Sheldon Whitehouse’s Speech

Whitehouse used his time to accuse AG Mukasey and DNI McConnell of being disingenuous in their public statements on FISA. As Whitehouse points out, the key issue (for him, in that he is alright with immunity) is how the government will be permitted to spy on Americans. Here’s his speech.

Just recently, the Attorney General of the United States published an opinion piece in the Los Angeles Times on our ongoing work to improve the Foreign Intelligence Surveillance Act (FISA). This follows closely on a similar opinion piece by Director of National Intelligence Mike McConnell in the New York Times. I ask unanimous consent that each of these be entered into the Record.

Both go on at some length about the importance of new legislation on foreign surveillance activities. They devote paragraph after paragraph to this. But the two leaders of America’s law enforcement and intelligence communities completely ignore – never once mention – the issue that is actually in dispute here: on what terms will we allow this administration to spy on Americans?

The heart of our debate today is the question of spying on Americans, 1. when they are outside the country, or 2. when they are incidentally intercepted by surveillance targeted at someone else.

This – wiretapping of Americans – has been the entire subject of our work on surveillance – and Judge Mukasey and Admiral McConnell never once even mention the topic.

There are really only two possibilities here, and each is regrettable. One is that these two gentlemen simply don’t know what is going on. That seems unlikely, because Director McConnell at least has participated in hearings on the subject, where we’ve discussed in detail our concerns about wiretapping Americans, and members of my staff are working through the details of the issue on a nearly daily basis with lawyers from the Office of the Director of National Intelligence and the Department of Justice.

So that leaves only one alternative: that these two gentlemen do know what is going on, and just choose to talk past the real issue; ignore its very existence. That is a shame, and I hope it is not the early propaganda phase of a Bush Administration effort to replicate the August stampede that got us into this pickle.

Since they haven’t mentioned it, here’s the problem.

The Protect America Act, passed in the August stampede, contains no statutory limitation on this administration’s ability to spy on Americans traveling abroad whenever it wants, for whatever purpose.

The only limitation that now exists on that power is Executive Order 12333, which says that the administration will not wiretap Americans overseas unless the Attorney General determines that that person is an agent of a foreign power.

The problem, as I noted in a speech in this Chamber recently, is the following proposition, contained in a secret Bush Administration Office of Legal Counsel memo related to surveillance activities:

“An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.”

In other words, the only thing standing between Americans traveling overseas and a government wiretap is an executive order that this President believes he is under no obligation to obey, and may secretly disregard.

For months, as we have worked to repair the flawed bill of August, the question of spying on Americans has been the issue of concern.

I and my staff, and many of my colleagues and their staffs, have been working diligently and in good faith to solve this problem.

What I have seen has been a thoughtful exchange by well-intentioned people who are committed to keeping America safe without trampling on the rights of Americans. We have talked not only with one another, on both sides of the aisle, but with people in this administration – including the staff attorneys at the DOJ and DNI. We have worked almost all the way toward making sure that Americans who are incidentally intercepted enjoy meaningful “minimization” protections. We have worked I think all the way toward making sure that a court order is required to wiretap an American who happens to be overseas.

For both Director of National Intelligence McConnell and Attorney General Mukasey to write op-eds as if the issue of spying on Americans abroad has no role in this debate, when it has been the key and central issue in this debate, is disappointing. How big does the elephant have to be before they acknowledge it’s in the room?

Ignoring this problem may serve the Bush/Cheney interest in unaccountable executive power. But it does not protect Americans’ privacy, and it does not make America safer.

I urge my colleagues to remember that the issue we are grappling with is a simple one: on what terms will we allow this administration to spy on Americans? It is a question with real implications for our democracy, our civil liberties, and ultimately, the security of this nation.

Unless we really believe that when Americans leave our country, we leave our civil liberties behind; unless we really believe that this government should have unfettered power to eavesdrop on conversations of families vacationing in Europe or soldiers serving in Iraq; then the authority to spy on Americans abroad cannot be left under the exclusive control of this administration. It is a matter that must be solved in the legislation Congress passes dealing with foreign intelligence.

That is why we have been working on this question so hard.

This is a serious question – I wish the two gentlemen leading the key departments of government involved had recognized that it exists – and I urge my colleagues to insist on the protections we have worked so hard for, that protect Americans from surveillance, as we go forward on this legislation.

We have come a long way. Chairman Rockefeller is owed our gratitude, and Chairman Leahy. I appreciate the efforts of the distinguished ranking members, Senators Kit Bond and Arlen Specter.

We are on the verge of an historic moment. Let us not let this moment slip away.

One wonders, how big does the elephant have to be in the room before they acknowledge it? Ignoring it may serve Bush and Cheney.

I think DiFi was supposed to come up right afterwards (Dodd got up for a few minutes, but has ceded to DiFi) to introduce amendments to fix the minimization and overseas spying issue.

  1. phred says:

    EW — just as an aside, when Whitehouse started talking about Executive Orders, I kept expecting him to mention pixie dust : )

  2. Rayne says:

    I don’t know if I can stick it out and watch this entire fiasco. I am getting physically sick watching and listening to this, feel the same sense of dread I felt about MCA vote.

  3. behindthefall says:

    Was that the whole speech that Whitehouse just gave? Nothing about telco immunity in it at all?

    Is Whitehouse right in shielding the telcos because he says that they would not be able to defend themselves properly? Should he instead let the telcos in court request that the court require of the Executive Branch whatever they need to mount a defense? Should he be willing to let the process work itself out farther downstream?

    Then there’s this thought which rattles around: Romney won election for Governor in Massachusetts, of all places. Will this translate to success on the national level? What made him succeed in MA? Will (WHITE AND MALE) defeat NOT (WHITE AND MALE)? Right now, I am not feeling confident that the Democrats are going to be in the White House in 2009.

    • emptywheel says:

      Whitehouse is wrong on immunity.

      But he’s right on two issues that are more important for us GOING FORWARD. He’s actually trying to get more protection for Americans than FISA has in it.

      • selise says:

        the problem i have with whitehouse separating the issues of immunity and minimization is that, i think, it leaves a huge loop hole: we can get excellent minimization of teh data kept by the nsa, but if the telcos are holding on to everything and doing the datamining for the nsa – what does that buy us?

        i’m thinking of the telcos as being a part of the nsa (as described in yesterday’s nyt article). without telco accountability, i don’t see how we have minimization.

        • emptywheel says:

          But immunity doesn’t do ANYTHING about this going forward!! Nada!! They are currently immune for what they’re doing.

          The only way to ensure they’re not holding onto your information is to have some kind of oversight.

          • phred says:

            EW — I agree that Whitehouse may be trying to get a crucial fix into the legislation that Bush might actually sign. But I also think Teddy’s point was critical. If we give telco’s immunity for knowingly breaking the law over an extended period of time — where will it stop? Next up, Blackwater, then Jeppson, then all the crooked contractors who made off with billions in Iraq, and on and on. And what will prevent any company in the future from blowing off the law, if they know the exec will retroactively fix it. I think the principle here is every bit as serious as the kind of oversight that Whitehouse is after. I’m not willing to forgo one on account of the other.

          • selise says:

            but will oversight of the nsa be enough? how will that help if the telcos (or other contractor) are holding onto my information/communications?

            if we don’t find out what the telcos have done in the past, will there be any motivation to create oversight and accountability mechanisms for them going forward? it was my understanding that whitehouse is focusing on oversight of the administration’s minimization procedures – not oversight of minimization procedures to be used by contractors or the telcos. do i have that wrong?

            it is my hope that if the truth comes out, fisa will be revisited to create laws to prevent abuse by the telcos.

            pipe dream?

  4. Leen says:

    DiFi “I truly believe that there are people who would do us serious harm and to our National Security”. Difi take a look in the mirror dear…your looking at one of those people. She is a warmonger, war profiteer and voted for Mukasey who wondered if waterboarding is torture and is now doing the Bush administrations bidding.

    With folks like DiFi in our nation doing harm to National Security by war profiteering, voting for Mukasey who needs enemies? ….plenty of them within the system.

    Hell we have an administration who outed a CIA undercover agent who was on the hunt for WMD’s. Plenty of folks in Washington who have harmed US National Security. Oh wait where are, Meiers, Rove, Rumsfeld, Wolfowitz and Gonazales living now?

  5. Leen says:

    Wonder if John Bolton used these telecom methods to spy on Colin Powell when he was negotiating with other nations?

    Sidney Blumenthal wrote about this…..79,00.html

    “The Bolton confirmation hearings have revealed his constant efforts to undermine Powell on Iran and Iraq, Syria and North Korea. They have also exposed a most curious incident that has triggered the administration’s stonewall reflex. The foreign relations committee has discovered that Bolton made a highly unusual request and gained access to 10 intercepts by the National Security Agency, which monitors worldwide communications, of conversations involving past and present government officials. Whose conversations did Bolton secretly secure and why?”

  6. JohnJ says:

    Spoken like a true Gooper, he’s actually projecting. “They are ignoring the elephant” while he ignores the gorilla.

    Oh wait…he’s a Dem?

    I love the pretense that the only problem is Americans “accidentally” included or traveling. They are reading YOUR MAIL and recording YOUR PHONE CALLS, dummass.

  7. Leen says:

    Kennedy wrapped around the truth today!
    Kennedy “this is the Bush administration’s desperate attempt to erase the past”

  8. MadDog says:

    I’m still irked at Senator Whitehouse wrt to retroactive immunity. For someone who “supposedly” stood for the rule of law as a prosecutor, he somehow fails to understand that it is NOT ok for anyone including big Telcos to break the law.

    The BS that flows from Repug mouths of “it’s a victim-less crime, no harm – no foul, we didn’t break into the Watergate this time, etc.” sounds like nothing more than their latest excuse for staying out of jail for crimes they’ve committed.

  9. BooRadley says:

    Jane reporting that Obama will co-sponsor the filibuster with Dodd. She’s still waiting for responses from the Clinton and Edwards campaigns.

  10. MadDog says:

    Does anyone know if some Democratic Senator will offer an amendment wrt to Minimization procedures being cast in statutory concrete as opposed to EOs and AG pixie dust-laden toilet paper?

  11. oldtree says:

    too bad we have a totally corrupt system. you can’t really expect the beneficiaries to stop their gravy train?
    it is now up to persons, citizens to do what they can to stop us joining the national socialist party.

  12. Hugh says:

    If that is the entirety of Whitehouse’s speech, I can only say that it is a bit strange for him to accuse Mukasey and McConnell of talking past the issue of minimization in their op-eds when Whitehouse speaks past the issues of telecom immunity, reverse targeting, and basket warrants.

    • bobschacht says:

      “If that is the entirety of Whitehouse’s speech, I can only say that it is a bit strange for him to accuse Mukasey and McConnell of talking past the issue of minimization in their op-eds when Whitehouse speaks past the issues of telecom immunity, reverse targeting, and basket warrants.”

      I saw the speech on TV before leaving for work this morning (Hawaii), and IIRC EW cuts off the speech before the ending. Again, IIRC, Whitehouse ended by endorsing Snarlin’ Arlen’s substitution language (WTF?!?!?) which goes back to the Q @7 about immunity: Apparently, Whitehouse wants the telcos to be able to pass guilt back to the Admin. I think this is a pretty bad idea, along with LHP? who wrote about it on FDL a few days ago.

      Bob in HI

  13. emptywheel says:


    I understand. But it is not either or. Dodd is not filibustering for minimization oversight. Which means the corporations (maybe) don’t get off, depending on how BushCo work the State Secrets. But even if Dodd won, it would mean that they may be holding onto our data–legally.

    • phred says:

      Fair enough, so lets encourage him to filibuster the whole thing to a standstill and let PAA expire and try again. Maybe Congress will craft better legislation if impeachment is underway and the impediments to the rule of law are indisposed ; )

  14. Jeff says:

    But did FISA itself apply to Americans abroad? David Kris appears to say no:

    The statute does not apply (and has never applied) where all parties to a wire or radio commuication are locaed abroad, even if they are American citizens, and even if the communication is intercepted inside the United States. Noe has the statute ever regulated surveillance that is conducted abroad of a person who is located abroad, even if the person is an American.

    Now, maybe Whitehouse is not talking about wire or radio communications? Or maybe he wants to expand the protections for Americans abroad by bringing them within the ambit of FISA regulation. But as best as I can tell, that’s what it would amount to, right?

    • emptywheel says:

      No, that’s precisely what Whitehouse is talking about. Kris says that one thing folks meant to go back and fix was protection for Americans overseas. But that never happened, partly because the protection for Americans overseas was inscribed in an Executive Order in the interim.

      That protection woudl still exist, if Bush didn’t treat EOs like Pixie Dust. So Whitehouse is trying to put this into law so it’s no longer dependent on Bush’s Pixie Dust.

  15. Jeff says:

    Ok, so best as I can tell, Whitehouse must be arguing for an expansion of what FISA regulates to include the communications of Americans abroad because all that regulates that as of now is Executive Order 12333, and Whitehouse’s point is that Bush has secretly made any and all Executive Orders meaningless as a guide to what the government can and will do. So in fact, Whitehouse is arguing for filling that gap left by FISA itself and making clear that Americans’ communications abroad are covered by FISA.

    • LS says:

      Whitehouse’s comments basically say that no matter what FISA says or doesn’t say, Bushco will do whatever they want to do…whenever they want to, and that the real issue is the hubris of the WH to spy on Americans anyway; therefore, he is saying, don’t waste energy trying to bring the Telcos to justice, because there is no justice anymore anyway, because of all of the pixie dust…Go after the Administration, because they are the problem…

      That’s what I think he was saying in a roundabout way.

  16. WilliamOckham says:

    The part of this that I find most frustrating is that no one in Washington seems to understand the fundamental nature of the threat we face. There are so many issues (torture, DOJ politicization, the false intelligence used to start the war, the NSA spying, Abramoff scandal, etc.) that our civic institutions have been overwhelmed. People can’t see the creeping tyranny that the current Administration embodies. All the things I included in the parentheses above are hallmarks of tyranny, but inside the Beltway no can believe that their dinner companions want to subvert the Constitution.

    • phred says:

      I disagree WO, I think Teddy made it very clear that he gets it, that the FISA legislation is all of a piece and tyranny is at its heart. I thought his speech was terrific.

      • WilliamOckham says:

        I haven’t been able to watch the proceedings today. I’m heartened to learn that somebody gets it.

        • phred says:

          I found myself truly thankful that we had that storm yesterday, got an unexpected day off so I could watch : ) If you can find a link to Teddy’s speech and Dodd’s early speech, watch if you can, they were great.

          • selise says:

            I found myself truly thankful that we had that storm yesterday, got an unexpected day off so I could watch : ) If you can find a link to Teddy’s speech and Dodd’s early speech, watch if you can, they were great.

            the video webstreams will be at this link in c-span’s archives (probably it will take until tomorrow)

  17. Jeff says:

    Point being, there is something a little misleading about Whitehouse’s statement that:

    The Protect America Act, passed in the August stampede, contains no statutory limitation on this administration’s ability to spy on Americans traveling abroad whenever it wants, for whatever purpose.

    The only limitation that now exists on that power is Executive Order 12333, which says that the administration will not wiretap Americans overseas unless the Attorney General determines that that person is an agent of a foreign power.

    That is, strictly speaking, all true, but what it crucially leaves out is that the PAA brought no change in this regard. FISA as it existed before PAA did not provide any statutory limitation on the government’s ability to spy on Americans traveling abroad without regulation either, right?

  18. Jeff says:

    It strikes me that the big issue is the other one that David Kris identified, and that Whitehouse touches on in his 2., namely, permission – which is given with the PAA – for warrantless surveillance of domestic communications in certain circumstances. Though the government denies this reading, Kris is persuasive on this count. That is the genuinely worrisome thing, but it seems to be getting little or no attention.

  19. BooRadley says:

    OfT, but the kind of leverage the telco’s and the WH have over the Democratic Senat scares me regarding the prospects for net neutrality.

  20. Hmmm says:

    (Collected from a few FDL posts I’ve made today… apologies if anyone is unhappy about crossposting, I just thought this group might be a better place for these thoughts.)

    I read Jack Goldsmith’s book over the past few days. The OLC opinions written by Yoo are the root of all of this. That crappy wingnut lawyering got adopted as a (erstwhile) legal foundation because, and only because, human beings were too frightened at the time to think clearly or resist. Then layer upon layer of action and precedent built up around that flawed foundation. Now time and clear thinking and reason are finally revealing the original rotten lawyering to those on the inside — and if the end result of this filibuster is only the exposure of those documents in the OEOB that Wyden (and Whitehouse before him) illuminated, then it will have been well worth it. The original error won’t be corrected until and unless forced by sunshine. We can’t get back on the right course with a bent compass. We have to fix the compass.

    So: Somebody on the floor in this debate needs to bring it around to the oath of office: Protect and defend the Constitution against all enemies, foreign and domestic. To work to enable the evasion of the Fourth Amendment is to assail the Constitution. Tell it like it is.

    If the R’s really believe that Article II wartime powers trump Article I and the Bill of Rights, then they should not be afraid to take it to the Courts and get a reported decision to settle the issue. I’m sure at least one of the cases in play on this point could be litigated without revealing essential state secrets. And clearly SCOTUS is in their pocket. According to Jack Goldsmith, the reason why they don’t is that simply by consenting to litigate the question, the Executive would be establish Article III’s precedence over Article II wartime powers, an outcome they would find just as intolerable as a precedence of Article I over Article II wartime powers. Executive assertion of exceptional Article II wartime powers is the common blocking issue in every single important instance of Executive overreach.

    This is a Constitutional crisis. How do we arrive at a resolution of the underlying Article II wartime powers argument when it will never be brought to a Court of law? Can this debate be broadened out from the telco retroactive immunity issue to address the Constitutional crisis? Can we get the Senators to march en masse from the Hill over to the OEOB? That would make a statement. The people could fall in line behind, in their thousands.


  21. prostratedragon says:

    Since the bil’s been pulled for a few weeks, maybe one good use for the freed energy would be to try to budge Whitehouse. Is any of these guys really open to citizen persuasion, I wonder?