June 4, 2020 / by 

 

The FISA Bill

Here it is.

Immunity

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

[snip]

(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.

Minimization

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.

Use of Information

The bill addresses a problem that Russ Feingold identified–what happens to data collected in a program that the FISC subsequently finds improper. Feingold wanted the goverment to have to get rid of this data. This bill strikes a middle ground: it prohibits the government from using such data in a trial or other official hearing. But it still gets to keep the data improperly collected.

Exclusivity

The bill does contain a reasonable exclusivity provision, which virtually guarantees they’ll get DiFi’s support:

Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.

Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United Staes Code, shall constitute an additional exclusive means for the purpose of subsection (a).

This would seem to prevent the John Yoos of the world from pretending that the AUMF constitued authorization to wiretap.

Review of the Illegal Program

The bill takes an idea included in the House bill–a review of the program to find out what really happened–and dumps that review into the lap of the Inspectors General of the various agencies (the House bill had called for a bipartisan commission). The OPR review of the authorization of the program is included in this. An IG picked by the President and approved by the Senate will, a year after the bill is passed, present an unclassified report on the program (with classified annex). That review cannot name anyone in the private sector involved in the illegal wiretapping.

I’ll work on fleshing this out with the bill’s language–let me know what you see in the bill in the thread…


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.

As SSCI points out, the telecoms would be immune from prosecution if they had been authorized to conduct wiretaps under 18 U.S.C. § 2511(2)(a)(ii).

Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain otherofficers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii).

I’ve bolded those words, "or certain other officers," to emphasize that Jello Jay and the Republicans didn’t actually specify what the law says. So let’s look at the law, shall we?

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

The law says that only the AG or someone specified in 2518(7) may provide the telecoms with the certification that their actions are legal. Here’s what 2518(7) says:

(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— [my emphasis]

So the only people who may give telecoms the authorization that their eavesdropping is legal are: the AG, the DAG, the AAG, and any principal prosecuting attorney, such as a USA [Actually, maybe this means a State AG].

Yet, as the report informs us, for a period of time (a period of time, I might add, at some remove from 9/11), none of those people had signed off on the wiretapping program. After the Deputy Attorney General, as the Acting Attorney General refused to endorse the legality of the program, Alberto Gonzales authorized it.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

But Alberto Gonzales was not then one of the named people who could authorize such wiretaps. He was an attorney, but not a prosecuting attorney. In fact, at the time, he was not a law enforcement officer at all (unless you count someone enforcing Cheney’s law as a law enforcement officer).

So now we’re to believe that it was not Gonzales’ say-so that made the program "legal," it was the say-so of the head of an intelligence agency (either NSA or CIA)?

How come I get the feeling that J Edgard Hoover would love this kind of immunity, that said that the President and an intelligence head could decide to spy on citizens if they wanted to?

Christy says the bill number will be HR 6304, but I can’t find it yet on Thomas.


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 to date. Thanks. Liz

She is right. We, and more importantly, the Constitution, are being sold out for rank political posturing. Pitiful state of affairs that.

Here is the latest scheduling information from the House I can find.

Subject: House Approps 2008
TRACK BILLS: House Approps 2008
Draft Bill — Fiscal 2008 War Supplemental Appropriations (House)
Official Title: Fiscal 2008 War Supplemental Appropriations (House)
Cosponsors: No reported cosponsors
Next Scheduled Action: June 19, 2008 — Scheduled action — House Rules Committee (Chairman Slaughter, D-N.Y.) will consider a rule for floor debate for pendiing legislation. Time TBA, H-313 Capitol Bldg. New
NEW on this bill
Bill Actions
June 19, 2008 — Scheduled action — House Rules Committee (Chairman Slaughter, D-N.Y.) will consider a rule for floor debate for pendiing legislation. Time TBA, H-313 Capitol Bldg. New

So, for any Wheelers and Lakers, if you find better information, please post in the comments. Maybe we will have a longer period to act in, but history shows that we must assume the worst. That means the FISA vote, the big kahuna, is going to be Friday, and maybe even Thursday night. Heave Ho.


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 wiretapping would be easier because we could rest assured that if the NSA picked up anything on a US person it didn’t have a warrant for, it had to destroy it. That would mean that Americans could trust that they would only be wiretapped with a warrant approved (eventually, anyway) by a judge.

We live in an ever complex society served by ever more sophisticated communication means and devices. Even when our government takes it’s duties to protect the privacy and fundamental Constitutional rights of the citizenry seriously, which has certainly not been the case over the last seven plus years, it is impossible to not incidentally and accidentally collect up information that should not be so obtained. Getting minimization right means that the government will not wrongfully retain and/or use inappropriately obtained information and data.

Retroactive immunity is by far the most easily understood of the three concepts. The sole question is whether or not approximately forty lawsuits, that have already been consolidated into one general whole in the Northern District of California, for the convenience and economic efficiency of all concerned, will be dismissed in order to cover up the misdeeds and crimes of the Bush Administration and the rich multinational phone companies that conspired with them, or whether they will be allowed to legally proceed so that we may all learn the truth about what has been done in our name and accountability therefore assigned. It is really, at the root, that simple; truth and accountability or craven coverup.

The desperate push on FISA by the Bush Administration, complicit and subservient Republican Congressional leaders, and their telco partners is about to explode onto the forefront again. You are already starting to see the advance seeding by proponents seeking to seed the public with fear and alarm that if we don’t get on board with the whims and desires of the Bush Administration we will be exposed to terrorism and all die. In direct response, Professor Martin Lederman performs a beautiful technical dissection of this fraudulent scare tactic in full detail here.

No, the FISA fix is not about "listenin to al-Qaida to protect America from terrists" as George Bush et al. would have you believe. We have been doing that, and are going to continue to do that; and there is no disagreement whatsoever on that point. Rather, how we resolve FISA is what the disagreement is about, and it is a glaring symbol of what we are, and are going to be, as a country. We are either a nation of laws that protects citizens and their right to seek redress for being wronged by their government and it’s agents, or we are a nation of self serving men like George Bush and Dick Cheney that can, and do, get away with whatever illegal and immoral acts they desire.

Two men that have recognized that fact and stood resolutely and heroically from the outset are Senators Chris Dodd and Russell Feingold. Today, they remind us of what leadership truly is by way of a joint letter to the Democratic Leadership currently controlling the shape of the FISA fix process coming to a head.

As you work to resolve differences between the House and Senate versions of the FISA Amendments Act of 2008, we urge you to include key protections to safeguard the privacy of law-abiding Americans, and not to include provisions that would grant retroactive immunity to companies that allegedly cooperated in the President’s illegal warrantless wiretapping program.

With respect to immunity, we are particularly concerned about a proposal recently made by Senator Bond, and want to make clear that his proposal is just as unacceptable as the immunity provision in the Senate bill, which we vigorously opposed. As we understand it, the proposal would authorize secret proceedings in the Foreign Intelligence Surveillance Court to evaluate the companies’ immunity claims, but the court’s role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received "a written request or directive from the Attorney General or the head of an element of the intelligence community … indicating that the activity was authorized by the President and determined to be lawful."

In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

As we have explained repeatedly in the past, existing law already immunizes telephone companies that respond in good faith to a government request, as long as that request meets certain clearly spelled-out statutory requirements. This carefully designed provision protects both the companies and the privacy of innocent Americans. It gives clear guidance to companies on what government requests it should comply with and what requests it should reject because the requirements of the law are not met. The courts should be permitted to apply this longstanding provision in the pending cases to determine whether the companies that allegedly participated in the program should be granted immunity.

Take a good look; read the whole letter. This is what real leadership looks like. If Pelosi, Hoyer, Reid, Rockefeller, and Reyes all had even half of the "right stuff" that Dodd and Feingold possess, we would not need to have this discussion. But, alas, they do not and, as a result, our collective backs are again against the wall on FISA. More, and higher leadership needs to occur.

Barack Obama has fought long, hard and well to win the chance and right to lead both the Democratic Party and the nation as a whole. It is time for him to so lead, and his leadership will make the difference in this fight if he is willing to take the mantle. I am not the first to call on Mr. Obama to step up to the plate. Last week, when the news first broke that HPSCI Chairman Reyes was indicating his, and his fellow Democratic House Leaders’, willingness to compromise cave and pass the Bush/Cheney FISA dream, dday at Digby’s Hullabaloo made a very eloquent plea:

I congratulate Barack Obama on his primary win and think he has the opportunity to bring forward meaningful change in America. In fact, he can start today. He can go to the well of the Senate and demand that the party he now leads not authorize new powers to spy on Americans and immunize corporations who broke the law with their illegal spying in the first place.

Barack Obama could put an end to this today if he wanted. He could tell his colleagues in the House and the Senate that they should not work so hard to codify into law what his opponent is calling for – the ability for an executive to secretly spy on Americans.

This really is identical to George Bush’s position and now the Democrats in the House are signaling their willingness to go along with it. Obama positions himself as a new kind of Democrat who wants to change Washington and has a background as a Constitutional scholar. There is no other issue which both shows the rot of the Democratic leadership and their disinclination to enforce or even recognize the Constitution than this one.

Truer words were never spoken. The time is now Mr. Obama, and you are the man. Even the Kennedys have put Mr. Obama up as a John F. Kennedyesque figure. Well, it is time for a Profile In Courage. And not just by Mr. Obama, but by all of the Democratic Leadership. The cause is just; the time is now. Limber you fingers. Oil your fax machines. Let Mr. Obama know that when he leads on this critical issue that we will not only follow, but will have his back. This is who we are; this is what we stand for. Let him know. NOW!

UPDATE II: The ground is shifting already. From The Hill:

Congressional Republicans are reviewing a Democratic proposal to break the logjam on electronic-surveillance legislation by allowing federal district courts to determine whether telephone companies seeking legal immunity received orders from the Bush administration to wiretap people’s phones.

That differs from a plan that Republicans, with support from the White House, floated right before Memorial Day that would give that authority to the secret court that operates under the 1978 Foreign Intelligence Surveillance Act (FISA). In both cases, the courts would not decide whether those orders constitute a violation of the law, according to people familiar with the language. The plan was floated by House Majority Leader Steny Hoyer (D-Md.) and has the support of Sen. Jay Rockefeller (D-W.Va.), the chairman of the Intelligence Committee.

“While several issues still remain, Sen. Bond believes he and Hoyer are making progress on crafting an ultimate compromise and remains hopeful that a bill to keep American families safe can be signed into law before the August expiration moves the intelligence community back to 1978,” said Shana Marchio, communications director for Sen. Kit Bond (R-Mo.).

Rockefeller said he is “mildly optimistic” that the plan could yield agreement, and added that the status of negotiations is “getting pretty darn good.” (Emphasis added)

The Democratic Leadership takes us for fools, and treats us accordingly. They have taken the Republican/Bush-Cheney White House dream plan and substituted the words "District Court" for "FISA Court" and run it up the flag pole to see if we will salute. Even Jello Jay Rockefeller seems like he might realize that this is pitifully weak and lame and is just hoping the citizenry is stupid enough to acquiesce. Let me repost the applicable paragraph from Senators Dodd and Feingold that addresses this latest ruse, with the only changes necessary:

In other words, under the Bond Democratic Leadership’s proposal, the result of the FISA District Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA District Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

This willingness of the Democratic Leadership to belligerently betray the trust and best interests of their constituents, party and country is simply stunning. This is weak, shameless and traitorous leadership at it’s craven worst.
(h/t MadDog)

UPDATE I: Sen. Obama Phone (202) 224-2854, FAX (202) 228-4260 Courtesy of Rosalind in comments.


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.

Then, after ignoring the question of whether Yoo’s interpretation of "reasonably possible" was itself reasonable, Benczkowski went on to stress that DOJ gave up Yoo’s opinion in 2006 and replaced it with more hackery.

However, as you are aware from a review of the Department’s relevant legal opinions concerning the NSA’s warrantless surveillance activities, the 2001 statement addressing FISA does not reflect the current analysis of the Department. Rather, the Department’s more recent analysis of the relation between FISA and the NSA’s surveillance activities acknowledged by the President was summarized in the Department’s January 19,2006 white paper (published before those activities became the subject of FISA orders and before enactment of the Protect America Act of 2007). As that paper pointed out, "In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute [in the AUMF] had confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland."

As he did with Yoo’s opinion, Benczkowski also ignored the question of whether this claim–that the AUMF authorized Bush to ignore FISA’s exclusivity provision–was reasonable, particularly when Tom Daschle, who was Senate Majority Leader when the AUMF was passed, insists that Congress specifically refused to give the President war powers within the US.

As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

Pretty much, Benczkowski is stuck in the unenviable position of trying to claim the warrantless wiretap program was legal, when it clearly wasn’t. He ends his letter with a pathetic plea to the Senators not to circulate Yoo’s interpretation of exclusivity by itself.

Accordingly, we respectfully request that if you wish to make use of the 2001 statement in public debate, you also point out that the Department’s more recent analysis of the question is reflected in the passages quoted above from the 2006 white paper.

As if that makes ongoing DOJ hackery defensible.


FISA Update (And Why Is John Boehner Crying Again?)

The week starts off with Main Core, Glen Fine’s much anticipated IG Report has been released, today is another state election (Kentucky) in the most hotly, and closely, contested primary that many of us can remember, and, now, the tragic and deflating news that Senator Ted Kennedy has a malignant brain tumor. Oh yeah, and an extended holiday weekend and Congressional recess is at hand in a couple of days. This type of situation can mean only one thing – FISA is bubbling back to the surface. Heck, the only thing missing from this equation is a terror alert; but then again, the week is still young.

First off, where we stand. The news is not all bad, but it sure isn’t all good either. From the National Journal (subscription required-sorry):

House Majority Leader Hoyer had previously said he wanted to reach a compromise on FISA by the Memorial Day recess. GOP and Democratic aides cited several reasons why that has not happened. Late last week, Hoyer sent Senate Republicans a list of provisions that House Democrats want included in a final bill, aides said. Hoyer’s proposal took Senate Republicans by surprise. A Republican aide called the proposal "a step backward."

Before Hoyer’s proposal, Senate Republicans believed that only two main issues needed to be resolved, and that they were close to reaching an agreement on them with House Democrats. One issue dealt with having the secret FISA court determine if the telecom firms should be granted retroactive immunity from lawsuits for their role in the administration’s warrantless electronic surveillance activities since the Sept. 11, 2001, terrorist attacks. The second issue centered on allowing the FISA court to review the administration’s procedures and certifications for surveillance operations. "We’re basically there on those two," an aide said.

But Hoyer’s proposal included other provisions, some of which had already been defeated during votes in the Senate, aides said. One provision, for example, would allow the FISA court to assess if the government is complying with so-called minimization procedures, which limit the amount of information collected and stored on Americans incidental to the surveillance target. Another provision contains language making FISA the exclusive means under which the government can conduct electronic surveillance.

The good news is that it appears that there is little chance that anything is going to be attempted before the Memorial Day recess. The other good news, and I will be very pleasantly surprised if it maintains truth, is that Hoyer is really pressing minimization and exclusivity. These are critical concepts above and beyond the retroactive immunity part that we standardly focus on, see Marcy’s discussions, among others, here and here. These are important concerns, and Hoyer and his working crew are to be commended for keeping these concepts part of the bargain.

The bad news, however, is, as I have long feared, that the compromise involves allowing retroactive immunity, but submitting the determination on it to the jurisdiction of the FISA Court. And Pelosi is firmly on board for this:

She told several leading House liberals — including House Judiciary Chairman John Conyers and Reps. Maxine Waters, D-Calif., and Barbara Lee, D-Calif., — in a closed-door meeting that included Blue Dogs that a compromise would likely be needed on the issue of granting immunity to the telecoms.

Pelosi is said to have argued this was needed to get a guarantee that the regulation of electronic eavesdropping would be the exclusive purview of the FISA court. Leadership and Blue Dog sources said Pelosi has made it clear that exclusivity is the most important issue for her in negotiations heading forward.

There is no question but that minimization and exclusivity are critical elements going forward, and Pelosi is surely correct that they are more important on FISA itself going forward. But it is weak, shameless and traitorous leadership that is willing to sanction and ratify the most breathtakingly egregious and widespread lawbreaking and mass violation of the citizen’s rights to privacy in the history of the Union in order to get it. Especially when they don’t have to, and are doing so out of raw electoral political concerns. Let’s face it, the status quo is more than functional for the next seven months until a new Congress and, hopefully, a new administration takes office. There is no reason in the world that the House should not do what they have recently done, pass a good bill and, if the Senate Republicans block it or Bush vetoes it, so be it; then tar and feather the Republicans for the act.

The FISC is too much of a rubber stamp for Administration requests, the whole application to, and determination by, the FISC would undoubtedly be done ex-parte and the whole thing classified and secret (thus protecting Administration duplicity). This is no way to go. And here is one more thing to chew on in this regard. In over 25 years of existence, the FISC has outright denied a Government application a grand total of 4 times. In many of those 25 years, the FISC was more liberal and protective of privacy rights than it is now. And here is the clincher. By my estimation, two FISC Judges, James Carr and Nathanial Gorton, had their terms expire last Sunday, and we have no idea who Chief Justice John Roberts is appointing to replace them. It is a pretty safe bet that it will be Bush compliant judges though, which certainly doesn’t augur well for immunity determinations. Giving the FISC the authority to impose retroactive immunity is a very bad move and should be fought with every ounce of intensity we have mustered in the past on this subject.

As a parting shot, there is a bit of humorous irony of the John Boehner "Crying Lame" variety. Chris Frates at Politico has a timely article up today on the hypocrisy of the GOP’s leading wailer:

When a federal judge ordered Rep. Jim McDermott to pay House Minority Leader John A. Boehner and his attorneys more than $1 million in damages and legal fees for leaking an illegally taped phone call to the media, Boehner said he pursued the case because “no one — including members of Congress — is above the law.”

Why, then, is the Ohio Republican trying to squash similar lawsuits against telecommunications companies who cooperated with the government in warrantless electronic surveillance, ask the attorneys behind the class action suits.

“Mr. Boehner is trying to kick millions of Americans out of court in a wiretapping case while collecting more than $1 million in his own wiretapping case. It’s the height of hypocrisy and seems to indicate that members of Congress are entitled to their day in court but the average American is not,” said Kevin Bankston, a senior staff attorney at the consumer rights nonprofit the Electronic Frontier Foundation.

Bankston said he found it insulting that Boehner would attack the attorneys representing millions of Americans as money-grubbers while he and his attorneys were “lining their own pockets.”

Boehner screams and cries to get immunity for Bush, Cheney and the telcos while denying citizens the very rights he brandishes like a peacock. Insulting money grubbers lining their own pockets indeed. Pretty much summarizes the whole Bush/Cheney regime. Nancy Pelosi and Steny Hoyer are wrong to permit these people to slip off the hook; let’s make sure they know what we think of that.


Main Core

I don’t know about the track record of Christopher Ketcham, the author of this Radar piece explaining the "big thing" that that made Jim Comey object to the warrantless wiretapping program so aggressively in March 2004. But it sounds like a plausible explanation.

Ketcham describes a database of Americans who, in case the government ever implements its Continuity of Government program in a time of national emergency, can be rounded up and jailed.

… a number of former government employees and intelligence sources with independent knowledge of domestic surveillance operations claim the program that caused the flap between Comey and the White House was related to a database of Americans who might be considered potential threats in the event of a national emergency. Sources familiar with the program say that the government’s data gathering has been overzealous and probably conducted in violation of federal law and the protection from unreasonable search and seizure guaranteed by the Fourth Amendment.

According to a senior government official who served with high-level security clearances in five administrations, "There exists a database of Americans, who, often for the slightest and most trivial reason, are considered unfriendly, and who, in a time of panic, might be incarcerated. The database can identify and locate perceived ‘enemies of the state’ almost instantaneously." He and other sources tell Radar that the database is sometimes referred to by the code name Main Core. One knowledgeable source claims that 8 million Americans are now listed in Main Core as potentially suspect. In the event of a national emergency, these people could be subject to everything from heightened surveillance and tracking to direct questioning and possibly even detention.

[snip]

Another well-informed source—a former military operative regularly briefed by members of the intelligence community—says this particular program has roots going back at least to the 1980s and was set up with help from the Defense Intelligence Agency. He has been told that the program utilizes software that makes predictive judgments of targets’ behavior and tracks their circle of associations with "social network analysis" and artificial intelligence modeling tools. [my emphasis]

Ketcham goes on to explain that the Bush Administration was cross-referencing Main Core with its warrantless wiretap program. I’m not entirely clear whether Ketcham is saying BushCo used Main Core to come up with potential targets of warrantless wiretapping, or whether they used the warrantless wiretapping intercepts to add to Main Core–I think, but am not positive–it’s the latter.

A veteran CIA intelligence analyst who maintains active high-level clearances and serves as an advisor to the Department of Defense in the field of emerging technology tells Radar that during the 2004 hospital room drama, James Comey expressed concern over how this secret database was being used "to accumulate otherwise private data on non-targeted U.S. citizens for use at a future time." Though not specifically familiar with the name Main Core, he adds, "What was being requested of Comey for legal approval was exactly what a Main Core story would be." A source regularly briefed by people inside the intelligence community adds: "Comey had discovered that President Bush had authorized NSA to use a highly classified and compartmentalized Continuity of Government database on Americans in computerized searches of its domestic intercepts. [Comey] had concluded that the use of that ‘Main Core’ database compromised the legality of the overall NSA domestic surveillance project."

I agree with Digby: read the whole thing.

Now, like I said, I don’t know how credible this story is, but two things seem to support its credibility.

First, the Continuity of Government thing is a big neocon wet dream. As Ketcham notes, Ollie North was an early operative developing the plan under Reagan. During their private sector years, Cheney and Rummy were both picked to run the government if the COG plan ever went into effect. So this would be, in a sense, Cheney’s wet dream squared. He’d get to blow FISA away, as he and Addington apparently drool over doing. And he’d get to do so using his masters of the universe fantasy to boot. So it seems utterly plausible to me that Cheney would dream up merging all his wet dreams into one domestic spying program in the days after 9/11.

The other reason this seems so plausible is that, Ketcham quotes Philip Giraldi as speculating, it basically uses the Department of Homeland Security to shield this activity.

If Main Core does exist, says Philip Giraldi, a former CIA counterterrorism officer and an outspoken critic of the agency, the Department of Homeland Security (DHS) is its likely home. "If a master list is being compiled, it would have to be in a place where there are no legal issues"—the CIA and FBI would be restricted by oversight and accountability laws—"so I suspect it is at DHS, which as far as I know operates with no such restraints." Giraldi notes that DHS already maintains a central list of suspected terrorists and has been freely adding people who pose no reasonable threat to domestic security. "It’s clear that DHS has the mandate for controlling and owning master lists. The process is not transparent, and the criteria for getting on the list are not clear."

This makes sense too. While anything run through a formal intelligence department would need to be–at least according to the laws Bush and Cheney like to ignore–reviewed by the Intelligence Committees. With DHS, those laws are more vague. Furthermore, this would put Michael Chertoff–who we know was brought into some of Yoo’s crappy OLC opinions (albeit those that deal with torture), in charge of the program. In fact, Chertoff is basically implementing a different domestic spying program–that National Applications Office, which will use satellites within the US–over the objections of the House Homeland Security Committee (the Senate Homeland Security Committee–led by Joe Lieberman–seems to have no problems with Chertoff spying on us with satellites).

This explanation, in other words, fits neatly with a lot of things we know about the Bush Administration.


Preview: Book Salon on Spies for Hire

shorrock.jpgI wanted to give you all a heads up to a mid-week book salon I’ll be hosting today at 3PM ET over at the mother ship: Tim Shorrock’s Spies for Hire: The Secret World of Intelligence Outsourcing. I pushed to include Shorrock on the schedule because (as you’ll see in my post at 3) his book offers some key insights on FISA–and we seem to be gearing up for another FISA fight.

But there’s more than FISA that might interest you about the book (and about chatting with Shorrock). He gives the corporate back-story to:

  • Rick Renzi’s corruption
  • The domestic spying Counterintelligence Field Activity (CIFA)
  • CACI, the company whose contractors directed the torture at Abu Ghraib
  • Total Information Awareness
  • The domestic satellite surveillance Chertoff wants to use with DHS

Shorrock wraps that background story in a discussion both of the ideology behind the privatization of our intelligence function:

…as we’ve seen, money and profits are not the sole motivators for the corporations and executives who populate the Intelligence Industrial Complex. Because so many top executives are former intelligence officers themselves, many of their companies are motivated by politics as well. For CACI’s CEO, Jack London, that translates into a desire to "disseminate vital intelligence" for the fight against "Islamofascists." For ManTech CEO George Pederson, it’s a yearning for his company to be "on the battlefield," whether in Iraq, South Korea, or the Philippines. For the senior vice presidents of the big prime contractors, Booz Allen Hamilton and Science Applications International Corporation, it involves power, either as a way to influence future policy or make changes in the way the Intelligence Community is organized.

And a discussion of the subservience of public to private interest in such an Intelligence-Industrial Complex.

In the past, [former NSA Director Kenneth] Minihan said, contractors "used to support military operations; now we participate [in them]. We’re inextricably tied to the success of their operations." This new situation, he argued, presents corporations with "interesting opportunities" to create technologies that governments can take advantage of, "with all the complexities that exist in merging the interests of the private and public sector in the intelligence apparatus."

Merging the interests of the private and public sector. That astonishing phrase, which is now the mantra of the intelligence contracting industry, suggests the creation of a new mode of capitalism that specifically serves theneeds of government and its "intelligence apparatus." The implications are staggering: once private and public interests are merged, then the need for oversight disappears, along with regulation and other institutions designed to act as a brake on unbridled capitalist development or as watchdogs against corruption. Indeed, with 70 percent of the U.S. intelligence budget now going to private sector contractors, we may have already reached the point of no return. [emphasis and second brackets original; first brackets mine]

Under the leadership of Director of National Intelligence Mike McConnell, the Bush Administration has handed over the keys to our privacy to these companies that believe in profit and the fight against Islamofascists.

Want to find out more? Join Tim Shorrock and me at 3PM ET.

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Originally Posted @ https://www.emptywheel.net/fisa/page/169/