Jello Jay Advocates Illegal Spying on Americans

Thanks to Selise for making this YouTube.

The most eye-popping moment from yesterday’s FISA debate came when Jello Jay spoke against a Feingold amendment designed to ensure the government does not use US person information collected after the FISA Court has judged that that particular collection program does not adequately protect US persons from being spied on.

Feingold’s amendment is modeled on one in the existing FISA law, which prohibits the government from using information gathered during an emergency 72-hour period of collection if the FISA Court later finds that there was not probable cause to justify the warrant itself. Feingold simply transfers that concept onto the collection programs of the new FISA bill, with the logic that, if the FISA Court rules that a program does not sufficiently protect Americans, then the government should not be able to use that information on Americans even after the Court has given the government 30 days to fix it.

Barring this amendment, the government can continue to use information collected on US persons, even if it gathered that information in defiance of a FISA Court ruling. Without this amendment, there is nothing preventing the government from simply ignoring one after another of the FISA Court’s rulings. Which says that, without this amendment, there is nothing preventing the government from spying on Americans, because they will be able to disseminate information on Americans even if that information was improperly collected.

But Jello Jay doesn’t think we should put those kind of restrictions on the government.

In a floor speech near the end of yesterday’s debate, Jello Jay explains his logic (see also Bond’s opposition to the amendment and Feingold’s rebuttal of their arguments). He starts by emphasizing that he is speaking to establish a record of legislative intent for the eventual court challenges.

I want to add that what the Vice Chairman and I are doing, in that we both believe that all of this is going to be litigated in the Courts, for decades to come, that all that is said here, by us and by everybody else, becomes an important part of what that record, will become a part of it.

So understand–all of the language that follows is intended as a legal record to govern the interpretation of the law by Courts in the future.

Jello Jay goes on to explain why he opposes Feingold’s amendment.

The Feingold amendment goes beyond requiring that collection be terminated or deficiencies be corrected. It restricts the use or disclosure of any information collected that concerns US persons with anyone unless the AG determines that it represents a threat of death or serious bodily harm or, the person consents.

[snip]

I can understand the appeal. Senator Feingold has said it ensures there are consequences when the government doesn’t adequately develop its procedures. Hard to argue.

But looking at the consequences of this amendment in more detail makes it clear that the provision is impractical.

[snip]

It creates serious risks that we will lose valuable intelligence.

[snip]

In contrast to limiting the use of a small amount of information collected on one target during 72-hours of emergency procedures, Senator Feingold’s amendment potentially limits the use of all information gathered through a new system of intelligence collection.

To understand why these are different situations, it’s useful to consider the difference between traditional FISA applications and orders and the new Title VII provisions in which we have wrapped a number of parts. Unlike traditional FISA applications, which permits the collection of information on one target, the new FISA provision permits a system of collection. The Court’s role in this system of collection is not to consider probable cause on individual targets, but to ensure that the procedures used to collect intelligence are adequate. The Court’s determination of the adequacy of procedures, therefore, impacts all of the electronic communications gathered under the new mechanism, even if it involves thousands of targets.

[snip]

Senator Feingold’s amendment relates to all of this intelligence collection. [This is actually false, as Feingold went on to point out in his rebuttal.] If the Court finds a deficiency that the government does not correct within thirty days, the Federal government could not disclose any information on US persons that was gathered as part of the new intelligence collection system without the consent of the person. Thus, unlike the existing emergency procedures, which uses the, limits the uses of a small amount of intelligence gathered over a 72-hour period on one target, Senator Feingold’s amendment will potentially restrict the use of large amounts of intelligence, without regard to the importance of the intelligence.

Rockefeller goes on to make further false assertions about Feingold’s amendment, trying to claim that Feingold’s provision, which only kicks in when an analyst realizes he has US person data, actually invites more invasion of privacy, not less.

Jello Jay’s speech is eye-popping for several reasons. It reveals he simply does not care if the government abuses this collection program. For him, it’s more important to make massive collection easy than to include safeguards against abuse. His speech amounts to legal sanction for the government to abuse this program.

As Feingold said in this rebuttal of Jello Jay’s comments,

The notion that the government should have a complete free pass, and have no consequence whatsoever means that these oversight and these restrictions by the FISA Court have no meaning.  It simply allows them to go and intrude on the private conversations of Americans with no consequences. 

Also, Jello Jay’s speech reveals just how false are all the claims that this program does not involving spying on Americans. The reason he falsely asserts that Feingold’s program would cause the government to lose all of the information collected in a given program is because the US person data collected as part of these programs cannot be segregated out from the foreign data.

This program is, Jello Jay reveals, designed to spy on Americans.

image_print
146 replies
  1. merkwurdiglieber says:

    It is the only time I have ever seen anything like emotion in Jello’s
    delivery, and it comes in an attack on a fellow Democrat in a fight
    over illegal domestic spying… just keep Jello Jay talking and we
    might find out more than he intends. This instinct to go after the
    citizenry runs deep in the Rockefeller gene pool, he needs to be a
    Republican and get it over with.

  2. IMbobo says:

    And that’s the kicker right there. FISA was designed to require an individual warrant, based on probable cause, for the government to collect data on US persons. Apparently today that pesky old 4th Amendment rivals only the Geneva Conventions in quaintness.

  3. TheraP says:

    serious risks that we will lose valuable intelligence.

    Seems like the Senate is doing that all by itself…. too many have lost their intelligence!

    Why do they hate our freedoms?

  4. Jonathryn says:

    Feingold and Dodd should just come out and say it: This is a domestic spying bill under cover of foreign intelligence surveillance. As we’ve heard from Sibel Edmonds, the FBI’s translation section is a shambles and can’t even keep up with business on a day-to-day business. Expanding a wiretapping program that feeds into the mess that is the translation program doesn’t make any sense unless you realize that what they want is more wiretaps that Don’t Need to Be Translated.

    • JimWhite says:

      So what flavor of jello is Jello Jay? Give reasons for your choice.

      Definitely lemon, or as someone around here so aptly put it recently, yellow puddle.

    • phred says:

      So what flavor of jello is Jello Jay? Give reasons for your choice.

      I could never tell the difference between cherry and strawberry, so when I was a kid I simply referred to red-flavored jello (this conveniently also applied to kool-aid). So, in that vein, Jello Jay drank the Red Republican Kool-Aid to become Red Republican Jello.

      Awfully nice of Reid to gut the Constitution on Super Tuesday. Now even voting gets to join in the kabuki.

  5. IrishJIm says:

    So Jello Jay hates America. I guess generations of excessive wealth impacts your value system. If I am reading and listening correctly, Jay could care less if the Executive branch has systematically collected illegal information on thousands of Americans. The Government should be able to use this information because after all, those analysts worked hard capturing all of that illegal information. Why does Jay want to violate our consitutional rights? Even he admits this legislation will be fought out in the courts for the next 10 years. My personal opinion is that some of our leaders honestly believe that the Executive branch is completely incompetent and needs all the advantages it can get in order to perform the basic functions of protecting it’s citizenry.

    • Evolute says:

      I guess generations of excessive wealth impacts your value system. If I am reading and listening correctly, Jay could care less if the Executive branch has systematically collected illegal information on thousands of Americans

      .

      It’s quite possible the excessively wealthy envision a day when they might need an aggressive government to protect themselves from class warfare that has taken to militant underground destabilization. A nightmarish scenario with the elite; convinced that the masses where actually out to get even.

      Some might call it a sense of guilt, and self-preservation.

  6. brendanscalling says:

    He’s not yellow puddle flavored.
    Rockefeller’s just plain old shit flavored. Your standard issue piece of shit, worthless even for compost.

    And that’s not a mouth on his face: it’s just a second asshole.

  7. selise says:

    as an aside, yesterday taught me (again) an important lesson – and that’s the importance of even the mostly scripted kabuki we see on the senate floor. when we pay close attention, there’s a lot to be learned.

    what a shocker (to me) that jello jay would make it so clear – and do so without any sign of shame. why is jello jay still chair of the intelligence committee?

    • merkwurdiglieber says:

      Seems a Democratic chairman must be a blue dog like David Boren. This
      is another legacy of Reagan’s impact upon Democratic politics, the gift
      that keeps on giving.

    • cboldt says:

      when we pay close attention, there’s a lot to be learned.

      Paying attention is both time consuming, and intellectually difficult. It’s intellectually difficult because the Record contains statements by given senators that are, on the surface, mutually contradictory. It’s tough to figure out what the position IS. But I’ve found a key — albeit also intellectually difficult. The key is to read the proposed statutory language. What’s said from the floor obviously revolves around the bills and amendments, but what is said on the floor is apt to be misrepresentation.

      • selise says:

        shorter cboldt: “pay attention to everything and read everything”

        at least that’s how i translate cboldt. *g*

        agreed. but i’m on the very beginning of a steep learning curve. not sure i have the brain cells and know i don’t have the time to do it right. that’s why it’s so helpful, to me anyway, to do it as a group project. i learn more about what is actually going on, and i get help climbing the learning curve. many thanks to all.

        • cboldt says:

          shorter cboldt: “pay attention to everything and read everything”

          Hehehehh. Actually, it was meant to convey “pay more attention and give more weight to the statutory language”

          so reid won one? [on getting votes on FISA today]

          Reid said he’d ask for UC to conclude debate and vote on the four pending amendments. I predict the GOP will object to setting aside their time-wasting objection to cutting off debate on the motion to take up economic stimulus.

          The tit for tat of yesterday revolves around GOP objection to take up economic stimulus as formed by the DEMs (the GOP prefers to pass the House bill without amendment), and a GOP desire to delay Senate passage of FISA so as to shortchange time the House may have to fiddle with it.

          • selise says:

            reading the bills and amendments is the most difficult aspect of this for me… one reason i miss pow wow’s analysis, and am very grateful for yours. it’s one thing when it’s simple questions (like earlier iraq occupation funding and the details of various “time lines” that have been included, or not, in various proposals). the loop holes and details on something like fisa are not yet something i feel even a little bit competent to evaluate. one day i hope to have some clue, but that day is not today.

            there’s lots to learn when starting from ground zero on all this stuff. that’s what i meant about a steep learning curve. … in addition to seeing the fisa issue as being an important one, i’m also (trying) to use it as a learning exercise, the lessons of which i hope will eventually help me more generally understand what’s going on.

            also re voting on fisa today, i’d think that even if there was to be any voting today, it would have to wait until after today’s senate intelligence committee meeting.

            which reminds me, i have weekly hearings list that has been on vacation for too long.

      • tekel says:

        Jay’s stated reasons for speaking are suspect on their face: “to establish a legislative record.” So, instead of establishing a legislative record by, you know, actually debating the merits of the bill, he’s going to babble a bunch of bedwetting nonsense, and plant the seed for Scalia to take his words out-of-context to justify a ruling against the EFF?

        This is a hail-mary pass straight to the judiciary. I’m very interested to see if they’ll be catching what he’s pitching.

      • AZ Matt says:

        OK! So far there have been some creative, if you will, answers to Jay’s flavor, some more graphic than others. I guess I would say he is a greasy, dirty sulfur yellow flavored jello. Yellow cuz he is, and sulfur I associate with the devil and he is slippery to boot!

  8. cboldt says:

    His speech amounts to legal sanction for the government to abuse this program.

    That’s keeping in the spirit of retroactively gutting civil penalties.

    Congress and the President are working in harmony.

  9. Quebecois says:

    Great piece EW.

    I’d like to add my thanks to Selise for her hard work yesterday.

    As for Jello-Jay, it’s obvious Bill Cosby is trying to get rid of some overstock in his basement.

  10. CasualObserver says:

    This program is, Jello Jay reveals, designed to spy on Americans.

    For some time now, I believe a growing focus of counter-terrorism has not been al qaeda and other radical islamic systems per se–but on Americans. If one looks at the attacks in Europe (London, Madrid, Glasgow), these were carried out primarily by nationals of those countries. We here talk that these attacks are “inspired” by islamic radicalism.

    While the prose of our Government has tried to market these statutory changes as being focused overseas, the true target is here at home.

    The Church committee report as well as our own history back to the founding clearly shows that government–any government–simply can not be trusted with these sorts of powers.

    That a sitting US Senator would advocate practices that are so at odds with the our constitution (not to mention the lessons of history–as yet unlearned) is sufficient to demonstrate that he is unfit for office.

    • whitewidow says:

      So far most of the “terrorists” that have been tried have been created by the JTTF and FBI informants. The JTTF has the ability to see virtually every public space in the city of Chicago.

      Very disturbing article in Rolling Stone that makes me want to scream bloody murder.

      http://www.rollingstone.com/po….._factory/2

      sorry, linky thing does not want to work for me right now

  11. cboldt says:

    This is a hail-mary pass straight to the judiciary.

    Not unusual for Congress. Feingold’s view of how this action plays out is realistic. There isn’t a sufficient number of senators to completely block passage of the DNI’s FISA bill, but a legislative record is persuasive if a case makes it into court.

    I’m afraid he misses the reality that a case is apt to be rejected for want of standing, or dismissed as exposing a state secret.

    At any rate, Specter is another one who openly says (and advocates) punting issues to the courts for resolution.

  12. Tross says:

    I’d like to know why all of these Senators who are willing to give Bush (and future presidents) this kind of sweeping power to eavesdrop on Americans think that their communications are safe.

    Does Jello Jay really believe that Bush won’t be listening in on his phone, or Harry Reid’s, or Nancy Pelosi’s?

  13. selise says:

    holy cow!

    hayden, just testified that 3 detainees were tortured (waterboarded) by the cia – that’ the first time i’m aware of that it’s been officially admitted to. or did i miss an earlier admission?

  14. peterboy says:

    the guys last name is ROCKEFELLER. Don’t ever forget that and their heritage.
    Massive wealth from massive monopoly of oil. The slaughter of guards and prisoners at Attica.
    The family is defined by plutocracy, corporatism and murder.

  15. peterboy says:

    sheldon called it right: this is the stampede america act.
    OB and HRC are dead to me if they dont show up and vigorously oppose the egregious parts of this.
    the time their leadership is needed is now, not just in a year.

  16. selise says:

    while i’m gone, i recommend c-span3 and senate intelligence committee hearing to all. hayden now admitting to the use of contractors for torture (enhanced interrogations).

    • cboldt says:

      the use of contractors for torture

      So much for “protect the CIA” if the interrogation was carried out by contractors. Contractors are generally outside of all legal jurisdictions.

      • bmaz says:

        the use of contractors for torture

        So much for “protect the CIA” if the interrogation was carried out by contractors. Contractors are generally outside of all legal jurisdictions.

        Well, it wouldn’t matter anyway; we just just be stampeded with an immediate demand to give immunity to the torturers for their alleged help in protectin our freedums.

        • Jim Clausen says:

          Great to be fighting the battle here with you BMAZ. My Chinese Fortune Cookie said “Follow the Dreams of your Youth”. Thanks for your friendship.

        • phred says:

          cboldt and bmaz — I know we’ve gone over this before, but if you have the time and inclination, would you indulge me once more and enlighten me as to how exactly being a contractor places one outside of the law? That’s a pretty handy trick. Seems to me, we should all declare ourselves contractors. Then nobody is bound by the law, and we can dispense with the kibuki and send Congress home.

          • cboldt says:

            how exactly being a contractor places one outside of the law?

            One has to be a contractor out of country, and acting under direction of his employer. Also, the country that the act takes place in needs to have no SOFA with the employer.

            The contractor then is outside criminal law of the country the act took place in, and hasn’t committed a crime that a US prosecutor would go after, and is outside the reach of courts martial by the military.

            • phred says:

              Thanks cboldt. I still find it extraordinary that such loopholes even exist. Remind me what SOFA stands for?

              So, if I understand you correctly, a contractor who say commits murder as part of his job, cannot be prosecuted. However, if that contractor commits murder outside of his job, then presumably he could be prosecuted according to the laws of the country he is in. Correct?

              • bmaz says:

                SOFA=Status Of Forces Agreement. I Iraq, thanks to Jerry Bremer’s parting shot, Iraq has no jurisdiction over US people, of any kind; military personnel and contractors directly contracted to the military itself (as opposed generally to the State Department and other departments/agencies) are subject to prosecution under the UCMJ.

                • phred says:

                  Thanks bmaz. I am just appalled by this. What on earth is the point of being a sovereign nation if foreigners can come in at will and violate your laws, with no hope whatsoever of redress?

                  Thugs are running the planet.

  17. cboldt says:

    reading the bills and amendments is the most difficult aspect of this for me

    I think that’s the most difficult part for anybody. The statutes are convoluted, and in some cases have an “invisible” judicial patina in the form of past SCOTUS rulings.

    there’s lots to learn when starting from ground zero on all this stuff

    Yes, there is. But what I’ve been amazed at is the volume of supposedly learned analysis that fails to read the statutory language, and is therefore based entirely on inaccurate or false assumptions.

    Interrogation/torture was in that mold.

    I have the impression that the DEMs are willing to have the totality of economic stimulus interposed in the FISA debate.

    A few moments ago, Reid entered what I think is a “hot” quorum call.

    • selise says:

      But what I’ve been amazed at is the volume of supposedly learned analysis that fails to read the statutory language, and is therefore based entirely on inaccurate or false assumptions.

      hence the requirement to do our own analysis. or at least make the attempt to learn…

      ………….
      ssci – whitehouse now questioning hayden.

      now i really have to be off. damn, i’d like to watch this one.

  18. klynn says:

    So, his secret meeting with teleco think-tank lawyers helped to give Jay langugae to guide the courts…Thanks for working for the people Jay…

  19. Hmmm says:

    I read Jello Jay’s wording between-the-lines as confirmation of general Hoovering. He doesn’t want to have to delete stored hoovered communications from the database even when they’re the communications of US persons. Ties in with (Bond’s?) earlier “if I told you, I”d have to kill you” (as EW crystallized it).

  20. cboldt says:

    For those watching the Senate and wondering about the vote, I think the vote is on enforcing quorum. See Senate Rule VI for the procedure, which includes voting to ascertain quorum, as well as to request (eventually, if necessary, a separate vote to compel) attendance.

  21. Hmmm says:

    So Reid really is using Super Tuesday both as cover for the amendment votes, and to give the D candidates an out from being on the record as soft on fascism terrorism.

    Reprehensible.

    • CasualObserver says:

      Reprehensible, but consistent. In spite of his verbiage, Reid’s actions throughout this theatrical act clearly indicate that he favors immunity, and that 4th amendment issues are simply not important to him.

  22. cboldt says:

    So Reid really is using Super Tuesday both as cover for the amendment votes …

    If he is, it’s with great cooperation from the GOP.

  23. cboldt says:

    Reid’s actions throughout this theatrical act clearly indicate that he favors immunity

    I think they evidence lack of testicular fortitude, which is an independent inquiry from what he personally believes in. His prime directive is reelection.

    • CasualObserver says:

      I think they evidence lack of testicular fortitude, which is an independent inquiry from what he personally believes in. His prime directive is reelection.

      Yes. I wasn’t ascribing personal beliefs, but political calculation: Reid has literally confused weakness with strength–a la Greenwald argument (and many others I’m sure). How Reid and so many other dems arrived at that perspective is something I’d like to understand, but don’t.

      • BillE says:

        Who says they don’t understand. It just looks that way. When there was news about shaky land deals circling around Reid that was just a warning, don’t fuck with us or else you are so busted.

        Same with a lot of them, the campaign finance systems makes them all dirty.

  24. siri says:

    i just got here, taking out trash, 3+ feet of snow, no plows, yada
    so what are they voting on?
    is anybody in here?
    *echo here here here*

      • cboldt says:

        are you saying that’s what the floor vote is? They Republicans just refused to vote on FISA today?

        The roll call vote was to request attendance of senators, to cause the presence of a quorum. Reid can pull that action anytime he wants.

        Then, with the Senate “full,” he asked UC to vote on pending FISA amendments. McConnell says “No” on the grounds that the DEMs haven’t given assurances as to how the economic stimulus package will be presented to the Senate.

      • nomolos says:

        I got sucked into CPSAN3–are you saying that’s what the floor vote is? They Republicans just refused to vote on FISA today?

        Isn’t this goodnews in a way. The goopers are worried about losing the vote.

          • nomolos says:

            Probably not. They’re just trying to deprive the House of having an opportunity to improve the bill.

            It does seem as though they are on shaky ground with the issues that the Dems keep bringing up, retired persons and veterans, and the WH sees to be back tracking. It would be nice to see how mitch could/would fold his tent.

        • cboldt says:

          Isn’t this goodnews in a way. The goopers are worried about losing the vote.

          “Good” or “bad” depending on how the story resonates with the public. McConnell is counting on the public seeing DEM obstruction, when the facts are clear that the GOP is openly objecting to debating FISA (today) and voting on FISA (today).

          Not so obvious is that the very opportunity to object results from the GOP violated the spirit of a UC agreement entered into last week, that economic stimulus wouldn’t interrupt whatever was pending (FISA).

          • Hmmm says:

            Is the R team in your estimation violating the spirit of the UC agreement enough to give individuals on the D team cover to violate the letter of the UC agreement?

            • cboldt says:

              Is the R team in your estimation violating the spirit of the UC agreement enough to give individuals on the D team cover to violate the letter of the UC agreement?

              The agreement that was violated in spirit was to not immediately proceed to H.R.5140, upon adoption of the motion to proceed. The GOP was expected to automatically adopt the motion to proceed, once cloture to limit debate on that was passed. That would have HR 5140 “on deck” with neither side being able to stall taking it up once FISA was done.

              That agreement is (other than disrupting the order of business) unrelated to the time and vote agreements on FISA. Although I am getting VERY suspicious, because I have yet to see a cloture motion to limit debate on final passage of FISA.

              I think Reid is in on the action to limit House time on FISA.

              • Hmmm says:

                Thanks, cboldt. I guess I meant, could a D member, say Dodd or Whitehouse of Feingold, now split from the UC agreement and filibuster or withhold consent to prevent or delay either any of the FISA amendments or final passage of the bill itself?

                • cboldt says:

                  Thanks, cboldt. I guess I meant, could a D member, say Dodd or Whitehouse of Feingold, now split from the UC agreement and filibuster or withhold consent to prevent or delay either any of the FISA amendments or final passage of the bill itself?

                  No.

                  In fact, mysteriously to me, the UC agreement that held that the Senate would not permit adoption of a motion to proceed to HR5140 to displace any pending measures has been modified, and no longer has that phrase. This is a significant “erasure,” because it tends to put HR 5140 in the priority position — where before, FISA held that spot.

      • TLinGA says:

        McConnell and Reid are having a finger pointing contest right now, which does nothing but play into the Republican delay. And McConnell knows it is being watched. He basically said “you unwashed masses don’t understand our parliamentary processes, but know that we are working on it”. What a dog and pony show.

        • cboldt says:

          He basically said “you unwashed masses don’t understand our parliamentary processes, but know that we are working on it”.

          He’s right that the general public doesn’t understand, but more and more people are educating themselves and getting wise to the crap from both sides.

  25. TLinGA says:

    McConnell – “Ironically, I share the same goals as the Majority Leader…” Ironic, yes, but not in the way that you implied.

  26. Kinmo says:

    Jello Jay thinks we should start talking about terra more often in the media and on the streets. He doesn’t think the American people are paying enough attention. Whaaa?

    • emptywheel says:

      Well, obviously we’re not fearful enough. I mean, if a DFH blogger can criticize Jello Jay for trying to legalize spying on Americans, then Americans must not be sufficiently fearful.

  27. Kinmo says:

    Shorter John Warner: Those telecom guys are good patriots, and we should give them blow jobs whenever possible. *cough*

  28. behindthefall says:

    Who is the parliamentary go-to person on the Republican side who sees the loopholes in language for them to exploit? One very astute (though warped) person, or just a generally higher level of procedural expertise on the R side of the aisle?

    • emptywheel says:

      McConnell is one of them. He’s an order of magnitude smarter on parliamentary procedure than Frist was; I continue to believe that we were better off in the minority with Frist at the helm than in a majority, held hostage by Joementum, with McConnell in charge of the Republicans.

      • CasualObserver says:

        Boy Howdy. One gets the sense that McConnell can run rings around the Dems, procedurally, whenever he wants/needs too.

    • cboldt says:

      or just a generally higher level of procedural expertise on the R side of the aisle?

      I don’t see much difference between the parties when it comes to opportunism and misrepresentation of the parliamentary rules.

  29. cboldt says:

    The focus on cloture motions and advancing the economic stimulus package, in combination with an ABSENCE of a PLANNED cloture motion to conclude debate on FISA and move it to final passage, indicates to me that both parties are in on a plan to delay passage of FISA, so as to limit the amount of time the House has to debate it. Passage of FISA can be pushed out to next week, easily. It should have passed Wednesday night or Thursday morning – Friday at the latest, if Dodd decided to stick a 30 hour delay in at the tail end.

  30. Hmmm says:

    PAA extension coverage only runs through Feb 16 (a week from Saturday) if I recall correctly, but if it could be extended once then it could be extended again.

    • TLinGA says:

      That’s just a matter of the math there. Notice that through 2007 there are very few data points, but going into this year there are lots more. If those graphs also included the range of mathematical certainty, the lines would be extremely wide through last year (possibly even overlapping) but would be much narrower into 2008. Even so, there are some serious outliers in the last two days.

      In other words, don’t trust the polls.

      • cboldt says:

        In other words, don’t trust the polls.

        Polls have several useful functions. They can mold opinion, they can influence (but not necessarily determine) outcome, and they can validate outcome (even when the outcome is the result of cheating).

        Polls can also be used to provide a pacifying effect on the public.

        • TLinGA says:

          Polls have several useful functions.

          I don’t disagree with that. As you pointed out, it is nearly impossible to view polling results and not have it impact one’s own view of the subject of the poll.

          My point is that the predictive capability of polls should be viewed with skepticism.

  31. cboldt says:

    My “no” above is only that a senator can’t unilaterally split from a UC. The GOP adhered to the letter of the UC that described how a motion to proceed to HR 5140 was to interact with pending action. But the UC didn’t describe how an UNAGREED motion to proceed to to HR 5140 would interact with pending business.

  32. cboldt says:

    Where’s the cloture motion to limit debate on final passage of FISA? The cloture motion that’s mentioned in the FISA UC agreement:

    That upon disposition of all amendments, the substitute amendment, as amended, be agreed to, the bill be read a third time, and the Senate then vote on the motion to invoke cloture on the bill; provided, that upon passage of the bill …

    • bobschacht says:

      OT, but only slightly – Charges under the MCA levelled at a 15 year old, and the attorneys are splitting hairs over the language of the Act:

      U.S. says no one too young for Guantanamo court

      Babies! Babies are dangerous! We must protect America from babies! Who knows what they’re saying when they talk to each other! Danger! Danger! You can never trust a baby! {/snark}

      Good grief.

      Bob in HI

    • cboldt says:

      Charges under the MCA levelled at a 15 year old

      The Khadr case has many interesting legal twists. He also argues that he was fighting in a firefight, i.e., he was “soldiering,” and therefore is not an “unlawful enemy combatant.”

      Some time ago there was a suggestion that no witness saw him hurl the grenade that killed a US serviceman; or that the witness that so testified was biased and the identity and bias of the witness had been withheld from the defense.

      Tough legal issues to be sure, but I would be slow to give a 15 year old an automatic pass or automatic leniencey, just based on age.

      • skdadl says:

        U.S. document throws doubt on Khadr’s guilt

        U.S. NAVAL BASE GUANTANAMO, Cuba – A secret document accidentally released by the U.S. military Monday raises questions about whether someone other than Canadian terror suspect Omar Khadr could have thrown a grenade that killed a U.S. soldier during a 2002 firefight in Afghanistan.

        Comprising a U.S. investigator’s report of his interview with the operative who wounded Khadr, the document reveals a second alleged al-Qaida fighter was both alive and still fighting about the time the grenade was thrown.

        The operative also testified Khadr had his back facing him when he hit the Canadian with two bullets. This could be significant because, the document additionally reveals, the U.S. soldier killed in the grenade attack had been behind the U.S. operative.

        However, the document concludes that while the operative did not see Khadr throw the grenade, he believes the Canadian did it.

        This just came out here yesterday. Many Canadians are watching. However, to our shame, the Canadian government is the only Western government that has not fought to repatriate its own citizens from Guantanamo.

        • skdadl says:

          PS: Khadr is the only Canadian at Guantanamo. There is considerable evidence that he has been tortured, at least as I understand torture (ie: according to the international treaties we have signed, which are Canadian law).

      • TLinGA says:

        Tough legal issues to be sure, but I would be slow to give a 15 year old an automatic pass or automatic leniencey, just based on age.

        True, but there is also the human element, namely, the mental and emotional maturity of the person. Interrogation is intended to break the will and endurance of the most hardened and indoctrinated prisoner…what is that going to do to a teenager, or worse, a child? There are reasons that the US has a separate juvenile court system. Are we going to earn any points with human rights organizations and the court of public opinion by treating children the same as terrorists? If anything, that will increase opposition to us.

        I am seriously disgusted by this.

        • TLinGA says:

          And to cover their “ethics”, the gov’t trotted out a video captured last week that shows children in Al Qaida. Imagine that. Some of those kids could hardly walk when we began the occupation.

  33. cboldt says:

    it is nearly impossible to view polling results and not have it impact one’s own view of the subject of the poll

    Check poll questions and compare them with new reports that “interpret” the poll results. That people are influenced by the reporting is evidence of public stupidity.

    • cboldt says:

      That people are influenced by the reporting is evidence of public stupidity.

      Harsher than I meant it to be. Substitute “ignorance” for “stupidity,” and I mean “ignorance” in a friendly way – people are capable of seeing the divergence between poll and reporting, they just lack time or inclination to find it.

  34. JohnLopresti says:

    ThinkProgress describes today how your corporation’s network, too, can have a signal splitter in the router cabinet, one port for government datamining; h/t tpmm newswire today. Maybe for offices that use IP telephones instead of private branch exchange, or maybe for garden variety bots of all stripe. TProgr today posts a retrospective of the 911Commission’s recommended creation of a privacy oversight board; ThinkProg writes only one Democrat was named to the commission, then quit over report suppression and redaction in 2007; however, TP proceeds, last week the terms of all remaining members of the privacy oversight board, all four Republicans, ended without Bush nominating replacements.

    • cboldt says:

      Senate may be creaking towards action.

      No votes today. Reid will file a cloture motion to limit debate on HR 5140.

      But will he file a cloture motion to limit debate on FISA?

        • cboldt says:

          Maybe they’re waiting to see the Primary outcomes?

          The absence of a cloture motion on FISA doesn’t impact Clinton and Obama, unless they intend to not be in the Senate on Thursday.

          I expected to see a cloture motion on FISA filed yesterday. That would have set up a Wednesday cloture vote on final passage of FISA. That would have also given Dodd and Feingold room to insist on 30 hours of post cloture debate (face saving) and still have final FISA passage this week.

          Right now, I don’t see FISA passing until next week. I think Reid is helping the GOP jam this down the House.

          • phred says:

            I think Reid is helping the GOP jam this down the House.

            With Nancy’s full approval of course. They have to make a good show of things after all, so they can tell their constituents that they did everything they could… if only they had the votes.

            So, just to get things out of the way, I’m calling bullshit right now.

            • Jim Clausen says:

              Me too! The Senate has kabuki’d the House Bill to set this rush to legislate that has been the Hallmark of Cheneyism…Pass it or Die as opposed to Harry “we don’t have the votes” Reid. Called this weeks ago except figured the conference committee from the House would fold to the Senate Intelligence version. BULLSHIT! (Thanks I feel better)

            • cboldt says:

              Anyone here had a look at the letter yet?

              I haven’t. You’re right, there may be some new objection in there.

      • bobschacht says:

        No votes today. Reid will file a cloture motion to limit debate on HR 5140.

        But will he file a cloture motion to limit debate on FISA?

        Does this mean that Obama & Clinton can come back and vote?

        Bob in HI

        • cboldt says:

          Does this mean that Obama & Clinton can come back and vote?

          I’m exploring the timing of the vote on final passage of FISA so it can be sent to the House. The cloture motion to limit debate on final passage is part of that exploration. The timing of the final passage vote is at least two days out, and if cloture runs its usual course, final passage couldn’t happen before Friday.

          • cboldt says:

            The timing of the final passage vote is at least two days out, and if cloture runs its usual course, final passage couldn’t happen before Friday.

            That timeline depends on a cloture motion on final passage of FISA being filed today. I expected that cloture motion to have been filed yesterday. Each day that motion isn’t filed is a POTENTIAL (not inevitable) one day delay in sending FISA to the House.

  35. nolo says:

    per selise’s fine headz-up @ 34, the names of those tortured
    are now in the MSM stories:

    “. . .The CIA director said the harsh interrogation technique known as waterboarding was used on three top al Qaeda suspects: Khalid Sheik Mohammed — the purported mastermind of the 9/11 attacks — and Abu Zubayda and Abd al-Rahim al-Nashiri.. . . .”

    no surprises there. but significant — the
    quote is from a WSJ story just out. . .

  36. Mary says:

    96-99-100

    As I understand the Khadr case, he was taken to Afghanistan by his father, who had ties to either the Taliban, al-Qaeda or both (I knew once what the reports said, but I’ve forgotten now – there is a pretty detailed Rolling Stones article on Khadr).

    There was a firefight – some lack of clarity over how it started, but there was definitely a firefight and the US ground forces ended up calling in air support and it was after the building/home that Khadr and others were in, in Afghanistan, received hits from airstrikes that the US forces began to go into the building and a grenade was thrown out at them, killing a US soldier/medic.

    Under the scenario of the grenade being tossed after a firefight and an air assault, which seems to be in every report, I think it is very difficult to say that whoever threw the grenade committed a “war crime” for the killing of the US soldier. The military theory is that they had no business being there in Afghanistan and fighting out of uniform, although they were living in the building and seem to fall under the Geneva Conventions rules as to residents who take up arms in defense against an invasion. So the theory seems to be that fighting back – even openly and obviously and even after an air assault – is still a war crime IF you started into the firefight as a non-uniformed “unlawful enemy combatant.” Which seems to pretty much cut against the covert saboteur – blending into civilian population – reasons/rationales for the concept of unlawful combatants. I’m not sure I follow how anything you do after an airstrike has been called could be unlawful combat, but I do know it was a horrible thing for the US soldiers to lose their medic – I think he was very young as well.

    IIRC, Khadr’s Canadian family has wealth and the medic’s family has already sued and obtained a judgment – although how that happened with Khadr at GITMO I’m not sure and I may be misremembering that.

    Colby Vokey had been the JAG officer representing Khadr and Vokey’s story vis a vis GITMO is something in and of itself. He and Swift and Mora are what the DOJ lawyers and Haynes failed to be. Failed, with lots of fs.

    More OT – I saw a headline that Michaels entered a laundering plea in the Cunningham case.

    The Dems are selling out on FISA just like they have and will continue to on torture and neither Dem Presidential candidate will change anything except that they may act with better personal behaviour, purely on a voluntary basis though.

    Hayden saying only 3 have been waterboarded — Hayden has just confessed to specific war crimes and no one will do anyting about it. Period. It’s flaunting that Bush and his minions can be criminals and get by with it. Also, notice that no one is mentioning the deaths – the man frozen to death. The Iraqi Gen that CIA reportedly “helped out” with prior his sleeping bag killing. The people who have just flat disappeared (anyone think they’ll be cross examining al-Libi as to how his testimony on the Iraqi training camps was obtained or questioning KSM’s children or wife who have disappeared?).

    No one is asking questions about who ok’d having Zubaydah buried alive and what stopped that plan after the legal authorizations were given by the OVP/Oval O. No one is asking why anyone should believe anything Hayden says, as often as he has stood in his uniform, including in his testimony before Congress, and fibbed and parsed away.

  37. cboldt says:

    From the AP article, it looks at though the veto threat in the letter is limited to amendments associated with the Title II (immunity) provisions. Those are all destined to fail anyway, at least in the Senate.

    • Hmmm says:

      From the AP article, it looks at though the veto threat in the letter is limited to amendments associated with the Title II (immunity) provisions. Those are all destined to fail anyway, at least in the Senate.

      Can’t help thinking that if the retroactive immunity amendments truly were destined to fall away, no 12-page letter from Mukasey and Mike McConnell would have been necessary at this stage. Maybe they’re in more trouble behind the scenes than we’re able to see from here.

      • emptywheel says:

        Might be they’re in trouble on DiFi’s compromise.

        They’re going to debate three amendments. Starting with these two Feingold amendments.

        * Prohibiting “Bulk Collection”

        Senator Feingold successfully offered this amendment in the Senate Judiciary Committee to prohibit “bulk collection” — the collection of all international communications between the U.S and a whole continent, or even the entire world. Such collection without a foreign intelligence purpose would be constitutionally suspect and would go well beyond what the government has says it needs to protect the American people. Yet, the Director of National Intelligence testified at a Senate Judiciary Committee hearing that the Protect America Act – which was enacted last year — permits “bulk collection.” The amendment prevents such massive dragnets by requiring the government to certify that it is collecting the communications of foreign targets from whom it expects to obtain foreign intelligence information.

        * Prohibiting “Reverse Targeting”

        Senator Feingold successfully offered this amendment in the Judiciary Committee to add a meaningful prohibition on “reverse targeting,” a practice by which the government gets around FISA’s court order requirement by wiretapping an individual overseas when it is really interested in a person in the U.S. with whom that supposed foreign target is communicating. The Director of National Intelligence has agreed that “reverse targeting” is unconstitutional. Senator Feingold’s amendment requires the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S.

      • ImaPT says:

        I’m wondering the same thing. Starting with McConnell’s sudden declaration yesterday that they wanted to start working on the economic stimulus package. I was left wondering if maybe they were losing some votes and McConnell needed some time to whip them back into line.

        I called a lot of Republican Senators on the call list today. Only one of them (Snowe, I believe) had a statement where she actually said that she supported immunity. None of the others was willing to state a position on immunity.

  38. Mary says:

    This is equally OT here and under the new thread, but since this thread went into Khadr, I’ll put it here:

    http://www.nytimes.com/2008/02…..ref=slogin

    Time Runs Out for Afghan Held by the U.S. [at GITMO]

    Story by Carlotta Gall and Andy Worthington about one of the many sad situations at GITMO. Now one that is, with a man dead, irreparable. God bles John Yoo, Jack Goldsmith, ”Jim” Haynes and the whole cabal who have fought to make sure this man died at GITMO.

    Abdul Razzaq Hekmati resisted both the Russians and the Taliban and was relatively famous in Afghanistan for helping to organize a jailbreak from Taliban jails before the US invasion.

    But in 2003, Mr. Hekmati was arrested by American forces in southern Afghanistan when, senior Afghan officials here contend, he was falsely accused by his enemies of being a Taliban commander himself.

    The fate of Mr. Hekmati, the first detainee to die of natural causes at Guantánamo, who fruitlessly recounted his story several times to American officials, demonstrates the enduring problems of the tribunals at Guantánamo, say Afghan officials and others who knew him.

    Every time you get excited over someone’s self-congratulatory speech about standing up for law – remember the people whose minds, souls and lives have left them directly because of those people and their cruel and depraved policies.

    And a big God Bless, in the way that only a deity will know how to bless, to Carl Levin as well, who co-sponsored habeas suspension for GITMO in the DTA and who greased the skids for the MCA.

    Hekmati never had a lawyer. Hekmati asked for witnesses on his behalf – they were never produced. How hard were they to find? Well, not only not hard to find, but also trying on their own behalf to get him released.

    Two of those officials were men Mr. Hekmati had helped escape from the Taliban’s top security prison in Kandahar in 1999: Ismail Khan, now the minister of energy; and Hajji Zaher, a general in the Border Guards. Both men said they appealed to American officials about Mr. Hekmati’s case, but to no effect.

    “What he did was very important for all Afghan people who were against the Taliban,” Hajji Zaher said of Mr. Hekmati’s role in organizing his prison break.

    Hajji Zaher, whose father served as vice president under Mr. Karzai for six months, warned that the case of Mr. Hekmati, who is widely known here by his nickname, Baraso, would discourage Afghans from backing the government against the Taliban. “No one is going to help the government,” he said.

  39. cboldt says:

    Remind me what SOFA stands for?

    Status of Forces Agreement. The US has those with Germany, South Korea, Japan, and other countries where we have military bases. Usually it removes US personnel from the jurisdiction of the host country, on a promise that we’ll deal justice to the offender.

    … a contractor who say commits murder as part of his job, cannot be prosecuted … if that contractor commits murder outside of his job, then presumably he could be prosecuted according to the laws of the country he is in

    I’d have to look up the details. The gaps in jurisdiction are (or used to be) generally accepted because they are small — not many people in that class of “uncovered,” and there were few criminal acts, etc. But now there is a massive number of “uncovered” people. The US has more contractors in Iraq than it has military.

  40. Hmmm says:

    Harry trying to get UC to return to FISA… Mitch responding on debating 3 amendments… cboldt, can you help interpret please?

  41. cboldt says:

    McConnell agreed to let the Senate debate a few FISA amendments, following the terms of last week’s UC agreement. No votes, jut bring the amendments to the floor. Also, the time for debating these will concurrently run the post-cloture clock on moving to proceed to HR 5140.

    I still see a risk in the absence of a cloture motion to limit debate on final passage of S,2248.

  42. cboldt says:

    The three amendments are Feingold/Dodd “Strike Title II” (#3907) and two Feingold amendments (#3912 and #3913) that deal with the phrase “significant purpose.”

    A grand total of 2 hours and 80 minutes (3 hours and 20 minutes) of debate are allocated to these three amendments.

      • cboldt says:

        I think it’s not clear whether they’re going to present Immunity though, at least as far as the staffers are concerned.

        The full substantive text of Feingold/Dodd’s Amendment No. 3907 is “Strike Title II.” #3907 is one of the three amendments specifically named in the UC agreement that Reid propounded and McConnell accepted.

        • emptywheel says:

          I understand that. But the staffers of the Senators say they “may” present it today. I’m looking for clarification what that means now, but there is some resistance to presenting it today.

          • cboldt says:

            But the staffers of the Senators say they “may” present it today. I’m looking for clarification what that means now, but there is some resistance to presenting it today.

            There was express resistance to presenting it today, with the expression coming from McConnell. Were the staffers aware that McConnell had switched his position?

            Senator Feingold introduced 3912 and 3913, then yielded the floor, so he may be waiting for a bigger audience before delivering his opening on “Strip Title II.”

  43. jackie says:

    Do we know what/who the ‘new system of intelligence collection’ is?

    ‘Senator Feingold’s amendment potentially limits the use of all information gathered through a new system of intelligence collection.’

  44. cboldt says:

    But the staffers of the Senators say they “may” present it today. I’m looking for clarification what that means now, but there is some resistance to presenting it today.

    Ahh, okay. Dodd and/or Feingold are resisting presentation today. Well, it’s their call. Before, GOP objection stood in the way. Now they have the right to bring it up if they want.

  45. Mary says:

    phred – to carry forward with the problem that thorough investigations and resolution of any of these issues really do, far too often, dip their toes in the Clinton Years Waters, here is a Salon article on contractors in Bosnia:

    http://dir.salon.com/story/new…..index.html

    titled “Outside the Law”

    Pending lawsuits allege that U.S. military contractors on duty in Bosnia bought and “owned” young women. But the accused men have never been — and will never be — brought to justice.

    • phred says:

      Thanks Mary. I really really appreciate your comments on these topics. The degree of criminal conduct underway is simply staggering…

    • phred says:

      The degree of criminal conduct underway is simply staggering…

      Hades is there for a purpose.

      Our current crop of criminals can’t get there soon enough ; )

Comments are closed.