Feingold’s Questions

I’m still working through AGAG’s answers to a bunch of questions the Senate Judiciary Committee asked him last year (he only answered early this year). There’s an exchange involving Russ Feingold that is, I think, very instructive for understanding the recent FISA amendment.

You indicated at the hearing that the Administration has agreed to “submit” the program to the FISA court to rule on it if Congress passes the bill the Administration agreed to. If the FISA court were to review the program, would it do so in secret, and with only the government participating? Who would argue the case on the other side?

The Government is the only party to the ex parte proceedings for electronic surveillance orders under FISA (as is the case with respect to wiretap orders in criminal investigations under Title III and generally in proceedings to secure search warrants). Proceedings before the FISA Court are held in secret because of the nature and sensitivity of the information presented to the Court.

Feingold is talking about a different bill (Specter’s proposed bill from last year), but I think the answer is instructive. Not because it tells us anything we don’t know–yes, FISC’s proceedings are secret, yes, in a review before FISC, there will be no antagonist to the government arguing in favor of civil liberties.

But I think Feingold gets to the heart of issues that are also true for the amended FISA program. The review we’re talking about is inadequate because it doesn’t allow the public, or even another lawyer, to challenge the government’s program.

  1. Mary says:

    Actually, FISA did allow amicus briefs on the issue of bringing down the wall and the Constitutionality of same. Now that the Congress keeps handing over more and more, the validity of that FISA â€Appellate†opinion (which seems advisory and was poorly writtent to boo) is more and more questionable, bc some of its underpinnings were the foreign intelligence collection powers of the Executive in targeted foreign intel activities, that also generated criminal info. Now that there is no real limit on the sweep of what is being sucked in, the whole issue of bringing down the wall creates a larger and larger looming constitutional issue

    That is, if anyone in this country still gave a damn about the Constituion. Luckily, we have a fully ideologically cleansed adminsitration of loyal Bushies, or terrified whimpies, or amoral monstrosities and a Congress run by Dems, who apparently haven’t met a cause that didn’t involve campaign contributions that they were willing to fight for.

  2. Mary says:

    In a less snitty frame – I’m thinking that Feingold is trolling for an opportunity for briefed in Congresscritters to use security cleared lawyers to submit amicus. fwiw.

  3. Anonymous says:


    Do you mean he was trolling last year, when he asked this question, or in January, or now?

    And don’t worry about the snit–I think we’re all suffering from it.

  4. Anonymous says:

    Heh. Take, for instance, my attitude lately. Please. Just ask a couple of poor souls yesterday morning. I am VERY curious to know exactly which FISC appellate decision you are referring to, nature and source of the amici, and, as EW asked, exactly what you think Feingold is trolling for and when. Thanks, and Mary there are still a few of us willing to go down swinging. Strike that; not willing to go down at all, we are going to retrieve this mess from the abyss.

  5. endofworld says:

    I think Gonzales was arguing that benefits can only accrue if the program is submitted to court for review.
    And i understand from the follow sentence:

    â€Could they say they’re not receiving any benefit from that data mining, and therefore refuse to submit it for judicial review?â€

    that you think the new law recognizes that benefits can be operationally gained with out involving court and only states that that gains can only become legal if the operative program is submitted to court.
    If Mr. Gonzales understanding is correct with regard to new bill than they do not exactly have to make the claim that data mining does not provide any benefit.
    This can only be achieved if they claim data mining is distinct from surveillance itself and does not contribute any thing material enough to the (other)program to become part of it.The above mentioned contribution will in any case fall outside the law.

  6. Mary says:

    I meant that Feingold was trying to set it up, IMO, for there to be submissions of amicus briefs for portions of the program that would be authorized by Congress and submitted to review. It’s still an open question, but I think that is what he was getting at.

    bmaz I am only awar of one FISC appellate decision, style, as you might guess, In Re Sealed Case (where have I heard that before? *g*) http://www.fas.org/irp/agency/…..11802.html

    Per Curiam: This is the first appeal from the Foreign Intelligence Surveillance Court to the Court of Review since the passage of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-1862 (West 1991 and Supp. 2002), in 1978. This appeal is brought by the United States from a FISA court surveillance order which imposed certain restrictions on the government. Since the government is the only party to FISA proceedings, we have accepted briefs filed by the American Civil Liberties Union (ACLU)1 and the National Association of Criminal Defense Lawyers (NACDL) as amici curiae.

    While everyone was focused on the Congressional legislation in the Patriot act re â€the wall†there was the Consitutional issue as well and that is one where the FISA judges had apparently staked out some ground in favor of some fashion of the wall – not as it was being implemented, necessarily – because of the significant issues of allowing for the roundup of criminal surveillance information to use against Americans on the basis of a warrant that had been issued, not on probable cause that an American was committing criminal activity, but merely on probable cause that they were in contact with a foreign power.

    In the furor to drive stakes through the heart of â€the wall†and make it a scapegoat, no one bothers to mention that much. The appellate review opinion is exceptionally poorly drafted IMO. But you can see where it was taken as a certain amount of carte blanche as well.

    The query would be — who has standing to take the appeal any further? The appellate review was based upon Gov being denied a warrant and gov taking an appeal, but who has standing to go further with the real party in interest kept sealed and the foreign surveillance being treated as state secrets and yet also allowed for use against a citizen for criminal prosecution (see the tapes in Padilla)

    IMO Feingold was thinking along those lines and that whatever is set up needs to have a way for there to be appellate review of these warrants – especially now that they are pretty much a de facto substitute for getting criminal warrants for American if they can allege any kind of however tenuous claim of foreign persons contact. So you can do a whole money laundering investigation, for example, based on trolling with no probable cause.

    I’m glad you’ve got the fight in you bmaz.

  7. masaccio says:

    Mary, I’m with bmaz, I’d sure like to see that opinion, and would settle for the amicus brief, but surely these are classified? I feel like a blind man in an unfamiliar house, can’t see, can’t figure out how to understand. Maybe it’s this lack of clarity that is so upsetting to you and bmaz and others: if we can’t see the problem, we can’t solve it, and it is really frustrating to see the brains here and elsewhere spinning like tops with no traction.

  8. Mary says:

    EW – this goes to your piece below, too that I didn’t see until now. I don’t think they bothered with an appeal to FISC. They went to Congress to rewrite instead. The question is, how does anyone know that they are even really adressing the issues the court raised? Were those just statutory language issues, or was there an underlying issue of using US based facilities to engage in surveillance and eavesdropping on US citizens with no real clear probable cause that they were in contact with foreign entities or powers at all or that there was a foreign intelligence reasonable need to troll through the US citizen info with a warrant, much less with no warrant.

    I got perplexed at McConnell talking about all the warrants he was having to sign of on for known al-Qaeda operatives.

    UH – why don’t they have those on tap and approved anyway? If they are known, and they may end up in contact with US persons, then why the hell wouldn’t he be getting warrants for them? Get FISA to approve lengthy periods of time between renewals and stuff – I can see that – and the new submissions, as old warrants expire, would tend to be replicating chunks of the old applications – so why was that such a big deal.

    In any event, if Gov decided to just duck taking an appeal and go to Congress instead – that’s probably why no FISC decision and there is no way to force that under the current status of the statute.

  9. Mary says:


    Maybe my link got buried in there.


    Cut and paste that into your browser and you’ll have the opinion.

    Also, in a very sad commentary that got completely swallowed up, I’m guessing Lamberth knew something was in the works. Preceding all this mess, ex-FISA Chief Judge Lamberth made a speech were he got very specific for him on many things and on these things he was clear — a) FISA works, and b) he was briefed on the Bush program and in his opinion it is a far worse way to go.

    Of course, that was before Congress voted to go along with it being even â€worser.â€


    At 3 a.m. on Aug. 8, 1998, the day after the bombings of the U.S. embassies in Kenya and Tanzania, the chief judge of a special court that supervises applications under the Foreign Intelligence Surveillance Act was awakened at home in order to approve five wiretaps, including one of Osama bin Laden’s former secretary in Texas.

    He gave other examples, too, of how long it doesn’t take in an emergency. Including issuing warrants from his car on 9/11 while waiting to be picked up by the FBI.

    Taking direct aim at the administration’s assertion, Lamberth noted that members of the court had approved almost 99 percent of the FISA applications presented. He added that he could not see a better way of conducting such surveillance.

    â€What the president did with the NSA,†Lamberth said, was â€a proposal for a worse way.â€

    Unfortunately – even though he went way out on the limb for them (like so many do) the Dems in Congress wouldn’t take what he gave them and run with it. At least they give a standard to the old Iraqi dinar – worth more than a Democratic Congressman.

  10. Anonymous says:

    Mary – Thanks. I printed off the opinion and will review it later; looks interesting and informative as to where we are today. Man, what a time to have pay attention to real, income generating, work…. As to why there was no appeal from the FISC, review technically-then appeal from there, I think you have it right. Thought I had put that in a comment earlier, but now realize it was an email to our patron Saint here. Cliff Notes version: No way they were going to seek review. For one they were going to lose badly on the merits. Secondly, and in a way more important, the review and appeal process from FISC would create a certified record of their actions and there is no way in hell they could allow that, for a multitude of reasons. They are in way deep, all in as they say in poker, and John Dean may have made one of the understatements of the still young century when he said â€Worse Than Watergateâ€.

  11. Boo Radley says:

    â€And don’t worry about the snit–I think we’re all suffering from it.â€

    Seconded, very enthusiastically.