FISA: On to the House

Sorry I missed all the misery on FISA votes today. Though I can’t say I’m sorry to have missed the Senate committing collective hari kari again.

Which, of course, sends FISA back to the House. The Blue Dogs are no doubt ready to bend over for Bush. Again. But John Conyers isn’t going to go quietly. He sent Fred Fielding a long "to do" list, some of it relating to requests going

First, please provide access to all Members of the House Judiciary Committee those briefings and materials you have made available to 19 Members as of now. Currently, it is my understanding that the entire membership of the House Permanent Select Committee on Intelligence and the Senate Committee on the Judiciary and the Senate Select Committee on Intelligence has been permitted to be “read in” to the TSP program. The only Committee of jurisdiction that has not been offered the same access is the House Judiciary Committee. This is unacceptable and serves little purpose but to impede our Members review of the program and understanding of your request for retroactive amnesty.

Second, please provide the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States. It is believed that this Memorandum is dated either October 17, 2001, or October 23, 2001. Based on the title of this document, and based on the contents of similar memoranda issued at roughly the same time, it appears that a substantial portion of this Memorandum provides a legal determination and analysis as to the nature and scope of the Presidential war powers to accomplish specific acts within the United States. Congress is entitled to know the executive branch’s interpretation of its constitutional powers.

Third, please provide copies of filings, correspondence or transcripts of colloquies with the Foreign Intelligence Surveillance Court about TSP or other warrantless or other electronic surveillance programs, containing legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment to the Constitution, the Authorization for the Use of Military Force enacted on September 18, 2001, or the President’s authority under Article II of the Constitution.

In addition, as per our September 11, 2007, letter, we reiterate our requests for the following documents:

1. All documents from September 11, 2001, to the present, including e-mail, that reflect, discuss, or describe agreements or understandings between the White House, the Department of Justice, the National Security Agency, or any other entity of the Executive Branch and telecommunications companies, internet service providers, equipment manufacturers, or data processors regarding criminal or civil liability for assisting with or participating in warrantless electronic surveillance program(s).

2. An unredacted copy of the notes or program log of FBI Director Mueller provided to the House Judiciary Committee on August 14, 2007, concerning the March 2004 hospital visit to former Attorney General John Ashcroft and other events that former Deputy Attorney General James Comey described in his May 15, 2007, testimony before the Senate Judiciary Committee.

3. All documents from December 1, 2005, to the present related to the investigation by the Department of Justice’s Office of Professional Responsibility (OPR) into the role of Department of Justice attorneys in the authorization and oversight of the warrantless electronic surveillance program, which was opened on January 11, 2006, and closed approximately three months later after OPR investigators were denied the necessary security clearances (OPR Investigation) that reflect, discuss, or describe the following:

a) consideration of the request for security clearances;

b) communications between White House personnel, including the President or the Vice President, and Department of Justice personnel about the OPR investigation or consideration of the request for security clearances; and

c) the reasons for suspending that investigation (since revived by the Attorney General).

4. Since September 11, 2001, all audits, reports, or evaluations of or concerning any warrantless surveillance program(s), whether conducted by government employees or private companies, including any reports as to the effectiveness of minimization standards to protect U.S. persons’ communications.

I would also again ask that you ensure that the appropriate entity in the Administration immediately provide written responses to the following questions, which we have previously submitted last year:

1. Since September 11, 2001, has the Administration conducted any warrantless surveillance in the United States, other than through the warrantless electronic surveillance program the President acknowledged in late 2005 (known now as the Terrorist Surveillance Program), or as explicitly authorized by FISA, or any other warrantless surveillance techniques such as physical searches of home or offices or opening of mail? Are such activities continuing? Is the Administration currently conducting any foreign intelligence surveillance in the United States, other than that explicitly authorized by the Foreign Intelligence Surveillance Act (FISA)?

2. How many actionable leads have been referred to operational entities as a result of acquisitions of U.S. persons’ conversations or communications?

a) Please break down the response as follows: 1) between September 11, 2001, and October 25, 2001; 2) between October 25, 2001, and January 10, 2007; 3) between January 10, 2007, and August 5, 2007; and 4) since August 5, 2007.

b) Of the actionable leads referred to operational entities, what have been the results? Please differentiate between counter-terrorism, criminal investigations and prosecutions, counter-espionage, and in-theater combat operations. Please indicate with specificity whether any attacks have been averted.

3. How many conversations or communications (both incoming or outgoing) monitored under the programs have revealed a contact between a U.S. person and someone for whom there was probable cause to believe they were in or supporting al Qaeda? How many people in the U.S. have had email communications with someone considered to be in al Qaeda? How many of these conversations or communications have actually involved terrorist activity, as opposed to other topics of conversation? How many people have been charged with any wrongdoing as a result of such interceptions? How many terrorist activities have been disrupted as a result of such interceptions? How many people have been subjected to surveillance but not charged with any crime or otherwise detained?

4. How many persons whose conversations or communications were monitored under the programs have been subjected to any other surveillance techniques or searches, such as physical searches of home or offices, opening of mail, etc, whether subject to a warrant or not?

5. Have any U.S. persons whose conversations or communications were monitored under the programs been detained within the United States? Have any U.S. or foreign persons been interrogated or detained outside of the United States, whether by the United States or any other government, in significant part as a result of such monitoring?

6. Have journalists, lawyers, lawmakers (whether federal, state, or local), or aides had their conversations or communications monitored under the programs? If so, how many?

7. How many U.S. persons had conversations (voice or email content) or communications (call or email data) acquired through electronic surveillance programs? In how many of these acquisitions was the U.S. person the target of the acquisition? In how many of these acquisitions was the acquisition incidental? How many warrants for continued surveillance were sought after identification of someone as a U.S. person? How many such applications were denied? Please break down the response between warrantless and other electronic surveillance programs as to the following periods:

a) between September 11, 2001, and October 25, 2001;
b) between October 25, 2001, and January 10, 2007;
c) between January 10, 2007, and August 5, 2007; and
d) since August 5, 2007.

8. How many individuals have been targeted for surveillance under the Protect America Act that involved foreign intelligence generally, as opposed to terrorism or nuclear proliferation?

9. Please identify any telecommunication companies or internet service providers that refused to allow access to communication streams without Court sanction or questioned the terms of the requests or demands which were being made of them and, to the extent that discussions with such companies were conducted orally rather than through written dialogue, please authorize the relevant parties to discuss the content of those discussions with Committee staff and Members. [my emphasis]

Now, Fred Fielding isn’t exactly one for "to do" lists. So I’m not holding my breath for this. But I do wonder whether a coalition of HJC Democrats, Progressives, and folks like Dingell and Stupak can withstand Bush’s harangues any better than the Senate.

47 replies
    • BayStateLibrul says:

      He’s calling their bluff… (good)
      Fielding & Company will give ‘em the finger (bad)… and we’ll be back to
      square onezee… (status quo)
      It’s a poker game with Bushie holding four jokers

  1. ticktock says:


    My naturally optimistic disposition has been severely tested recently….

    Considering our batting average maybe we should be cooking up another strategy…

  2. PetePierce says:

    I know Cboldt has predicted the House caving to the Senate–is this based on his counting votes over in the House? The Blue Dogs becoming part of the Jello Coalition?

  3. PetePierce says:

    Cboldt on last thread predicting

    Impasse between House and Senate, or Senate capitulates.

    Or, the outcome that I think is most likely, the House adopts the Senate bill after allowing the objectors to voice their objections.

    Does anyone off the top of their head remember what the dynamics of the vote was in the House on the House RESTORE act? Here it is:

    The House passed H.R. 3773 by a vote of 227-189.

    Final Vote for HR. 3373 House RESTORE ActHouse Judiciary passed it 20-14.

  4. Hmmm says:

    Huh. C-SPAN 3 currently rebroadcasting Mukasey from last week. Gotta think this is editorial and a reaction to today’s Senate FISA votes.

  5. RevDeb says:

    Senate passes spy bill and phone immunity
    Published: Today, 7:12 PM

    WASHINGTON (Reuters) – Phone companies that took part in President George W. Bush’s warrantless domestic spying program would receive retroactive immunity from lawsuits under a bill passed overwhelmingly on Tuesday by the Democratic-led Senate.

    Kinda says it all huh?

    • skdadl says:

      Kinda says it all huh?

      I hope it doesn’t say it all, but it is certainly pretty galling. As we say in baseball, though, it ain’t over till it’s over. And then there’s opera …

      A question: how much of the Fourth Amendment would be left if they get immunity? Doesn’t law work a fair bit by analogy? That is, if it becomes legal for some authority to read your emails and listen to your phone calls without a warrant, then doesn’t it become easier for him to argue that he should be able to walk into your home at any time?

  6. behindthefall says:

    OT, on the cable cuts: AP reported last Friday that an abandoned 5.5 ton anchor was found near the break “in the Persian Gulf, 35 miles north of Dubai, between the Emirates and Oman”. snark Oh. That explains it. The cable was drifting around and snagged, or the anchor was out for a walk, or some ship sensed that its anchor had encountered a cable as thick as your thumb and cut the anchor loose — those blowtorches are so handy to have around when you have to slice through an anchor chain. Oh; wait: did they find any chain attached to the anchor? Here I had been thinking that “anchor cuts cable” would be remarkably easy to fake — just leave a groove in the sand; I think too small: leave a whole anchor lying there. /snark

      • behindthefall says:

        It appears, from what Google has coughed up, that a 5.5 ton anchor would be used for something one sixth the size of the USS Th. Roosevelt aircraft carrier and eleven times the size of a 130′ research vessel. Not something you just have lying around the deck on a rope or lose without really trying, I would think.

  7. JohnLopresti says:

    I think Conyers was the designated hitter in this strategy; his comments showed he was cognizant of the opportunity it represents for the more volatile House to make a statement that is reflective of current sentiment in the populace, as compared to the Senate. The Senate is notoriously in favor of the measured response which is friendly to longterm supporters.

  8. DickDurata says:

    “But I do wonder whether a coalition of HJC Democrats, Progressives, and folks like Dingell and Stupak can withstand Bush’s harangues any better than the Senate.”


  9. phred says:

    I almost hate to ask this, but I am curious… With only 29 Dems voting against this travesty of a bill, did all of our phone calls, faxes, emails, and letters manage to flip even one vote to our side since the PAA vote in August?

      • rosalind says:

        as a long suffering constituent of difi, i cynically suspect her vote was rooted in hurt feelings at her bi-partisany amendment going down to defeat.

        it’s all about comity for our lady di.

        • emptywheel says:

          With this bill, you gotta take the bright spots where you find them. And frankly, we ought to be emphasizing that so many other Democrats believe the laws are optional. Furthermore, I suspect DiFi made this vote to exert some pressure to get exclusivity included in the final bill. In which case, we ought to support her on it–because the exclusivity provision is 1) one of the three things (minimization is another) that would provide some kind of check on this and 2) potentially a poison pill and certainly a law we can hold Bush to–without it, he can continue to break the law at will.

  10. selise says:

    marcy – in your list of house dems that may be willing to fight, please don’t forget rush holt – who, as far as i can tell has been a real hero on this issue.

      • selise says:

        i don’t know, but he’s not on the list. although i could swear one time i was talking with his chief of staff it sounded like he was.

        in any event, imo, he deserves special recognition for all he has done in 2007 on this issue. ‘course the house leadership may be holding a grudge against him for it (i hope not!).

  11. selise says:

    one other thing we have going for us, is that i think the house procedures are MUCH easier to understand than in the senate. that means if we pay close attention, it will be harder for the house leadership to pull the wool over our eyes (as they tried to do in august).

    maybe there is a chance they will recognize up front that their kabuki ain’t going to cut it with us.

  12. selise says:

    fyi – important update from pow wow. check out the house rules committee website:

    H.R. 5349 – To extend the Protect America Act of 2007 for 21 days
    Meeting Time: 7:15pm Tuesday 2/12

    note – this was not on the website when i checked, just a few hours ago.

    more from pow wow:

    The bill is hand-signed by John Conyers, Jr., Chair of the Judiciary Committee, on a document printed out at 4:26 p.m. ET, today, 2/12/08.

    The 21 House Democrats who are ignorant of, or simply don’t believe in our Constitution (including, no doubt, its Second Amendment), and who have therefore obediently signed a letter for Mitch McConnell to do as he orders on FISA, do not control the levers of power on FISA in the House. That power resides with the Speaker, if she chooses to use it.

    This is a positive sign that Nancy Pelosi just might be starting to feel that it’s about time she started to try to make amends for “impeachment is off the table.”

    the meeting is now over and here is the rule they approved:

    Resolved, That upon the adoption of this resolution it shall be in order to consider in the House the bill (H.R. 5349) to extend the Protect America Act of 2007 for 21 days. All points of order against consideration of the bill are waived except those arising under clause 9 or 10 of rule XXI. The bill shall be considered as read. All points of order against provisions of the bill are waived. The previous question shall be considered as ordered on the bill to final passage without intervening motion except: (1) one hour of debate, with 40 minutes equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary and 20 minutes equally divided and controlled by the chairman and ranking minority member of the Permanent Select Committee on Intelligence; and (2) one motion to recommit.

    Sec. 2. During consideration of H.R. 5349 pursuant to this resolution, notwithstanding the operation of the previous question, the Chair may postpone further consideration of the bill to such time as may be designated by the Speaker.

    checking the daily leader (from whip hoyer), we can see that FISA is on the schedule for the House tomorrow.

    • sojourner says:

      I read through it, and even though I am not a congress critter or attorney, it seems to me that Mr Conyers may be telling Mr. Fielding exactly what has to happen if he even expects for there to be a vote on the PAA. After all the disheartening action today in the Senate, this sounds like a ray of hope — that maybe someone is ready to go for broke.

      I PRAY that is what this means…

    • RevDeb says:

      Got the hug part, need translation of what the House rule to proceed on FISA is. I just started to understand Senate speak and now we have a new language.

    • selise says:

      lol. i think she was asking about my comment above that one.

      i don’t know how to translate it yet. but here’s my guess – conyers is trying to buy more time for the house’s consideration of the senate FISA bill.

      or… he’s trying to convince us that’s what he’s doing.

      no way to tell yet what’s up. but i’ll be watching events on the house floor tommorrow.

    • RevDeb says:

      Oh, and the mug, Christy thought it was cool too. I thought that our congresscritters each need their own. Joe Sestak is throwing an event on anti-violence next week that I’ve been invited to and I plan to bring him his very own.

    • PetePierce says:

      Not having any, but sometimes when I open a couple EW or FDL windows simultaneously, it seems to gobble disproportionate resources and moving around the FDL/EW sites is a little slow. I don’t have a good explanation for why this happens–and I ususally defrag, bounce spyware, yadayada for “browser hygeine” but it doesn’t impact this.

  13. JTMinIA says:

    My browser shut down twice when trying to post on FDL a minute ago.

    I suppose, with immunity, viruses are legal now, too.

    Now where’d I put my tin hat?

  14. JohnLopresti says:

    reDiF, She has been a staunch supporter of the military; counted on her presence at the airshow each year; stirring spectacles aficionada. But I think one approach with her could be, someday, asking about the smarting residua of the Pacific Telesis takeover and subsequent redirection under TX Whitacre’s aegis; PT a substantial contributor on both sides of the aisle as a guarantee. Privacy important to her, but the rocky course thru public life she experienced always bends her rightward, a part of the spectrum she is free to represent in her moderate-part-of-spectrum homestate. I.e., I think there is opportunity there, if well accented. But with the Hepting fracas still on the front stoop, a notoriety which she would like to see evanesce. I know: late to the fray on this; but there may be more opportunity to readdress Senate concerns, if Conyers aggregates more support in that other chamber on the elusive documents he enumerates. Judge Colleen Kollar-Kotelly was especially inviting in the Crew opinion yesterday, as if some on the bench are willing to examine more finely the distinctions between executive privilege vs privacy in extant law on foia.

  15. Sedgequill says:

    Should the White House refuse to be responsive to most or all of the requests and questions in the Conyers letter, would opinion in the House be swayed significantly in the direction of opposing the Senate bill as written?

    • cboldt says:

      Should the White House refuse to be responsive to most or all of the requests and questions in the Conyers letter, would opinion in the House be swayed significantly in the direction of opposing the Senate bill as written?


      See for a parallel, the reaction to stonewalling on the subject of US Attorney replacement (a matter that is determined by STATUTE, not by the Constitution).

      While there may be a little bit of motion or reaction, there isn’t enough to sway the body as a whole to the opposite direction.

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