I Should Go Away More Often
Do you think if I had stayed away a week, Cheney would have resigned too?
I’ll have some more comments once I clean the long road trip stink out of my hair.
Minimization
In this post, I compare what Director of National Intelligence Mike McConnell revealed yesterday about why Democratic bills amending FISA were unacceptable with the content of those bills. The comparison shows that DNI McConnell found it unacceptable to require the government to:
- List what the minimization procedures were that protect data collected from Americans
- Allow either a FISA judge or Congress to review its compliance with its own minimization procedures
In short, the government promises it will protect American persons’ data, but it refused to allow any meaningful oversight of that promise.
McConnell Reveals that Democratic Requirements on Minimization Are Too Harsh
Along with blabbing about the fictional "surgical" precision of the Administration’s warrantless wiretap program yesterday, Mike McConnell also revealed why the Administration found the Democrats’ bills to amend FISA unacceptable: because of some restrictions their bills made on minimization procedures.
So I walked over to the chamber and as I walkedinto the office just off the chamber, it’s the vice president’s office,somebody gave me a copy. So I looked at the version and said, ‘Can’t doit. The same language was back in there.’
Q: What was it?
A: Just let me leave it, not too much detail, there were things withregard to our authorities some language around minimization.
Minimization refers to what the Administration does with information that they collect on people in the United States when they get that information incidentally while tapping someone purportedly outside of the US. This matters to you, because it determines how the Administration will ensure that, if they collect your end of the phone call when you call Pakistan, they don’t get to keep or use any part of your end of the phone call that isn’t absolutely necessary for the spooks to interpret the wiretap.
McConnell Tries to Deny Withdrawing Support from the House Bill
Helpfully, McConnell also specified how he responded to the bills the Democrats and Republicans proposed leading up to August 4. McConnell is basically trying to dismiss Democratic claims that he reneged on his support for their bill and in the end sided with the Administration’s harsher bill.
So we kept going back and forth, so we sent up aversion like Monday, we sent up a version on Wednesday, we sent up aversion on Thursday. The House leadership, or the Democratic leadershipon Thursday took that bill and we talked about it. And my response wasthere are some things I can’t live with in this bill and they saidalright we’re going to fix them. Now, here’s the issue. I never thenhad a chance to read it for the fix because, again, it’s so complex, ifyou change a word or phrase, or even a paragraph reference, you cancause unintended …
Q: You have to make sure it’s all consistent?
A: Right. So I can’t agree to it until it’s in writing and my 20lawyers, who have been doing this for two years, can work through it.So in the final analysis, I was put in the position of making a call onsomething I hadn’t read. So when it came down to crunch time, we got acopy and it had some of the offending language back in it. So I said,’I can’t support it.’ And it played out in the House the way it playedout in the House. Meantime on the Senate side, there were two versionsbeing looked at. The Wednesday version and the Thursday version. Andone side took one version and the other side took the other version.The Thursday version, we had some help, and I didn’t get a chance toreview it. So now, it’s Friday night, the Senate’s voting. They werehaving their debate and I still had not had a chance to review it. So,I walked over, I was up visiting some senators trying to explain someof the background. So I walked over to the chamber and as I walked intothe office just off the chamber, it’s the vice president’s office,somebody gave me a copy. So I looked at the version and said, ‘Can’t doit. The same language was back in there.’
Q: What was it?
A: Just let me leave it, not too much detail, there were things withregard to our authorities some language around minimization. So it putus in an untenable position. So then I had another version to take alook at, which was our Wednesday version, which basically wasunchanged. So I said, well certainly, I’m going to support thatWednesday version. So that’s what I said and the vote happened in theSenate and that was on Friday. So now it rolled to the House onSaturday.
McConnell talks about three bills:
- The House version, which failed as H3356.
- The Thursday Senate version, S2911.
- The Wednesday version, which eventually passed as S1927.
From McConnell’s description, we know that he found several things about H3356 unacceptable, probably minimization and some other things. And we know that his primary complaint with S2911 was its requirements on minimization. By comparing what each of these bills require in terms of minimization, we can figure out what was unacceptable to the Administration–and therefore what we can presume they’re doing with data on US citizens and permanent residents.
Details on Cheney’s FISA Documents
It appears that Dan Eggen has gotten a copy of the letter from Dick’s office, detailing which documents he has that respond to FISA subpoenas. Among other things, Eggen’s report appears to suggest that the warrantless wiretap program operated illegally for 9 days (and possibly as many as 22 days) before it was amended to satisfy DOJ; previously, we had only know it had operated illegally for one day.
Here’re the relevant details:
Nonetheless, Coffin identified by date a series of memos and ordersthat "may be responsive" to the Senate committee’s demands. Theyinclude 43 separate authorizations from President Bush for the program, which had to be renewed approximately every 45 days beginning on Oct. 4, 2001.
Theletter also lists dates, from October 2001 through February 2005, for10 legal memoranda from the Justice Department. Although Cheney’soffice has copies of the memos, none of them "was rendered to theOffice of the Vice President," Coffin wrote.
The disclosure ofthe existence of the documents and their dates sheds new light on someevents surrounding the NSA program, including a now-famous legaldispute in March 2004. A half-dozen senior Justice officials threatenedto resign if the White House did not agree to change parts of theprogram that Justice lawyers had determined were illegal. Coffin’sletter indicates that Bush signed memos amending the program on March19 and April 2 of that year. The details of the dispute have never beenrevealed publicly. [my emphasis]
By my very rough estimate, there should have been about 47 reauthorizations of the program–so 43 is at least close, if the documents cover up until today (though they shouldn’t–they should only cover up until January 10, 2007, since that’s when the authorization of the program changed). But very important: Eggen doesn’t say whether or not those reauthorizations include the March 10, 2004 one that would prove–presuming it bears Bush’s signature–that Bush reauthorized the program after DOJ told him it was illegal. This was the document Sheldon Whitehouse was seeking when Gonzales was last before the Senate.
The line "Cheney’soffice has copies of the memos, none of them "was rendered to theOffice of the Vice President" may well be the dodge mentioned earlier–that Cheney is once again claiming that OVP (as distinct from the Vice President himself), is independent of Executive Office of the President. If that’s what this line is about, it suggests the dodge they’re trying to pull is to pretend none of this is in OVP, so it’s all safely ensconced in EOP in some kind of faerie vault where they keep all the evidence of criminal wrong-doing.
And then there are details showing Bush signed memos amending the program on March 19 and April 2. Here’s how that fits into the chronology from Robert Mueller:
Schloz Shortened
From TPMM, though no details about why or when:
Bradley Schlozman, a former Justice Departmentofficial who was at the center of the U.S. attorneys scandal and isunder investigation by the Departments inspector general for hisalleged efforts to politicize the Civil Rights Division, has finallyleft his post at the Department.
And while we’re counting people leaving DOJ, one of the good guys is leaving, too:
DLA Piper US LLP today announced that Peter Zeidenberg, a leading trialattorney, has joined the firm as a partner in the Washington, D.C.office. He comes to the firm from the U.S. Department of Justice (DOJ)where he served as trial attorney in the Public Integrity Section ofthe Criminal Division.
In his capacity as Trial Attorney,Zeidenberg was engaged in the investigation and prosecution of local,state and federal public officials. His trial experience includesprosecution of some of the highest profile criminal cases handled bythe DOJ.
In addition to winning the "Who’s Your Daddy" contest at the Libby trial, Zeidenberg won the first trial conviction, of David Safavian, in the Abramoff case. Our country will miss the services of Zeidenberg much more acutely than those of Schlozman.
Documents from Dick, not Bush?!?!?
As ThinkProgress reports, the Senate Judiciary Committee was about to issue subpoenas on the warrantless wiretapping program. And then Cheney told Specter no. And Specter did what Cheney told him to do. Lesson number 383,947 in why Specter is the most pathetic piece of haggis in the Senate.
In fact, we were about to issue subpoenas then and one of thesenators came to our meeting and said that the vice president had metwith the Republican senators and told them they were not allowed toissue subpoenas.
Not quite sure that’s my understanding of the separation of powers, but it seemed to work at that time.
I’m just guessing outtamyarse, but what do you want to bet the subpoenas in question were ones Schumer wanted to issue to John Ashcroft, James Comey, and Jack Goldsmith back in February 2006? You know, the ones that would have elicited the hospital story from Comey before the PATRIOT Act got renewed? You think maybe Cheney told Specter that he couldn’t solicit the very same testimony that has gotten the Administration in such hot water this year?
Nah.
Senate Friends
I only caught the tail end of Pat Leahy’s uneventful press conference. But apparently, I didn’t miss much. The deadline for the White House still stands–but they’re going to miss it. And Leahy–he says he can’t do anything until everyone returns in September.
But there is something he can do now. Why don’t those on the Senate Judiciary Committee–and anyone else in the Senate who’d like to join in–submit a friend of the court brief in support of the ACLU’s motion to unseal the FISC rulings. It seems that the Administration’s defiance of a Senate subpoena–for which they’re not making a blanket claim of privilege–is reason enough to intervene. It makes the issues the ACLU raised more pressing, since the Administration is defying normal oversight. And it supports the ACLU argument that the Administration is playing games.
Is there a downside to this? Any reason it’d not be beneficial?
Update: Oh, one thing I forgot. Twenty-seven members of Congress signed on to an a.c. brief to the Pentagon Papers case. A very close parallel to a lot of the issues here.
The ACLU Motion
Now that I’ve finally gotten around to the ACLU motion to unseal the FISC opinions on the warrantless wiretap programs, I’d like to recommend the original motion submitted by the ACLU. The motion catalogs a good deal of the Orwellian games the Administration is playing and collects, in one place, many of the Administrations evasive tactics regarding the warrantless wiretap program. [I’ve removed all citations from the excerpts below.]
Pushing the Envelope
For example, the motion captures the way the Administration seems to have played the FISC, and with FISC, the clock.
The President reauthorized the NSA Program repeatedly between 2001 and 2007. In January 2007, however, just days before the United States Court of Appeals for the Sixth Circuit was to hear the government’s appeal from a ruling that had found the NSA Program violative of FISA and the Consitution, the Attorney General stated in a letter to the Chairman and Ranking Minority Member of the Senate Judiciary Committee that "any surveillance that was occurring as part of the [NSA Program would] now be conducted to subject to the approval of the Foreign Intelligence Surveillance Court." In the same letter, the Attorney General explained that the changed was made possible because of orders issued on January 10th by "a Judge of the Foreign Intelligence Surveillance Court." The Attorney General characterized the January 10th orders as "complex" and "innovative," and in subsequent testimony to Congress he stated that this Court issued them after the executive "pushed the envelope." He also stated that it had taken "some time for a judge to get comfortable" with the government’s proposal.
If the FISC wasn’t already cranky about being used by the Administration, the ACLU reminds them that they pushed them to breaking point in January, overstepped that breaking point, then complained after FISC objected.
Fred’s Delays and FISA
[See the update below]
I never did comment on the FISC order for more briefing on the question of whether it–the Court–should turn over to the ACLU the Court’s decisions ruling parts of the warrantless wiretap program illegal.Â
While the order is signed by the Presiding Judge Colleen Kollar-Kotelly, I had a deja vu of the request Judge Walton (who joined the FISC about mid-way into the events that the ACLU hopes to reveal with its motion to unseal these orders) made inviting the parties in the Scooter Libby trial to submit briefs about whether or not Libby’s sentence could be legally commuted if he had never served a day of jail time. It was as if, having seen the results of a lot of hard work disappeared instantaneously, Walton was hoping someone would find a way to negate that process.
The FISC is in a similar position. After two unfavorable rulings, the Administration has decided to take its toys and go home; the amendments to FISA basically turn the FISC into a rubber stamp for the Administration. So the Court’s call for more briefing seems like a hopeful attempt to restore the quaint separation of powers mandated by the Constitution.
At any rate, I’m wondering whether the FISC’s efforts to restore that balance will once again fall victim to the Administrations pre-emptive temporal jujitsu. The deadlines the Court set for briefs were:
Administration response: August 31, 2007
ACLU reply: September 14, 2007
Yet today’s WaPo reports that the Administration has a deadline, today, that they’re going to miss.
The Democratic Cave
Pow wow linked to this Jonathan Alter article that provides invaluable background to selise’s diary describing how the FISA amendment vote went down in the House. Here’s how selise chronicles the events of August 3:
Friday, Aug 3, 2007 (floor summary)
At 1:19 PM the House took up H.Res. 600 and it was passed (228-196) at 5:14 PMafter heated debate. In the midst of that debate, it finally emergedthat the FISA bill to be considered if made in order by passage ofH.Res. 600, would be H.R. 3356. (see congressional record pages H09663-H09675)
At 5:11 PM, Spencer Ackerman of TPM reports, "Bush Nixed Dem-DNI FISA Deal"
At 7:20 PM, John Conyers moved “to suspend the rules and pass the bill (H.R. 3356).†After debate, H.R.3356 failed at 8:58 PM by a vote of 218 in favor, and 207 opposed after debate. (see congressional record pages H09685-H09695)
During the debate, Nancy Pelosi stated that:
Without any reference to the current Attorney General, and therewill be some who might question his judgment, I don’t want AlbertoGonzales to have this much power, but in a Democratic administration, Iwould not want that Attorney General to have this much power. It shouldbe a different branch of government.
So we have seen them come up with these pieces of legislation thatsubstitute the Attorney General for the FISA courts. It is just totallyunacceptable.At 8:05 PM the House Rules Committee posted a Notice of Action which included H.Res.613 Rules Committee Report #110-298 and H.Res.614 Rules Committee Report #110-299.
H.Res.613, would have, like the previous H.Res.600, allowed theSpeaker to entertain motions that the House suspend the rules for anunspecified FISA amendment. Passage of a FISA amendment via thisresolution would require a 2/3 vote.
H.Res.614, on the other hand, would allow a simple majority vote forconsideration of an unspecified FISA amendment on Saturday, Sunday orMonday (August 4th through the 6th). Neither of these resolutions wouldbe used.
And here’s the background Alter offers:
Electronic Surveillance
James Risen and Eric Lichtblau have a report today supporting what many around these parts have suggested–that one effect of the amendments to FISA is to expand the kinds of surveillance the Administration can do.
Broad new surveillance powers approved by Congress this month couldallow the Bush administration to conduct spy operations that go wellbeyond wiretapping to include — without court approval — certain typesof physical searches of American citizens and the collection of theirbusiness records, Democratic Congressional officials and other expertssaid.
[snip]
“This may give the administration even more authority than peoplethought,†said David Kris, a former senior Justice Department lawyer inthe Bush and Clinton administrations and a co-author of “NationalSecurity Investigation and Prosecutions,†a new book on surveillancelaw.
Several legal experts said that by redefining the meaningof “electronic surveillance,†the new law narrows the types ofcommunications covered in the Foreign Intelligence Surveillance Act,known as FISA, by indirectly giving the government the power to useintelligence collection methods far beyond wiretapping that previouslyrequired court approval if conducted inside the United States.
Thesenew powers include the collection of business records, physicalsearches and so-called “trap and trace†operations, analyzing specificcalling patterns.
Note that David Kris is pretty smart about these issues, so if thinks this is possible, then it probably is.
I’m also struck by the inclusion of trap and trace operations in this list. Somewhere, I expect us to be discussing data-mining again, and with trap and trace we’re getting closer to data-mining.
In addition to reiterating some of the concerns that have been raised here and in other blogs covering this, Risen and Lichtblau give sketchy details of two meetings that have occurred since the passage of the bill, one I didn’t know about…
These new powers are considered overly broad and troubling by someCongressional Democrats who raised their concerns with administrationofficials in private meetings this week.
[snip]
The senior intelligence official acknowledged that Congressional staffmembers had raised concerns about the law in the meetings this week,and that ambiguities in the bill’s wording may have led to someconfusion. “I’m sure there will be discussions about how and whether itshould be fixed,†the official said.
