George Bush’s “Perfect Crime”

You guys are chatty, so I thought I’d put up some of the Feingold speech you’ve been talking about.

The telephone companies and the government have been operating under this simple framework for 30 years. The companies have experienced, highly trained, and highly compensated lawyers who know this law inside and out.

In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration’s warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that doesn’t hold water.

And quite frankly, the claim that any telephone company that cooperates with a government request for assistance is simply acting out of a sense of patriotic duty doesn’t fare much better. Just recently, we learned that telecommunications companies have cut off wiretaps when the government failed to promptly pay its bills. The Department of Justice’s Office of the Inspector General released a report last month finding that, quote, "late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance to the FBI, resulting in lost evidence." Since when does patriotic duty come with a price tag? Evidently, assisting the government’s criminal and intelligence investigation efforts fell somewhere below collecting a paycheck on the companies’ list of priorities.

Mr. President, some of my colleagues have argued that the telephone companies alleged to have cooperated with the program had a good faith belief that their actions were in accordance with the law. But there is an entirely separate statute, in addition to the certification provision, that already provides telephone companies with a precisely defined good faith defense. Under this provision, which is found in section 2520 of title 18, if the companies rely in good faith on a court order or other statutory or legislative authorization, they have a complete defense to liability. This is a generous defense, Mr. President. But as generous as it is, it is not unlimited. A court must find that the telephone company determined, in good faith, that there was a judicial, legislative, or statutory authorization for the requested assistance.

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FISA Liveblog And Trash Talk Thread Monday 2/11/08

RevDeb and Selise ask for a forum for discussion of the FISA debate currently on CSPAN-2; who am I to say no? Discuss away my fine friendlies…….

Don’t Gag Ma Bell

I’ve been dissing my Congressman John Dingell by not pointing to the letter he, Bart Stupak (also from Michigan) and Edward Markey sent their colleagues about the FISA bill. But it raises an issue that deserves more attention. After discussing the rationales for telecom immunity, they point out,

For the past five months this Committee has asked, in a bipartisan manner, the phone companies and the Administration to explain whether they acted outside the bounds of the law and what would justify Congress telling a Federal judge to dismiss all lawsuits against the phone companies. The phone companies respond that the Administration has gagged and threatened them with prosecution if they respond to our inquiries. When the Committee requested that the Administration either remove the gag or provide the Committee with the relevant information, the Administration repeatedly refused. Surprisingly, even at this late date, the Administration has not deemed it important enough to respond to our repeated inquiries or even to brief the Committee Members in closed session.

Understand, John Dingell is a long-time friend of the telecoms (and can muster an awesome lecture to constituents on telecom history on demand). And this is the crowd in the House that legislates on telecoms more generally.

Yet the Administration won’t let Ma Bell talk to them–at least not about her overwhelming need for immunity. The Republicans claim that, unless Ma Bell gets immunity, she’ll go out of business. But they won’t let her tell that to the legislators who know the telecom business best.

So it’s not just the Administration’s justifications for their illegal spying program they’ll show to only 20 or so members of Congress in each house. They won’t even let Ma Bell make her case herself. 

I’m traveling tomorrow through Wednesday, so I won’t be glued to the teevee to liveblog the FISA votes. But I’ll try to touch base as the Senate vote develops.

FISA Debate and Votes

Sounds like we’ve got two votes coming up–two roll call and two voice votes.

Feingold: Use limit. Gives FISC option to limit use of data collected illegally.

Bond: Recommend veto, reading from Mukasey/McConnell letter directly.

Jello Jay: This amendment would prevent dissemination of any US person data. No need to add another penalty. Amendment gives statute court whether non-disclosure is required. I oppose this amendment strongly.

Reid: Resume Feingold amendments, and time until 5:25 be for debate, and then vote.

Bond: Four minutes each for next vote.

Feingold: Respond to burden bc require govt to identify info about US persons. Kick in only if govt proposes to disseminate information, in which case minimization already requires govt to identify US person information. My amendment imposes no addition burden.

Bond: Makes no sense to exclude information simply becase [it was illegally gathered]. Calls for roll call.

DiFi hanging out with Jello Jay by the table. Read more

Arlen “Scottish Haggis” Specter Enumerates Bush’s Law-Breaking

(Thanks to Selise for the YouTube)

Yesterday, Scottish Haggis went even further than he did the other day the other day in asserting that Bush broke the law when he instituted his illegal wiretapping program. He asserted flatly that Bush had violated two statutes (FISA and the National Security Act).

I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance.

But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President.

I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority.

But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure–really to get the confirmation of General Hayden as CIA Director–before the executive branch finally complied with the statute to notify the full Intelligence Committees.

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Feingold Slaps Down Bond’s, Mukasey’s, and McConnell’s “Tired Accusations”

Senator Feingold noticed the same thing I noticed today: Republican opponents of his amendments are mischaracterizing his amendments.

[Bond] referred to our concerns that somehow the rights and privacy could be affected by this bill as "tired accusations." I object to that characterization. I think that this is clearly the kind of thing we should be worried about and debating, but I’ll tell you what is a "tired accusation"–the notion that somehow our amendment would affect the ability of the government to listen in on Osama bin Laden–that is a tired and false accusation. The Senator from Missouri said that if Osama bin Laden or his number three man–whoever that is today, after the last number three man in al Qaeda was just wiped out–calls somebody in the United States, we can’t listen in on that communication unless we have an independent means of verifying that it has some impact on threats to our security from a terrorist threat. That’s what he claims. That’s what he claims, that we wouldn’t be able to listen in on that kind of conversation. That is absolutely false.

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FISA Debate Liveblog

Jello Jay on bulk collection (time from opponents, this is a Feingold amendment).

Feingold argues amendment will prevent bulk collection by requiring govt to have some foreign intell interest in bulk info.

I believe will interfere with legitimate intelligence activities. I do not believe it provides additional protections. There important classified reasons underlying that concern.

Why it’s unnecessary: Bulk collection would be unreasonable by Fourth Amendment. Bill provides that collections have to be in accordance with 4th Amendment. Minimization. Cannot primarily target a US person.

Feingold only requires that it certify that bulk intelligence has foreign intelligence interest. But it already requires that the collection is targeted at people outside of the US. Remedy does not improve upon protection in bill. I thus oppose.

Bond

A number of inaccurate statements. It’s not an understatement to say they could shut down our intelligence collection.

3979, Feingold and Webb.

Amendment says that FISA is supposed to be foreign to foreign. Focus on foreign to foreign is misplaced. We cannot tell if a foreign terrorist is going to be communicating with another terrorist in another country. It does no good to only collect foreign to foreign. Impossible burden that FISC judges told us shut down their review. [That’s news, saying that it was the review of foreign to US that overwhelmed the FISC.]

This would stop collection. One intell professional said it would devastate the collection. Targetnet versus dragnet.

Blah blah blah; I’m going to misrepresent Feingold’s bill, so I can rebut it.

[Wow. Just looked at the screen. Bond has a whole lot of lilac on. Perhaps he knows that way more people turned out last night in his state for Democrats than Republicans?]

I’m sure the FISC judges would appreciate the notion that they’re doing a bad job. [wow that was dishonest] Read more

McConnell and Mukasey Tell Half Truths

One benefit of the process the Senate is using to develop a FISA bill is that, by rejecting the SJC bill then considering amendment after amendment that had been part of the SJC bill, we begin to learn what the government really plans to do with its wiretapping program, as distinct from what it has said it was doing (see Ryan Singel making the same point).

Recall that the administration has claimed, repeatedly, that its only goal with amending FISA is to make sure it can continue to wiretap overseas, even if that communication passed through the US. We always knew that claim was a lie, but the letter from McConnell and Mukasey finally makes that clear. Even still, they’re rebutting Feingold’s amendments–which they say “undermine significantly the core authorities” of the bill–with a bunch of misrepresentations about them, to avoid telling two basic truths (which Whitehouse and Feingold have said repeatedly, but which the Administration refuses to admit).

  • They’re spying on Americans and refuse to stop
  • They intend to keep spying on Americans even if the FISA Court tells them they’re doing so improperly

As I explained, the letter includes a list of amendments that, if they were passed, would spark a veto. Those include three Feingold amendments:

  • 3979: segregating information collected on US persons
  • 3913: prohibiting reverse targeting
  • 3915: prohibiting the use of information collected improperly

All three of these amendments share one overall purpose–they limit the way the government uses this “foreign surveillance” to spy on Americans.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

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White House Writes Pre-Emptive Signing Statement on Exclusivity

(Thanks to Selise for the YouTube)

Feingold: The DNI envisions a government where, if it were technologically feasible, would listen in on every, every international phone call made by its citizens. And read every, every international email. Now that’s a police state, Mr. President, not the United States of America.

The letter from Mukasey and McConnell to Congressional leaders is basically a laundry list of FISA amendments with the Administration’s opinion on those amendments. Here’s the quick summary.

Amendments that would merit a veto:

  • [no number] no communication collected if the govt knows beforehand that it is to or from a person believed to be in the US
  • 3913: Significant Purpose test
  • 3912: Specific Individual Target test
  • 3915: Limits disseminating foreign intelligence information
  • 3907: Straight immunity
  • 3927: Substitution of govt for defendants
  • 3919: FISC review on immunity

Amendments it doesn’t like but that wouldn’t merit a veto:

  • 3930: 4-year sunset
  • 3920: Court review of compliance with minimization

Amendments it very much likes (surprise! They’re both Bond amendments)

  • 3941: Expedited FISA review
  • 3938: Add language on WMD

A pre-emptive signing statement on exclusivity

We understand that the amendment relating to the exclusive means provision in S.2248 is undergoing additional revision. As a result, we are withholding comment on this amendment and its text at this time. We note, however, that we support the provision currently contained in S. 2248 and to support its modification, we would have to conclude that the amendment provides for sufficient flexibility to permit the President to protect the Nation adequately in times of national emergency.

My takeaway? If the Administration says it would accept a minimization review, I say we make it a priority; it would vastly improve the bill. I would love to see the “significant purpose” amendment pass, and have it serve as a poison pill. This Administration won’t even commit that their wiretapping really relates to foreign intelligence! Hell, they might as well say that a minor purpose of wiretapping Democrats is foreign intelligence, because Democrats have different foreign policy goals than Republicans. Also, there are a few of Feingold’s important amendments that don’t appear here. If BushCo don’t oppose them, then by all means let’s have more protection and oversight.

More FISA Debate

Kyl up, talking about "liability protection" for the telecoms.

No, Kyl, it’s immunity.

"in good faith"

"historic tradition in such circumstances"

[no, historically, we expected telecoms to understand the difference between an AG and a White House Counsel]

"liability protection liability protection liability protection"

[I wonder what the focus groups were saying that they dreamt up this orwellian language?]

Shorter Kyl: It’s not really allowed to have the AG or the DNI on the floor of the Senate, so I’m just going to read this letter to you.

The President says you have to give liability to the telecoms or else.

"bipartisan bipartisan 13-2 liability protection liability protection 13-2"

Much that we cannot discuss, because if we did, then the whole point of liability protection immunity would be partly ruined. 

I hope my colleagues recognize the seriousness of this crap clothed in Orwellian language. 

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