should be allowed to go forward, even though he questions whether they will succeed." However, if the companies were replaced with the government as the defendants, it is questionable that the government would simply invoke state secrets during the court proceedings.

In the current issue of the International Journal of Not-for-Profit Law (IJNL), "The Shifting Landscape for American Not-for-Profit Organizations," Kay Guinane, Director of Nonprofit Speech Rights for OMB Watch writes an informative synopsis of counterterrorism measures that have affected American charities. Her article, "Counterterrorism Developments Impacting Charities encourages the charitable sector to "develop common-sense alternatives to propose to lawmakers." Considering the issue is focused on American nonprofits, the other articles are of great importance and relevance, such as, "NGOs Respond to USAID's Proposed Anti-Terror Screening", and "Good Governance Practices for 501(c)(3) Organizations: Should the IRS Become Further Involved?".