PATRIOT Hearing Liveblog

You can watch here.

Nice. Leahy started by referencing Obama’s statement to NCTC and references the Zazi and other arrests.

Leahy: We can’t go into what was said in a highly classified briefing. Need for prompt action and tools they need. Our bill increases use of congressional and judicial oversight.[repeats for emphasis] We have done so without undermining operational effectiveness of counterterrorism tools. On the last point I don’t think there would be any doubt following the highly classified briefing.

Oversight oversight oversight.

But no Fourth Amendment.

Leahy: On matters currently before Supreme Court we should move carefully.

Leahy’s pretty determined to push this through without Feingold holding things up.

Sessions: What we don’t all agree on is that the PATRIOT Act is not an overreach. Classified briefing. See if we can agree on language. Operation difficulties have been altered. Five amendments to address operational issues. One, on pen registers minimization. Remember, pen registers just pick up numbers, not content. [Uh, and names, and with email, probably subject lines.] Judicial review standards for NSL non-disclosure orders. "Judges should not have discretion" to refuse a non-disclosure order if govt meets the burden.

How nice that the ranking member of SJC wants to gut Article III of the Constitution.

LOL!! Sesssions trying to eliminate library exception with "the Fourth Amendment."

Sessions, on pen registers, claims no content. (Um, except for the subject lines of emails?)

DiFi: NYT wrote article about efforts to come together. Responds to problems found by courts–Doe v Mukasey–having to do with disclosure. On its face, limits to terrorists and spies makes sense. HOwever, for reasons that get classified very quickly, would unacceptably affect terrorism cases. Najibullah (she can’t pronounce) was case in point. I did not describe why. I asked Kris whether anything in this bill would obstruct any ongoing investigation. He said "I cannot say in public session." Briefing from head of NCTC. Both he and Kris said that new language solved trap and trace. Court very engaged. Not just perfunctory review.

BullSHIT!!! If the court can only review the FBI Agent’s theory, then it becomes perfunctory.

DiFi: Dead wrong when it says the bill has excesses that contribute nothing to making Americans safer.

Kyl: Unfortunate that some of our deliberations have to be in classified setting. Regrettable that great newspaper like Times can’t be privy to all those discussions.

(Talk to Lichtblau and Risen!!)

Kyl: Passionate speeches by Leahy, Feinstein, Franken in classified setting. Just wish NYT could have seen passionate speeches.

Here’s the op-ed from NYT.

Leahy: What was very impressive was the people who were responding (in classified briefing).

Specter: Reasons for opposing proposed changes. Moved from requiring connection with foreign power. 2005, this committee reported unanimously. Core of bill required connection with foreign power. When that is taken away, guts structure of PATRIOT Act. Lone wolf, no connection to foreign power. Again, guts structure of PATRIOT. Roving wiretaps. Lack of specification. Whole point on probable cause for search and seizure. Probable cause and specificity. Our committee ought to be more assertive as guardian of separation of powers. State secrets, just declare it. 

Hatch: Taken steps backwards in 215, delayed notification searches. We’re requiring terrorist investigators to jump through hoops we don’t ask criminal investigators to jump through.

Feingold: Bill continues to head in wrong direction. Sessions’ amendments just came up yesterday. Will reserve right to address issues on floor. Overall tone wrt what’s happening to this leg. NYT absolutely right wrt its op-ed. Specter just pointed out, former chair of this committee, Lone Wolf has never been used. I don’t think roving wiretap issue has been adequately resolved. NSL clearly hasn’t been resolved. Particularly WRT 215. Issue that Feinstein addressed. Briefing yesterday. Feinstein as Chair of SSCI. Probably Senator has had most conversations, question is whether standard would have impeded investigation (Zazi). Issue before us is not theoretical change. We proposed to fix it, not let it expire. That’s the problem with this whole discussion. Too much of info crucial to this debate is classified. Absolutely essential that this be declassified. Specter, different background and voice.  In 2005 every single one of us voted for standard that Durbin offered. I’ve sat in intelligence committee since and listened for any reason why that standard couldn’t protect this country.

Cardin: Thank you for bringing forward balanced bill. I was present at yeasterday’s briefing. Helpful, since I do not sit on SSCI. Practical aspects of pen registers, how disclosure issues work. Thank Sessions, these changes improve bill. Agree with Feingold: Standards that trigger use of these tools is our responsibility. Those in law enforcement want broadest authority. Most people will use that power–at least initially–in right way. But there are times that they’re stressed, that they will go beyond what they should. NSLs were abused. Important that we exercise independent judgment. My interpretation is that that does not impede national security. Yes, may change standard as far as thoroughness used by law enforcement. Should not delegate our authority as to these standards. 

Whitehouse: Two quick points, in classified briefing heard from senior law enforcement and CTC programs, unanimously told us required these programs, Senators may have different views but in conflict with those administering these programs. A bit unfair to make comparison between law enforcement pen register, for reasons that are classified, we were briefed yesterday, many of us were aware beforehand. Where they are like law enforcement, no greater requirement bc terrorist investigation. Only in those areas that can’t be discussed, there is this other standard. A bit unfair to suggest we’re applying higher standards to CT investigations. Where they’re not the same for good and classified reasons. 

Leahy: All those who favor Sessions package. Ayes have it.  (Sounds like Feingold and one other were the no’s).

Durbin: Protect Constitutional rights on NSL. Only be issued some grounds to believe tie to terrorism or spy. Can get these records even when there is not tie to terrorism. Can lead to govt fishing expeditions. We’ve been told no reason to worry about broad grant of power. AGAG said librarians raising concerns were "hysterics." DOJ no time to monitor reading habits of Americans. Mukasey "paranoid fantasies." We now know FBI has issued NSLs for reading habits of innocent Americans. IG widespread abuses without reporting to IOB. Commend audits. W/o audits we still would not know about abuses. Clear abuses of rights of innocent Americans. FBI would have broad authority. But innocent Americans would enjoy protection. In this country, presumption on freedom of innocent Americans. Let me remind colleagues, Section 215 different from NSLs. NSLs approved without judge. NOW INFORMED OF WIDESPREAD ABUSE WHAT WILL DO ABOUT IT? NOTHING?? I believe we can be safe and free.

Kyl: Two main points in response. First of all significant IG criticism of FBI procedure has nothing to do with connecting to foreign power. Primarily having to do with exigent letter problems. Secondly, now had extensive testimony about the extensive efforts to correct deficiencies. What are we to do about this? We’ve been hearing about what FBI has been doing about it. Right back in problem of beginning investigation before having facts to prove connected to foreign power. Really hard to do. A lot of folks we have read about in media, tenuous connections to foreign power.

Um, yeah, Zazi was off meeting with AQ, is that not a connection???

Kyl: It should not matter whether we can connect them to foreign power.

Fine–then we’ll use these rules to go after abortion clinic terrorists, okay, Kyl???

DiFi: I must oppose amendment. My belief that this heightened standard render NSLs useless for main purpose. Gather info at earliest stage of investigation. Gather information to establish whether someone is agent of foreign power. As those of us that were present know, law enforcement wanted lower standard. Must present specific and articulable facts related to investigation. They would prefer relevancy. Durbin brings standard down lower. 9/11 happened. Everybody wondered why intell community didn’t know more. Not set up to ferret out information.

Leahy: We’re going to keep on doing oversight. Will oppose Durbin’s amendment. Throws burden on every single member of this committee and every single member of SSCI to do the oversight.

Feingold: Durbin tremendous ally on these issues. Amendment insures NSL is used in focused and effective manner. It was a significant problem for Congress to grant government broad authorities and just cross its fingers. Kyl: Look, FBI cleaning it up, let’s just leave it to them. IG Report indicated problems with ambiguity in statute as part of the problem. DiFi, if we do this render NSLs unusable. Only be true if one standard. These things can still be used even if pertains to someone in contact or relevant to activities of foreign power. DiFi says may be before you know. Without any standard at all you’re looking at fishing expeditions. Exact standard wrt 215 all members of committee voted for in 2005. With NSLs no court review, even more compelling.

Sessions: Do believe Durbin misunderstands this amendment. Importance greater than how they are understood. 

Cardin: Durbin maintains relevancy standard. Says you need to be able to point out this involves intl terrorism. Need that dot. If it’s a domestic issue we have established principles and tools that should be used.  Our constitution doesn’t envision that FBI writes laws. Durbin amendment, make it clear there needs to be relavancy.

Klobuchar: Agree with you and Sesssions. Point to actual language. Not pie in sky standard. (Says relevancy is in bill.)

Durbin: Want to make that point. Klobuchar just read my amendment. Standard that applies to those who activities and contacts of foreign agents. Listen to debate and wonder how people think Second Amendment rights so absolute. Clearly our right to privacy is not. Reasonable standards, standards will keep our nation safe, consistent with Constitution.

Kyl: Matter DiFi has spoken to to respond to Doe v. Mukasey in 2nd circuit. Utmost deference, substantial deference, in two different places, substantial weight. One of these kinds of terms is necessary, appropriate doesn’t give guidance to fact-finder.

Cornyn: In previous lifetime was judge. Look at amendment, wonder how judge would decide disputed case. Appropriate, not legal standard. 

Leahy: I’m in 2nd circuit, paid a lot of attention to Doe language. I think that gives govt too much weight. Courts always weigh nat sec concerns of govt. Bill as we offered has language.

DiFi: I was one that had questions about appropriate. I had suggested substantial weight. Used in FOIA, state secrets. Legal value. In interest of bringing parties together will support substantial weight. I said FOIA, should have said FISA.

Hatch: If these amendments are accepted, I’m prepared to vote for this bill. Still have questions about bill. 

Whitehouse: Share opinion of Kyl and Cornyn. For reasons we discussed at some length, support amendment. Point at which determination gets made, point at which classified investigation gets disclosed. Default is that ongoing investigation might be revealed. 

Feingold: Standards on minimization, use FISA. Well-established concept. Last time, Congress mandated on feasibility of minimization. Nearly 4 years ago, have yet to receive results of inquiry. Its recs still have not been acted on. Waited too long. Set clear rules for how FBI handles massive amount of info it acquires through NSLs. Congress have access to minimization procedures. 

Leahy: Read that report. Take same position with Dem Admin, should be hard deadline to produce what IG has asked for. Should have had procedures by now.

DiFi: Support amendment. Don’t see anything that we should not do.

Sessions: On FBI program. Did find misuse, did not find abused fundamental standard. With personal attention of FBI Director we don’t have to place any more burdens on what is basically administrative subpoena.

Feingold; Not about standard. IG specified were inadequate.

Kyl: Very troubled about this amendment. Operational difficulties about minimization in this context as opposed to others. This idea is far enough out that I don’t think we even asked FBI about this. We’re going to have minimization for grand jury subpoenas next? Minimization ordinarily pertain to US citizens when deal with non-US citizens. How do you make sure protected. NSLs are going to relate substantially to US Citizens.

Thanks for clearing that up, Kyl.

Leahy: FBI is close to having procedures. I’ve been consistent in pushing to respond to IG’s request. Saying same thing with Dem Admin. Asked to do by IG, now do it.

Feingold: I don’t know of anyone thinks this is a problem. They’re working on it. FBI director thinks we ought to do it, AG thinks we ought to do it.

Kyl: Register my objection. 

Kyl: One more amendment, subsumed in what Feingold just did. Retain relevancy standard. Written statement of facts shall be retained by FBI. 

Durbin: Those who said I went to o far, Kyl now wants to get rid of articulable facts. Why not just let them do what they want to do. People earlier said, that’s our protection, now you’re removing that protection!

Kyl: My amendment strikes specific and articulable. When you go to full investigation require specific and articulable.

Leahy: No court review. Should be thorough record.

Whitehouse: Logic for amendment is that statement of facts is what is customarily relied on for this kind of internal determination. The concern is that by bringing in specific and articulable facts language, bringing in Terry Stop context. Subject to review under Fourth Amendment. Doesn’t obtain court oversight. Inartful. 

Sessions: When you issued subpoenas as USA, they didn’t get court review. 

Kyl: If in fact we’re going to have minimization procedures I don’t see any problem with this language.

Cardin: Review tools. Someone buys cleaning products that could be used to make explosive device.

Hey!! That was my suggestion.

Cardin: You don’t want to use NSLs on everyone who buys cleaning supplies in the country. Relevant to investigation. Feinstein pointed out specific and articulable facts. Not going to be second guessed on getting information. Gives us oppty in oversight to make sure not using it for everyone buying cleaning supplies in country.

DiFi: listening to debate. These are given out by many thousand. Specific facts prior to certification. Kyl is right about art-kyoo-la-bull (problem saying that). Would you be amenable to dropping that? Specific is the issue.

Kyl: Good question.

Kyl: If we say that we want to know about Joe Blow buying hydogen peroxide. 

Whitehouse: Because specific and articulable comes from another context. Not trying to use Terry stop procedures. By getting rid of articulable, you get rid of that connection.

Kyl: If it is clear record of decision of this committee to unwind. Accept that change.

Leahy: Fully understand: you would change your amendment to strike and articulable, but keep specific.

Hatch: I have trouble with that. And I respect my colleagues, I really do. 

Feingold: Concerned about role of judiciary. Any time FBI objects, we throw out language. Any time perspective of prosecutor introduced, we change language. We’re not the prosecutor committee. We’re the judiciary committee.

DiFi: It makes it harder to do a fishing expedition. A guarantee we owe the country.

That’s awfully big of you, DiFi.

Kyl: Language would have to be modified slightly. 

Feingold: Roll call please.

Feingold: FISA AA, ensures no bulk collection between overseas and US. Supported on floor by current president and vice president. Bulk collection would completely overwhelm already overburdened minimization. Bulk collection could be unreasonable under 4th Amendment. Nothing would prevent their communications from being retained. I would expect some of my colleagues to say we should trust govt. McConnell said it would be desirable. 

Leahy: Not in process of reauthorizing FAA. Oppose now.

Feingold: Withdraw. Allow lone wolf to expire. Not part of PATRIOT Act.

Leahy: Willing to reauthorize it.

Passed 11-8. (Nos were Feingold, Specter, Durbin, and five Republicans–I think Sessions was one, not sure about others).

18 replies
  1. JonPincus says:

    They made passionate speeches! Well, that changes everything!

    Am I the only person who finds it irritating that they all keep saying how it’s too bad it is that the press and ordinary Americans can’t know the reasons why they have to restrict our rights?

  2. HarryWaisbren says:

    I’m sick and tired of politicians presuming Americans are cowards willing to give up our liberty for security.

    We need to call out these chicken littles, no matter how many Zazi’s they cite…

  3. WilliamOckham says:

    I find it very sad that someone who usually shows good sense (e.g. Leahy) would accept the notion that the reasons that a particular provision are a good idea are classified. If we the people can’t know why the law says what it says, then we don’t live in a democracy. I had really hoped that the Senate Dems would show some more spine when there was a Dem in the White House and the Reps would reflexively oppose giving a Dem President these powers. That’s how it worked when I was young. How very depressing….

  4. Jim White says:

    Sessions is such a liar. He said an NSL is just like a prosecutor subpoenaing records. Uhhm, don’t those go through a judge, while the whole problem here is that NSL’s don’t?

  5. SmileySam says:

    It saddens me to watch so many dems vote against the very protections they promised us if we made sure they were given control of the gov, Congress, and Admin.
    So much of the info is still secret that Americans need to know to be able to understand what is being done that it is impossible for us to know how much damage is being done to our civil rights in this hearing. It is truly a sad day.

    • bmaz says:

      Administrative agencies use these fucking things all the time. We used to call the desk subpoenas because all it takes is for some bureaucratic pinhead sitting at his desk to fill one out, often not even a lawyer, and they abuse the crap out of them. Worse, law enforcement has a nasty habit of co-opting admin agencies to use them to get things they cannot establish probable cause for or otherwise don’t want to have to answer for to a court.

  6. phred says:

    Just a quick drive-by to say thanks for this EW. I’ll try to catch up later today.

    But from the early bits I’ve read so far… What’s with all this “classified briefing” bs? Translation: “trust us”. That’s absolutely laughable after the last 8 years.

    Have the Dems lost their collective minds? Do they have total campaign amnesia or do they figure we have no choice, so we’ll keep sucking it up and voting for them no matter how often they betray their promises? Makes me sick.

  7. Jim White says:

    Great outburst from Feingold:

    Don’t end the debate just because FBI or a prosecutor doesn’t like it: “That’s not our job!”

    Way to go Russ!

  8. skdadl says:

    The discussion over “specific and articulable” — Jonathan Swift, where are you now that we really need you?

    I think I grasped part of the problem listening to Whitehouse, except as Kyl rewords that argument, he seems to be saying that the law should follow FBI practice. ??? I could be wrong about that, but when you shave away all the pedantry (Whitehouse’s failing, I think), that seems to be where we’re left?

  9. tejanarusa says:

    Have to come back and read all of this later – skimmed far enough to see voice approval of a “Sessions package.”

    Call me biased, but the fact that it’s a “Sessions package” seems more than enough reason to defeat it.

    Sorry to comment on such rough reading, but I’ll be back. So glad this will be here to review.

  10. Mary says:

    I’d say part of the dynamic you have going on is that Whitehouse and Leahy are ex-prosecutors. What may be going on (just WAG) is that as Congress has given out more and more legislative rope, the FBI has been going out and using it to hang innocent Americans (as the founders knew would happen). All of which was OK with Congress and the FBI as long as it was all a matter of secret courts and disappearing children and shipping Canadians to torture and the like.

    Now, though, after casting lots of nets into schools of dolphins with untold damage, lo and behold they’ve found a fish or two. Maybe not like they would have if they’d been fishing instead of casting dolphin nets, but there ya go. So there is an off chance now that, invocations of state secrecy notwithstanding, some of the tactics might actually get a real judicial review – you know, where “oversight” isn’t a matter of looking something over and saying “tsk, tsk, that’s really bad isn’t it?” but actually taking a reaction in respone to wrongdoing – like disqualifying evidence or the like. And where the parameters of the approaches might get some exposure.

    Now sending in a case against guys ultimately discoverd to have been bad guys (and isn’t it interesting how this has all coincided with the renewal debates? wow, who’d a thunk sincronyickity worked so well), but with investigations and cases initiated on a lot of very suspect procedures under appallingly bad legislation, if there are any real judges left anywhere some prosecutors might be having a pretty hard way to go on some of what they’ve done. So, what if, in that setting and posture, Congress also adds in repeals of the authorities they were operating under bc Congress acknowledged they were unconstitutional fishing expeditions?

    That’s not going to make prosecutors happier and it might trigger a court to both take a review it otherwise would have passed on, or let it take a correct position on the law but share the responsiblity by pointing to Congressional revisions and debate, etc. OTOH, the authority and procedures is or is not constitutional. That should be stand alone, but it is going to be a really difficult position to place a court in, to be “the person” who rules on “letting a terrorist loose on American soil” because of illegal searches and forbidden fruits. Esp with the way the Sup Ct has been going (saying that yes, something is unconstitutional, but what the hay, don’t do things like bar evidence or kick cases). And Esp with Republicans (and some Dems) who are so degenerate they think nothing of things like deliberate efforts to sic the crazies out there on someone like a judge.

    The down side of Obama putting someone like a Kris in a position where he is likely involved in the briefings to Congress is that he is also a solid, convincing guy IMO. I don’t believe in DOJ’s efforts to strike down any wall, instead of building a better wall, on criminal and national security investigations using different standards of review (or non-review) for surveillance. I have an immediate and antagonistic response against it – but. But, when I read some of Kris’ work and presentations to Congress, he ALMOST had me buying it. There was this reassuring feel (kind of like the initial feel I got from the Fitzgerald press conf re: the Libby indictment) that you had sensible, concerned, thorough, cautious, careful, measured persons and mechanisms. And you do kind of want to say, “damn, this is all hard, and this is probably a good guy, and it would be so much easier to just turn over all the responsiblity to them and …” and then you wake up and read about kidnap and sodomy with objects and forced nudity and force feeding and beatings and disappareances and druggings and drownings and hypothermia and DAYS stretching even into weeks and months, of non-stop sleep deprivation and …

    And then you wake up and remember that it’s not supposed to be easy.

    Still, Kris has been around (despite leaving during the Bush Nightmare), has briefed SJC on nat sec related items for a long time, and is going to impart a very differnt feel, even to Dems, when he says, “we are cleaining this up, we are going to do the right thing from now on,” etc. And Obama is on the ropes in lots of places – so taking real and present cases where guys who maybe are actual bad guys are involved and doing things to jeopardize cases (although i would tend to think Feingold is right that the jeopardy that exists is based more on old Congressional actions and is independent of what they do now to fix things)is one more hit for an administration that is already operating on the WaPo Howell standard of journalistic excellence government, i.e., it’s not about getting anything right; it’s all about having everyone dislike you – that’s how you’ll know you’re doing a “good” job.

  11. iremember54 says:

    The terrorists blew up a couple buildings, killed three thousand, and cost us several billion.
    The Congress has stollen the Countries wealth, created the housing and banking crisis’s that almost ruined our economy and most of the worlds. They ceated the insurance based healthcare system, we now are looking to them to fix. They voted for the wars and funded them, so they killed more of our people than the terrorists. They have created every problem this Country has and not fixed one. While saying all the time SS needs fixed neither party will quit taking the money from the fund. They know the medicare and medicade are unsustainable, but have done nothing to fix them. They know we have to much debt, but just let it build. They not only bail out the big money interests but have sold us all out to them. While people are losing jobs, homes, healthcare, their savings, and their lives. They are more worried about the stock market going up, the banks making money, and how much they can get in campaign funds.
    The real terrorists are the people you voted into the Congress, the political parties, and Your Government.

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