Sen. Diane Feinstein and Orrin Hatch's anti-gang legislation, S. 456, more aptly called the "Gang Fear and Pandering Act" has passed the Senate at a cost of $1 billion.

Even though some of the worst provisions were stripped from the bill before passage, this bill is bad . In June, I listed some of the things wrong with it:

The Spector-Leahy bill to restore the right of habeas corpus to detainees has been defeated. An "aye" vote of 60 Senators was needed. The final tally was 56 to 43. The nay votes included 42 Republicans and Joe Lieberman.

The roll call vote is here.

What it means: Executive imprisonment without judicial review. President Bush can continue to designate and detain individuals as "enemy combatants" and they have no meaningful ability to challenge their confinement.

People for the American Way:

Once, people the world over had faith that America was a country where you couldn’t just suddenly ‘disappear,’ taken away by the police in the night, never to be heard from again. Guilty or innocent, you would have your day in court.”

No more.

Sen. Patrick Leahy and Chris Dodd introduced a bill this week to restore habeas. Help them out.

They need 60 votes tomorrow. Latest word is 55 Senators are on board so far, with key targets as Lugar, Hagel, Collins, Ben Nelson, and Joe Lieberman.

If these are your Senators, pick up the phone and call. If you've got a blog, post and ask your readers to call.

As Christy of Firedoglake says in her informative post, the Constitution needs your help today.

National Intelligence Director Mike McConnell engaged in a long and meaty q and a with the El Paso Times on the FISA Amendment and NSA program.

He mentions a few times that he had "20 lawyers" working on the "fix" and at one point he says they were working on it for two years.

[W]e sent up a version like Monday, we sent up a version on Wednesday, we sent up a version on Thursday. The House leadership, or the Democratic leadership on Thursday took that bill and we talked about it. And my response was there are some things I can't live with in this bill and they said alright we're going to fix them. Now, here's the issue. I never then had a chance to read it for the fix because, again, it's so complex, if you change a word or phrase, or even a paragraph reference, you can cause unintended ...

Q: You have to make sure it's all consistent?

A: Right. So I can't agree to it until it's in writing and my 20 lawyers, who have been doing this for two years, can work through it. So in the final analysis, I was put in the position of making a call on something I hadn't read.So when it came down to crunch time, we got a copy and it had some of the offending language back in it. So I said, 'I can't support it.' And it played out in the House the way it played out in the House.

He also talks about the liability of phone companies for working with the NSA program. (He says we'll need to add an immunity from liability provision to the bill when Congress reconvenes.) He also reviews what happened in the Senate and talks about what the "offending language" was. It had to do with minimization.

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I have not engaged the very silly Ben Wittes (and yes I know he is supposed to be some "Serious" Person, but, he isn't) on FISA, though others have. But this TNR defense of Wittes, via Sam Boyd, made me laugh:

I'm not entirely convinced by Wittes's claim that the bill Congress passed was a sound one, but I also can't help but feel that Yglesias and Lemieux are being a bit cavalier in their dismissal of the need for expanded surveillance powers in the first place. There's probably no good way out of this dilemma (so perhaps a law with a strict sunset provision isn't such a terrible place to start), but it would be comforting to at least see a bit more hand-wringing and equivocation from Yglesias and Lemieux before condemning Wittes's piece.

A little handwringing and equivocation BEFORE handing over this unprecedented power to Alberto Gonzales would have been in order. Funny, I did not see Wittes do much handwringing about that.

These "Serious People" are sooo, well, stupid. Sorry, I have no better word for it. And it is my word, not Jeralyn's or Chris'. I am the jerk here ok.

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include -- without court approval -- certain types of physical searches on American soil and the collection of Americans' business records, Democratic Congressional officials and other experts said.

Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.

They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.

Once again, Congress adopts something and reads it later. What are we paying you guys for?

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Scarecrow at Firedoglake and Marcy at The Next Hurrah are covering today's New York Times article suggesting that the FISA Amendment grants far more power than previously thought to intercept phone calls and obtain call and e-mail records of ordinary Americans not suspected of being involved in terrorism.

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

I'd like to focus on one other aspect: deficiencies in reporting requirements. How will the American whose conversations, business records, call records or e-mails are intercepted by virtue of the FISA Amendment find out and how will they be able to challenge it? The answer, as far as I can tell, is they won't know about it and they won't be able to make a legal challenge. The ACLU describes the paltry reporting requirements here.

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at Bloggingheads. Marty is right as usual. Kerr is less right than usual.

After an unproductive meeting with Justice officials, the ACLU writes a letter to Attorney General Gonzales:

Dear Mr. Attorney General:

Today, my staff was briefed by the Justice Department regarding guidelines to institute the new foreign to domestic wiretapping authority Congress granted to you this month by The Protect America Act.

Regrettably, my colleagues reported that they learned virtually nothing new about how you intend to use the broad new authority to intercept emails and phone calls when one party is in the U.S., or how those U.S. people will be protected from unwarranted government intrusion. With so much at stake, the public needs to have a fuller understanding of what its Justice Department will be doing with its most private communications.

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The ACLU today filed a motion today with the FISA Court (text here, pdf) demanding that the secret court release its opinions that led to the new FISA legislation.

In the first effort of its kind, the American Civil Liberties Union will today file legal papers with the Foreign Intelligence Surveillance Court (FISC) requesting that it disclose recent legal opinions discussing the scope of the government's authority to engage in secret wiretapping of Americans

"Publication of these secret court orders is vitally important to the ongoing debate about government surveillance," said Jameel Jaffer, Director of the ACLU's National Security Project. "Virtually everything we know about these orders we've had to learn from executive branch officials, but executive branch officials are plainly not disinterested parties in a debate about the appropriate reach of executive branch surveillance. The public has a right to first-hand information about what the court permitted and what it disallowed."

Great read today, in the Nation: Data Mining Our Liberties. Aziz Huq examines the recently passed "Protect America Act of 2007." The Brennan Center says:

Azi believes the law "is a dramatic, across-the-board expansion of government authority to collect information without judicial oversight," and "an open-ended invitation to collect Americans' international calls and e-mails."

Huq breaks down how and why this law came into being and notes that, in truth, the law actually does not expire in 6 months. Ultimately it gives the Administration "power without responsibility" and "allows the government to spy when there is no security justification."

Just a few of the points:

The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. . . . A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. - Federalist 51

Surely there are few Administrations in history that best demonstrate the need for these auxiliary precautions than the Bush Administration.

In writing approvingly of the FISA Amendment, Orin Kerr ignores these concerns: