What Should We Call the Telecoms?

I’m in a wretched mood because Sears just called and told me, after assuring me last week they could get me a fridge this week, and after they sent me a badly damaged fridge yesterday, and after then promising I’d have a fridge today, then kept me on the phone for an hour and a half to tell me they won’t actually have my replacement fridge to me until Monday and oh by the way would you like a gift card for the trouble of having to unload and reload three different fridges so you can shop at our crappy store some more?

I tell you, always buy local or you’ll end up looking like a chump like me.

So I thought I’d put my crappy mood to some use to try to brainstorm the appropriate moniker for what the telecoms after they receive their Congressional pardon sometime next week. They won’t really be "pardoned felons," because we never got to the point of a jury trial to certify them as felons. I guess "pardoned lawbreakers" might work, but it’s not very catchy.

Once we figure out a catchy name for what you call corporations after the President and Congress decide to put aside separation of powers in order to make sure they avoid any consequences for their law-breaking, I figure we can do some google-bombing and make their legislative win a PR disaster.  

Obama Replied

To my letter to him. He told me to fuck off.

Statement of Senator Barack Obama on FISA Compromise

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year’s Protect America Act.

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. Read more

A Letter to the Next President of the United States

Senator Obama:

In his recent opinion on the Boumediene case, conservative Justice Anthony Kennedy reminded the Executive and Legislative branches that we cannot suspend the Constitution in times of crisis.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

He went on to remind "the political branches" that the Article III Courts must not be turned into a mere rubber stamp for the Executive Branch–particularly when, as with habeas corpus, those Courts review laws designed to serve as a check on the Executive Branch.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

Ultimately, the Supreme Court found aspects of the Military Commissions Act unconstitutional because it tried to limit the review of Article III Courts to mere review of whether the Administration had complied with its own procedures, and not a real review of the legality of the detention of men at Gitmo.

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

Yet this is precisely the kind of procedural review that the current FISA bill envisions. Read more

The FISA Bill

Here it is.


As Glenn says, the "immunity" provision here sucks ass. Here’s the operative language:

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that


(4) the assistance alleged to have been provided by the electronic communication service provider was —

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

Contrary to what the WSJ suggested, this provision puts no restrictions on whether the directives were authorized by anyone but the President–all it takes to get off scott free, in this bill, is for the President to have said the program was legal, regardless of whether it was or the whether the telecoms should have questioned whether the directives were legal.


The minimization rules on this still suck. FISC gets to review the procedures themselves, to make sure they will adequately protect US persons’ data. But the FISC does not get to review whether the government is doing what it says it’s doing with regards to minimization–the AG and the intelligence branch still get to do that.

Wiretapping Overseas

This bill provides significantly more protection for Americans traveling overseas, requiring an extra level of review before tapping an American traveling abroad.

Wiretapping in the US

This bill has slightly more protections for Americans in the US, prohibiting wiretaps if a communication is intended entirely for people within the US. That’s a slight improvement, of course, because the bill still allows the collection of information on–say–an email in which one person is outside the US. Read more

Details on the FISA “Compromise”

CQ and WSJ are finally giving more details about what Steny and Jello Jay have concocted with their Republican buddies and telecom lobbyists. CQ confirms what we’ve been hearing–that the immunity would basically consist of a District Court reviewing the authorization, with almost no way to rule against the telecoms.

One source said the federal district court deciding on retroactive immunity would review whether there was "substantial evidence" the companies had received assurances from the government that the administration’s program was legal.

And it appears that Steny’s grand bargain consists solely of prospective review of the programs, rather than review as the program is being implemented.

Under the prospective deal, the secret court created by the original law would get to review, in advance, the process by which the administration chooses foreign surveillance targets who may be communicating with people in the United States.

Of course, note the word "process" here–it sounds like FISA still doesn’t get to review the actual choices.

There’s an interesting wrinkle in the WSJ version, though, that I find notable. The telecoms would have to prove that either the AG–or an intelligence agency head–signed off on the wiretap requests.

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed. [my emphasis]

That’s an interesting detail, because up until now, we’ve been told that the Attorney General approved this program, with the sole exception of the period immediately following the hospital confrontation on March 10, 2004. After that confrontation, the SSCI had reported, the White House Counsel (yup–Alberto Gonzales) approved the program for a period of not more than 60 days. Read more

The FISA Shaft Is Underway

As you know, the FISA Amendments Act has been being negotiated behind closed doors by Steny Hoyer, Kit Bond and friends for some time now. See here and here. Well, the action is coming a little faster than we all anticipated.

It now appears quite clear that either the House will vote on the War Funding Supplemental and then go to the FISA Amendments ACT or, and it is not clear at this time what the odds on this are, link the two bills and vote on both at the same time. Here is what we do know. House has finalized their war supplemental bill, and it appears to be a go for a vote tomorrow (Thursday). So, the best evidence is that the vote on FISA will be on Friday June 20, and may be as early as Thursday night. There is precious little time left to make our voices heard.

Here is what Liz Rose from the ACLU gave me for publication:

One thing bugging me is that we do not have the Hoyer draft and neither do reporters; and yet some reporters are believing every single word Hoyer says. Feingold, Leahy, Conyers do not have the draft; the only people who do have it are Rockefeller, Bond, and Hoyer. People who are for the proposal. And yet I have not yet heard anyone question why that is. No sunshine and no one demanding to see the details.

Plus, even if leadership will vote with us, and act like they are on our side, the truth is they control the calendar. Nothing happens unless they want it to. It is so cynical and calculating. And it seems that the unwritten story is that this whole FISA cave in is really all about the DCCC and their worries about freshmen dems getting re-elected. They are not afraid of terrorists — they are afraid of ads about terrorists. If they were really afraid of terrorists they would just extend the orders. But all they really want is to reward the big telco contributors and get more checks for their campaign coffers. It is all political.

But I think they are wrong. Fear mongering did not help Guiliani win. And remember how good the House Dems were when they stood up on FISA and said no to the senate bill?. I will keep you up Read more

Steny’s Discharge

Steny Hoyer wants you to believe he’s having a discharge problem.

But he’s not.

Which is kind of weird, don’t you think? That Steny would try to excuse his own cowardly actions because of someone’s–or someone’s lack of?–discharge, when, as sympathetic as you might be to Steny about his discharge problem, you know it’s just an embarrassed excuse. 

And frankly, you realize that the Constitution trumps Steny’s discharge problem anyway? 

Honestly, now, if Steny’s having a bunch of so-called Democrats coming to HIM with their own problems with civil liberties, just five months short of the election, we Democratic voters ought to know about that. With names attached.

But right now, Steny’s got nothing. But his own claimed discharge problems. 

What Databases Are You Using? We Won’t Tell…

I’ll be in my Scottie McC daze for one more day yet, but I wanted to point those of you with free time to this Ryan Singel post and the collection of documents he’s reporting on. The EFF just got a slew of documents recording the questions the FISA Court asked of the FBI.

Does the FBI track cellphone users’ physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database? Does the FBI’s wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?

That’s what the nation’s Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau’s counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.

I’m most intrigued (though not at all surprised) by this question.

In October 2005, the court also asked the FBI to explain how it stored "raw" foreign-intelligence wiretap content and information about Americans collected during those wiretaps.

The government is supposed to "minimize" — that is anonymize or destroy — information gathered on Americans who aren’t the targets of a wiretap, unless that information is crucial to an investigation.

The court wanted the FBI to explain what databases stored raw wiretaps (.pdf), how those recordings could be accessed, and by whom, as well as how minimization standards were implemented.

The documents don’t reveal the answer to that question. The FBI did not respond to a request for comment by press time.

The question came, of course, just months before the NYT broke the story on the illegal wiretap program. You think maybe there’s a connection?

The FISA Fix and Obama’s Profile In Courage Leadership Moment

Whether by design or random chance, there is so much information, on so many and diverse subjects, flooding the politically astute citizen currently that it is hard to keep track. It seems like we are drawn from one crisis and seminal issue to another with the passing of not every day, but with the passing of every hour. And yes, they are all pretty much that important; but there are some that portend not just how we do in our lives, but who we are and what we stand for in the first place. Chief among those is the question of whether we are a nation of men freelancing in the public trough of goodwill, or a nation of laws in which men operate within the rule of law and under the edicts and guidance of our founding fathers and the Constitution they bequeathed us.

One of these issues has been at the forefront of out conscience for nearly a year now; the issue of how to improve the Foreign Intelligence and Surveillance Act (FISA) for the future we face and how to address the criminal violations of FISA we have suffered in the past. How we resolve FISA will go a long way indeed in indicating whether we are a nation of admirable laws or, alternatively, of mere opportunistic men.

The three critical parts of FISA that are the subject of the heated and protracted fight over reform are exclusivity, minimization and retroactive immunity. Simply put, exclusivity refers to the relative degree in which the resulting FISA law will control this area of the law. The original FISA statute was designed to be the

…exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted.

As Marcy Wheeler has pointed out however, the Bush Administration performed a terminally disingenuous end run around the exclusivity mandate of FISA via one of John Yoo’s made to order faux legal opinions. The exclusivity provisions must be made impervious to such sophistry and with sufficient teeth to insure future compliance by the executive branch.

Minimization is the word for the procedures the government uses to

remove and (eventually) delete any data from US persons collected incidentally in the course of surveilling someone overseas. If we could be guaranteed that minimization procedures are sound, then the whole debate over Read more

The Yoo “Exclusivity” Opinion: More Outrageous Hackery

After significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."

Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:

Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.

As it happens, DOJ actually appears to be somewhat cognizant of the legal hackery of this Yoo opinion. When he learned DNI had declassified the passage from the opinion, Brian Benczkowski sent a letter to Senators Whitehouse and DiFi, trying to claim that Yoo’s opinion is unremarkable:

The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President’s constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties.

Read more