PATRIOTs and State Secrets Live Blog

Go here to watch the live stream of the House Judiciary Committee mark-up of the PATRIOT Act renewal and a new bill on State Secrets. Right now they’re in a quorum call, with very few Dems present. (16 members present–I guess no one much cares about this stuff??)

Conyers starting out attacking abuses, mentions hospital confrontation, hundreds of thousands of NSLs against innocent Americans. IG reports criticizing NSL letters. Expect a new report on exigent letters, even more abusive. Executive shield its actions behind veil of secrecy and over classification. Important that power to classify not be used to hide government abuses. Fine lines that we’re working between collectively. Real opportunity to bring about better balance. PATRIOT bill before us accomplishes that, preserves govt power where it’s needed most, reins in most problematic aspects of existing law. 3 critical changes. Overbroad standards on NSLs and business records. Govt no longer be able to demand information by claiming relevant to nat security. Instead govt must have concrete facts showing it is connected to terrorist or terrorist activity, or foreign agent. If govt lacks such evidence, can still seek for info needed to protect national security, but under supervision of a judge. Allows lone wolf provision to expire.

Lamar Smith: Misguided criticisms of these provisions have continued. PATRIOT Acts Amendment Act introduced. Obama Admin has asked for renewal. Upset no public hearing. [Um, there WAS a hearing, you moron.] Republicans had a forum yesterday and invited security experts to attend. One of our witnesses said we cannot connect the dots unless we first collect the dots. If you get rid of lone wolf, all AQ has to do is disavow AQ and then we can’t detect him. [So why’d you tell them, moron?] Prohibits obtaining records of libraries or book sellers. Safe haven to study bomb-making. PATRIOT already provides protection for library records. Also makes changes to NSLs. Only used in national security investigations to protect American lives. Not a coincidence that we have not had another attack. Direct result of using tools Congress gave. Rather than alter legislation that has proved successful at saving lives. That’s what the President wants, that’s what DOJ wants, that’s what FBI wants.

Nadler: Vital that law enforcement have tools it needs. PATRIOT went too far. As is often case, passion get the better of Congress. Too much unchecked power. Bill will strength PATRIOT, allowing us to protect civil liberties and national security. NSLs existed before PATRIOT. PATRIOT increased unchecked ability to use NSLs, use and misuse rose dramatically. FBI collected personal information. Lost records that were collected. Gag orders, have been declared unconstitutional. Have introduced leg to curb abuses. Would raise standards on NSLs, specific and articulable facts. Only pertaining to terrorists. Not for fishing expeditions. Burden on govt on nondisclosure. This bill would require minimization. No reason for govt to amass information about millions of innocent people. With enactment Americans remain safe.

Sensenbrenner: Here we go again. Lot of hyperbole and very little fact. I was author of PATRIOT in 2001. And also reauthorization in 2005. In 2001 PATRIOT gave law enforcement 16 expanded authorities. I had 13 hearings, contrasted to none before this hearing. Reauthorization had a lot of protections, other side of the aisle voted against those measures. Many of those complaining loudly today voted against that amendment. White House and AG have called for extension. That’s YOUR Administration, not our Administration. [Funny, I thought Obama was President of all Americans] Not one of them found unconstitutional. Unconstitutional holding has been around for a long time. This has not been gross assault on civil liberties that people have claimed ti to be. 8 years to litigate. We should not arrogate to ourselves position of judges, while discussing whether to extend it.

Conyers: Managers amendment. Strike 102, insert following: 101: Roving wiretaps,

Conyers interrupts.

Conyers: One small piece of history. Many who were not on the committee. Amendment that PATRIOT that we passed out unanimously thanks to Sensenbrenner, me, and Smith, early hours of morning in rules committee, entire measure was substituted. This measure of this importance, left us dumbfounded, only two copies present when it was debated on floor. More than two weeks have passed. Discussions ad nauseum. Discussed with Admin, DOJ, and other outside authority. A small number of clarifications and adjustments. This is not a repeal of the PATRTIOT Act. Several respond to issues identified by Admin and others on this committee. 3 major considerations. NSLs. It is time that we think through this and tighten the standards for issuance of NSLs requiring for the first time concrete connection to terrorist suspects or foreign agents. I don’t think this is asking too much. Amendment clarifies and better specifies types of connections. Also includes requirement for detailed annual reporting on use of NSLs. Other large considerations libraries and booksellers. Cannot use PATRIOT to fish through library and bookseller accounts. Clarify case of companies that sell books and much more–WalMart is classic example. They sell books, other things, and guns as well. Only books protected. Address concern that providing heightened protection for libraries safe haven for those who would do harm to us. Can obtain protected information if it can make case for heightened showing connected to terrorism or foreign agent. A few technical clarifications. Include adjustments to provision on minimizing information regarding US Persons collected under FISA and rules for using NSL info in criminal cases.

Smith: For each problem this managers amendment solves, corrects a new one. Corrects drafting error in provision. Underlying limits all FISA to single target. Unworkable bc FISA allows foreign powers. Amendment corrects just wiretap provision and not all electronic surveillance. Bill as introduced prohibition for library and book seller business records. Specific and articulable facts, but no evidence of abuse. Neither change are warranted or good policy. All Al Qaeda needs to do now is open a bookstore. Local police regularly use trap and trace in criminal cases. Minimization unworkable and impractible. Pen registers and trap and trace merely request phone numbers. Because no content, minimization makes no sense. What is there to oppose?

[That’s totally disingenuous. They’re using this data for network analysis]

Quigley: I would ask members of committee to consider as a freshman, we don’t have institutional memory that ranking member, Nadler, have. Critical importance, which is our job. Justice Department has, besides references of concerns on this matter. Hasn’t spoken specifically about how they would support or not support this. Concerns besides general fear or litigation. Makes reasonable decision about this difficult. It makes it more difficult. On other hand, Sensenbrenner express some concerns with problems with NSLs. I’d love to hear what you perceive those problems were. That makes the decisions we make today all the more difficult. Final point. Much of what we were briefed in some sessions was in executive session. I’m not sure what I can share with my staff.

Smith: Good questions. We should have had a hearing.

Quigley: Justice and others and agencies channeling concerns through, I know we’ve had discussions. I’m expressing my concern that after the fact review of what we’ve done.

Sensenbrenner: Chair in favor of amendment gave history lesson. Here’s the rest of the lesson. Substitute amendment was result of negotiations with other body. Controlled by Democrats. It’s somewhat of an anomaly that Republican controlled house more sympathetic to civil liberties. This amendment ends up hamstringing local law enforcement on pen register and trap and trace to figure out who is using both telephones and other devices. Not something that impacts only federal law enforcement. Ought to think twice about doing that bc we don’t like the word “PATRIOT.” Not one finding of unconstitionality.

Nadler: Don’t want to trace history of PATRIOT. Suffice it to say people on this side of the aisle who were never happy with what we did. 2005 improved, but did not improve sufficiently. I will say that the judiciary committee has followed thorough process. 2 weeks available. 2 hearings on PATRIOT, September senior DOJ. Last Congress 8 hearings. At least four bipartisan briefings. 13 highly detailed on uses and misuses of expiring provisions. Amendments seeks to make balanced amendments. They don’t open up the libraries to say AQ can do anything it wants if it opens up a bookstore. Managed ability to do two things. Privacy in what you read, exception when national security requires it. Relevant to authorized investigation and relevant to specific terrorist or organization.

Conyers: I’ve heard at least two members talk about AQ buying a bookstore and being exempt from PATRIOT. How amusing. It’s against the law for any AQ person to engage in any activity, period. Not just buying bookstore but opening fruit market. Go to FISA court and bust them immediately. Don’t have to buy bookstore for them to operate openly. Let’s have a serious, not a comic description. If you know an illegal terrorist, let’s turn him in, we don’t have to wait for him to buy a bookstore.

Smith: It’s also illegal for a terrorist to fly into tall buildings. Could use bookstore to get literature and computers.

Nadler: Anybody can do anything. The question is what level of knowledge or suspicion for govt to invade your privacy if they think you’re AQ? Proper debate is appropriate level.



Chaffetz (?): As a freshman, concern taht we didn’t have a legislative committee hearing on this. At subcommitee. It would have been appropriate to have legislative hearing. I’d like to know where Admin stands formally. It is an important part to understand how we got to this position. I would associate myself with Quigley. I do think it, it doesn’t take that long to go through it.

Nadler: The second point. Hearing in subcommitee. I’d say for your info, as far as I know, Admin has not taken formal position pro or con.

Chaffetz: It would be helpful if Admin had taken formal position.

Nadler: Will inform gentleman that I asked Admin over months to give us opinions. They were not prepared to do so. Until two weeks ago, DAG Whitten who testified at SC on this. Talked about pros and cons.

Watt: Most salient recollection, what led to PATRIOT in first place. You talk about flying by seat of your pants. Predicament that members of judiciary were in. “It was teh finest hour because Bob Barr was on the committee, … a libertarian, someone on your side that pays attention to constitutional prerogatives.” We couldn’t get the Administration then to take positions. This admin has followed the last Admin. They wanted us to give them more power, as soon as they got as much as they could get from us, they went to Rules and Senate and asked for more. Well, if AG Ashcroft is protecting me from terrorists, who’s protecting me from AG Ashcroft?

Chaffetz (?): The Bob Barr you’re talking about is the ACLU lawyer?

Watt: He wasn’t an ACLU lawyer then. I long for the day that somebody on your side of the aisle and remember that it was you that stood for individual rights at one point in your party’s history.

Gallegly: 215, FISA may issue order for library and bookstore records only in limited circumstances. The mgrs amendment is an improvement over original bill. Still imposes heightened standards for attaining library records. Why amending use of business records for libraries. Is this authority being abused? Is DOJ using it to monitor activities to innocent Americans. Answer is no.

Nadler: Oppose this amendment, urge all members to oppose. Would remove protections of privacy of people that go to bookstores, govt can still get info when they really need it. If it’s not tied to terrorism or foreign power, then it’s a fishing expedition and frankly they have no business getting it. There’s no legitimate reason that the govt needs that information.

Gallegy: Don’t have benefit of longstanding legal credentials. Requires order by court, makes based on request from FBI or NSA.

Nadler: Requiring an order of the court is not the key. Key is what you have to show the court, if you have to show court very little, it doesn’t protect you. If there are no reasonable facts to believe it has to do with authorized investigation, no reason to get it.

Gallegy: Still requires what it would require in GJ subpoena.

Nadler: GJ you don’t normally subpoena what somebody was reading. The question is should the govt have to show some reason to believe relevant to authorized investigation. We say yes, your amendment says no.

Smith: Support amendment. These records already have additional protections under existing law. No such heightened standard for GJ. Why should terrorist receive greater protections.

[You asshole, if you KNOW they’re terrorists, then you’ve reached Nadler’s standard!!!]

Good for Schiff and DWS–I was worried that they might vote against civil liberties and they voted in favor of them.

[Recess for votes on the House floor]

23 replies
  1. Mary says:

    Instead govtunchecked Executive branch must have

    Must have, or … what?

    Wait wait, how about this approach. We go to a system where an independent, impartial magistrate from the judicial branch of governmnet has to issue a warrant based on probable cause of a violation of a statute passed by the Legislative Lobbyist branch of govt.

    The courts have power of contempt and citizens whose rights are violated have Bivens and FOIA recourse.

    Too extreme?

    Never mind.

  2. Mary says:

    Nadler: Vital that law enforcement citizens have tools it protections they need[]

    Cuz, it’s not like giving police powers “all the tools” has ever gone wrong.

    I really like Nadler and Conyers has done some good work, but they lost not just the framing, but the path through the woods, on all of this a long long time ago. I still remember Nadler promising that while impeachment was off the table, Bushies would be criminally investigated and go to jail. I guess that was before everyone agreed that Congress was one of the “tools” for the police powers to use.

    Sorry to gum up the stream with comments- biting my tongue now, thanks for the liveblog.

    • bmaz says:

      Congress was done, and the gig up for accountability for the offending Bushies, when Congress passed the execrable Military Commissions Act (MCA) and then allowed themselves to be backed into the corner through fraud, scary threats and their impending precious summer vacation a little over two years ago in the summer of 2007. Those two measures passage gave the tacit Congressional approval and ratification of the crimes of the Bushies in the war on terror. Congress cannot now do anything substantive without having to address, condemn and reverse what they have previously done. They will make a little perfunctory noise, but will never really go there.

      • kindGSL says:

        Those two measures passage gave the tacit Congressional approval and ratification of the crimes of the Bushies

        It sends a powerful message for Congress to tell the entire world that the United States isn’t the least bit interested in following the rule of law. I guess it was them coming out of the closet.

      • freepatriot says:

        but …

        but …

        but …

        we’re the “Rebirth of Freedom” people

        to sum up, I don’t share your pessimism

        I gots sum pessimisms of my own …

        a person whose lifetime that stretches from JFK thru mad king george bunnypants has no business being an optimist, but I still got faith

        the only thing we can do is inform today’s utes of the promise they could achieve

        we may sound like idiots, but its THEIR future

        watergate turned me away from politics for 20 years

        bushco has today’s utes pissed off and motivated

  3. dakine01 says:

    Ah yes, ‘nice’ to know that the execrable Lamar Smith is still carrying Bush’s water through all of this.

    Slugs don’t change very much do they?

  4. phred says:

    Pssst… Freshmen, listen up! You are members of an independent branch of government. You do not take dictation from the executive branch. Got it? Good. Now do your fucking homework before the committee meets next time so that you will be properly prepared. K? Thanks. Glad we could clear that up for you.

  5. TarheelDem says:

    Give ’em Mel.

    Well, if AG Ashcroft is protecting me from terrorists, who’s protecting me from AG Ashcroft?

    • kindGSL says:

      Ashcroft was one of the ones who was spooked by the fact of me being a witch.

      I knew their attack on the Islamic world was religion based so I set out to expose it, expose their dirty ‘christian’ jihad. Murdering people is what they were trying to do, we can accuse them of mass murder at anytime.

      To make political hay on it we need to address the press, as in why they went along with the cover ups.

      • freepatriot says:

        Ashcroft was one of the ones who was spooked by the fact of me being a witch

        you’re a witch ???

        I got a question: how can I be sure the candy I passed out last saturday night REALLY was prayed over by witches (per pat robertson IIRC) ???

        is there some kind of label or logo I should be lookin for ???

        sorry to go O-T, but I had to ask …

        btw, from the looks of the neighborhood kids today, I got some counterfeitbogus stuff …

  6. powwow says:

    Sensenbrenner: In 2001 PATRIOT gave law enforcement 16 expanded authorities. […] Not one of them found unconstitutional.

    [I’m “proud” that there’s] not one finding of unconstitutionality.

    Is Sensenbrenner also “proud” that he just lied to the committee, and to the public, about the court’s opinion of the constitutionality of the PATRIOT Act?

    To wit, from way back in 2004, in a case still on appeal by the government, in which a decision has been pending from a Ninth Circuit panel since oral argument in February this year:

    In Mayfield v. United States, U.S. District Judge Ann Aiken (District of Oregon) held that parts of the Foreign Intelligence Surveillance Act (FISA) of 1978, which were altered by the USA Patriot Act in 2001, are unconstitutional. The case was brought by Brandon Mayfield, who was put under extensive surveillance and then detained for two weeks because the FBI suspected him of involvement in the Madrid train bombing of 2004.


    In particular, Judge Aiken concluded, the USA Patriot Act’s changes to FISA made it run afoul of the Fourth Amendment.


    [Judge Aiken] concluded that FISA expanded scope under the USA Patriot Act spread beyond the limited realm set out for foreign intelligence gathering in the Keith case — and into Fourth Amendment territory. Because FISA’s protections are quite loose, they were not sufficient to satisfy the demands of the Fourth Amendment:

    In this case, the court declines to adopt the analysis and conclusion reached by the FISCR in In re Sealed Case. . . . Prior to the Patriot Act, FISA may have had as its “general programmatic purpose . . . to protect the nation against terrorism and espionage threats directed by foreign powers.” In re Sealed Case, 310 F.3d at 46. After the Patriot Act, however, FISA surveillance, including the surveillance at bar, may have as its “programmatic purpose” the generation of evidence for law enforcement purposes – which is forbidden without criminal probable cause and a warrant.

    Judge Aiken’s opinion:

    A partial transcript I made of February’s Mayfield oral argument, in which the government argued that data derived from unlawful FISA “take” is lawful:

    And here’s the audio link for the entire Ninth Circuit Mayfield oral argument:

    • Mary says:

      Damn, I don’t shut up well, but since the live part is over – in addition to Mayfield’s case there was the John Doe on the NSL gag orders (Newman, Calabresi and Sotomayor) where even with nifty “construction” of many parts of the legislation to avoid constitutional issues (and to use a very different construction than DOJ and the Exec were using in their enforcement) there were still constiuttional issues. Maybe fixed now, maybe not. I lean towards not.

      • powwow says:

        Well, I noticed that Sensenbrenner is trying to disclaim all responsibility for NSLs as part of the ‘pristine’ PATRIOT Act over which he claims authorship [at least of the Act that unanimously passed the HJC, before mysterious unknown others swapped it out for another bill in the Rules Committee – swapped, according to Sensenbrenner, to please the Democratic-led Senate, and according to Mel Watt, to please and further empower the administration]. Sensenbrenner instead points to Pat Leahy’s original 1986 legislation as the NSL-originator, and claims that all the 2001 PATRIOT Act did is move the NSL language from one part of the U.S. Code to another.

        It is amazing how the basic fundamentals of the separation of powers – the sharing of power – are so completely foreign to the general run of these Judiciary Committee legislators (or, to be more accurate, these HJC professional fundraisers). For example, the fact that a Grand Jury is itself a fundamental check on the abuse of Executive power completely escapes someone like Gallegly (egged on by Smith). It may be mostly pro forma anymore, but it still exists, and, like jury trials, is an extremely important part of the system for preserving justice and liberty in this nation. But there’s Gallegly trying to pretend that forcing the secret FISA court to accept whatever the FBI Director, or his deputy, alone can summon up as a reason to swear to the need for a library/book store personally-identifiable records search, is somehow an equivalent check or balance to that represented by a Grand Jury subpoena.

        I don’t know if the HJC is in fact going to deal with its State Secrets legislation today, or not, but I ran across this comment I made at Glenn’s some time ago, and it seems worth repeating, given the sorry state of the HJC debate so far. It addresses the same crucial issue of the balance of powers, or lack thereof, in existing, and proposed, legislation, but here focusing on new State Secrets legislation that may only purport to hem in the Executive Branch:

        It’s key that Congress recognize the incentives and power of the branch of government that both asserts “state secrets” and controls the means of criminal case prosecution and of government defense in civil cases, as well as the option of intervening into wholly private civil cases (on behalf of corporate defendants, for example). [Recent examples of the latter situation include the spying-related civil suits against the telecom corporations and the torture-related civil suits against the Boeing/Jeppesen corporation, where the United States has intervened to attempt to dismiss the suits in the name of “state secrets.”]

        That powerful branch is of course the Executive Branch – acting through its Department of Justice and U.S. Attorneys in every state. So when the Supreme Court propounded its short-sighted Reynolds decision in the early 1950s, it handed a powerful, broadly-worded shield to the branch of government that alone holds the power to prosecute and defend in the name of the United States. That branch – the federal executive – is at the same time the branch that effectively controls the classification and declassification of information under its control, with little or no Congressional oversight. Put all that together, and we have the makings of a recipe for disaster in a self-governing, representative democracy that depends on public debate and built-in checks and balances to preserve liberty.

        There are, obviously, remedies – remedies that ought to be thought through, and very carefully defined in a way that the Supreme Court’s Reynolds decision (and, to a lesser extent, the Classified Information Procedures Act – “CIPA” – law that followed it) was not, using lessons learned over the intervening years. Ondelette is spot-on in saying that Congressional reform of the overall system of classification itself is one obvious, overdue avenue for a fundamental remedy – a remedy that would tend to return respect to the meaning of classification itself, among many other benefits.

        But aside from thorough reform of classification and/or finding some method of getting the Department of Justice out from under the control of the presidency alone (which is starting to seem more and more advisable at the federal level, and is done in many states via elected AGs), we have to find a way to address these power imbalances when writing new law governing Executive Branch-classified information.

        CIPA (and the graymail tactics it provides powerful defendants) just about sank Fitzgerald’s Libby prosecution. It was nip and tuck at one point, from all appearances (which weren’t many, given the secrecy involved). The process stretched out for months, pre-trial. And that was with an excellent (if CIPA-inexperienced) judge, an extremely dedicated and hard-working government prosecuting team, and a CIA motivated to help the government’s prosecution – the Intelligence Community repeatedly provided different substitute versions and summaries of classified information that could be publicly released (but which mostly never were released in the end, because the whole tactic was a labor-intensive effort forced by Libby in an effort to prevent a trial).

        Thus: Under CIPA the government itself is the prosecutor and has a powerful motivation to overcome the classified information hurdles involved to proceed to and through trial. Not so with the “state secrets” privilege – or new law – in civil cases: There, the government is instead the defendant or intervening for the defendant and has little to no motivation to help the trial proceed (or succeed) past “privileged” secrets asserted by the government in the name of “national security.” That’s a rather profound difference, which Congress cannot gloss over as though the Executive Branch will act with equal dispatch under both the criminal case CIPAct and the proposed civil case SSPAct.

        CIPA also needs reform, as Judge Walton tried to convey – it offers a huge incentive to attempt a graymail dismissal for the most powerful Executive Branch actors (those who had the most access to highly classified information). If Congress were serious, it’d be considering reform of CIPA too, with Patrick Fitzgerald and others testifying about CIPA’s strengths and weaknesses.

        In sum, carelessly modeling a State Secrets Protection Act on the Classified Information Procedures Act is obviously insufficient, and recklessly overlooks the differing roles of the parties involved in the disputes, and the inverse incentives for the Executive Branch in criminal vs. civil cases involving its classified or “privilege-asserted” information. More onerous burdens and requirements must be placed on the Executive Branch in any SSPAct, as compared to CIPA, to counteract the obvious temptation for busy Department of Justice attorneys to let the inevitable red tape of a state secrets act block adjudication of civil suit claims.

        And I somehow doubt that we want to rely on the instinctively-authoritarian Pat Leahy, 1986 originator of the National Security Letter, as the primary author (or rubberstamper) of any such new State Secrets Protection Act.

  7. freepatriot says:

    waaay off topic, and on a personal note, I jes checked the trashtalk page to catch any epu stuff

    so, ew, did I pass ???

    my guy came thru, right ???

    btw, I been practicin a few new lines to warm up for when the brady bunch comes to town, which one ya like best:

    Marcus Fookin Colston

    Jeremy Fookin Shockey (not my favorite)

    Pierre Fookin Thomas

    Darren Fookin Sharper

    (I’m gonna copyright that last one, ala “Bucky Fuckin Dent”. every time you use it you owe me a dollar)

    maybe we could have a vote on it

    and y’all might need this after that

    (duckin an runnin)

    shouldn’ta closed trashtalk afore I noticed …

    • emptywheel says:

      Yes he passed (as I noted in some other EPU comment).

      And you can’t have my vote for Darren Fookin Sharper–which is what I’d vote for–if you threaten to then copyright it. Nuh uh. I’d even vote for (ack!) Jeremy Fookin Shockey to avoid the copyright.

  8. bobschacht says:

    For a short thread, this diary has more than its share of potent comments. I hope that those who know what the right eyes are will pass the word along, lest these comments be overlooked.

    Bob in AZ

Comments are closed.