I Don’t Think “Exclusivity” Means What John Yoo Thinks It Does

I wanted to focus some attention on one tiny part of the interchange I highlighted yesterday. In the guise of explaining to Administraton apologist David Rivkin the Kafkaesque process by which he has gotten some of the Office of Legal Counsel’s opinions declassified, Sheldon Whitehouse revealed he has been trying to get one more opinion declassified–one relating to exclusivity:

I’d be delighted to show you the whole rest of the opinion [stating that the President tells DOJ how to interpret law] but I’m not allowed to. It’s classified. I had to fight to get these declassified. They made me take … they kept my notes. They then delivered them to the intelligence committee where I could only read them in the secure confines of the intelligence committee and then I had to, again, in a secure fashion, send this language back to be declassified. I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

Exclusivity, you’ll recall, refers to the language in the original FISA bill that requires that FISA be the only means under which the executive branch conducts domestic surveillance. Here’s Anonymous Liberal on exclusivity:

Perhaps the most important provision in the entire FISA legal framework is 18 U.S.C. § 2511(2)(f)–commonly known as the exclusivity provision–which states that the "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

It is through this provision that Congress made it clear that FISA’s warrant requirement and other procedures were mandatory and that it did not intend to leave the president with any residual authority to conduct warrantless surveillance outside of the FISA framework.

Now, as AL points out, the Protect America Act introduced a loophole by which the Administration could get around the exclusivity provision, one DiFi has been trying to ensure stays closed in the amended FISA, and which the Administration hopes to keep open. Read more

The Commission on Warrantless Wiretapping and FISA Compromise

Apparently, while I’ve been on my Haggis and Beamish pilgrimage, Steny Hoyer has been busy brokering a compromise on FISA.

House Majority Leader Steny H. Hoyer (D-Md.) said Wednesday a FISA deal is “still in flux” but he described the latest developments as “promising” and said he hoped to have a solution soon.


Sen. Kit Bond of Missouri, the top Republican on the Intelligence committee and one of the GOP’s top negotiators on the issue, said he met with Hoyer to discuss the issue on Monday, but did not say a breakthrough had been achieved.

“This is still a ping-pong match,” said Rep Jane Harman (D-Calif.), referring to the back and forth on the bill between the two chambers.

Harman said the latest developments signify "positive movement" on the bill and praised the job Hoyer has been doing on the issue.

Hoyer has been the strongest proponent of a compromise in the Democratic leadership and has worked hard to broker a deal on the issue. He often acts as an intermediary between liberal House Democrats unwilling to grant the telecom companies immunity and conservative Senate Republicans and the White House, both of whom will not accept any FISA bill without immunity.

Now, before I say what I’m about to say, let me reiterate that I believe we should not compromise. The telecoms broke the law when they accepted a letter authorizing the spying on Americans signed by the White House Counsel in lieu of the Attorney General in March 2004, and they should be held accountable for breaking the law.

That said, let me make some points about what basis for compromise Steny might be negotiating, and how such a compromise might be an avenue for transparency about the Administration’s (as distinct from just the telecom’s) lawbreaking with the illegal wiretap program.

Remember that Steny is not just the chief broker currently on FISA. He was also the chief broker on the House bill that passed on March 14. And that bill had one provision that seems to have been forgotten in recent discussions of compromise, but was clearly intended, even in March, to serve as the kernel of any future compromises: the call for a commission to investigate the illegal wiretap program.

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EFF Bags A Big Win On NSLs

Our good friends at EFF have a big announcement. They have bagged a big win against the Bush Government on the improper use of National Security Letters.

The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive’s founder to speak out for the first time about his battle against the record demand.

"The free flow of information is at the heart of every library’s work. That’s why Congress passed a law limiting the FBI’s power to issue NSLs to America’s libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "While it’s never easy standing up to the government — particularly when I was barred from discussing it with anyone — I knew I had to challenge something that was clearly wrong. I’m grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."

The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive’s Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI’s misuse of NSLs.

"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "It appears that every time a national security letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records. In the absence of much needed judicial oversight – and with recipients silenced and the public in the dark – there is nothing to stop the FBI from abusing its NSL power."

You can read the entire press release here. When they say "there is nothing to stop the FBI from abusing its NSL power" that is not quite right; there is something, and it is the invaluable work of the EFF and ACLU. Make no mistake Read more

FISA: The Coming Battle

As I am minding the store while mom is away tilting kilts, I was party to a group discussion among several notable powers that be in the blogosphere early this afternoon, and the various blogs, all of which you are intimately familiar with, will be rolling out over the next few days somewhat of a battle plan on FISA/immunity. Nothing particularly new or shocking really, just a reminder to folks of the stakes involved and where the pressure points are that we need to address.

I wish I could say that there is some new brilliant, sexy and effective tact that we have lit upon to wipe this all away; but that, alas, is not the case. It will be back to the grindstone of calling, faxing and otherwise communicating with the key representatives etc. One thing I think will be critical is to offer plenty of carrots, with gentle reminders of the sticks. As you will recall, we got a surprisingly good response, and result, from the House Democrats in the last go round. We want to build, grow and reinforce that effort and result. The gathering proximity of the election is a double edged sword however. It is a chance for us to remind them of how favorably we view the last effort, but it is clearly also another opportunity for the Bushies to roll out the fear/security card and threaten the weak, and weakly situated, elements (read mostly Blue Dogs) of the Democratic coalition. It is going to be critical for those of us that actually live in districts represented by one of these souls to work them hard.

I have some things that will divide most of my attention for a few hours; although I will check in periodically as I can. In the meantime, use this space to discuss anything you feel important, but please start putting all the collective talent together to suggest ways and means for fighting the next stage of the FISA battle. My post from yesterday morning pretty much gives the lay of the land as it is understood at this moment; there are no real new baseline facts since then. Thanks.

The Uncounted Wiretaps

McJoan has an important post on BushCo’s coordination with the telecoms to push Congress into passing an immunity bill. There’s a Guinness with my name on it in the pub downstairs, so I’ll just tell you go read McJoan (and, of course, bmaz’ earlier post from today). But I wanted to make one point about this paragraph from the Isikoff article she links:

The debate over a new surveillance authorization is likely to be complicated by figures showing sharp increases in the government’s electronic eavesdropping on U.S. citizens. One report filed with the office of the administrator of the U.S. Courts shows that standard wiretaps approved by federal and state courts jumped 20 percent last year, from 1,839 in 2006 to 2,208 in 2007. Later this week another report is expected to also show increases in secret wiretaps and break-ins approved by the Foreign Intelligence Surveillance Court (FISC) in terror and espionage cases. But even these secret wiretaps and break-ins—estimated to be about 2,300—tell only part of the story. They don’t include other secret methods the government uses to collect personal information on U.S. citizens.

Newsweek cites a big bump in numbers for 2007–a bump which, Hosenball and Isikoff claim–reflect a real increase in actual surveillance.

But we don’t know that.

After all, for 11 and a half months of 2007, the formerly illegal, uncounted warrantless wiretapping was put under review by the FISA Court. So we should expect the numbers to go up significantly, because they will reflect the Administration counting wiretaps that, because they had previously escaped all review, had previously not been counted. We may or may not be seeing an increase in wiretaps. Rather, we may simply be seeing an increase in the number of wiretaps that get counted.

One more point, and then it’s beer thirty.

Remember that part of the hysterics the Administration used to push through PAA in August was to claim that they had lost the ability to wiretap. McConnell told Congress they had lost significant capabilities because FISC was actually reviewing these wiretaps.

If that’s true, then why are the numbers so high? 

Jello Jay And Hoyer Slither Back Into The FISA Limelight

Crikey, this is getting old. You may have seen by now that rumors of a new push on passage of FISA, and, of course, full retroactive immunity, are bubbling to the surface in the last 24 hours. Here is Jane. Here is Digby. Here is McJoan. From Jane at FDL:

According to the ACLU, there is rumor of a backroom deal being brokered by Jay Rockefeller on FISA that will include retroactive immunity. I’ve heard from several sources that Steny Hoyer is doing the dirty work on the House side, and some say it will be attached to the new supplemental.

A few more facts and circumstances are available now than were in the earlier stories. For one, we apparently see the "urgency lever" being pressed this time around (there always seems to be one in these plays, it’s a feature). From Alexander Bolton at The Hill:

The topic has reached a critical point because surveillance orders granted by the director of national intelligence and the attorney general under the authority of the Protect America Act begin to expire in August.

If Congress does not approve an overhaul of the Foreign Intelligence Surveillance Act (FISA) by Memorial Day, intelligence community officials will have to prepare dozens of individual surveillance warrants, a cumbersome alternative to the broader wiretapping authority granted by the Protect America Act, say congressional officials familiar with the issue.

Maybe, but if so, then the situation is intentionally so from a designated plan by the Administration to have some of their programs start running out while they are still in office and can use the "urgency" to fuel their desperate push for immunity. The reason, if you will recall, is the little provision placed in the Protect America Act (PAA) allowing any surveillance order (i.e entire general program, not just individual warrants) existing at the sunset of the PAA, which occurred on February 17, 2008, to continue until expiration, which means that there was NO necessity that any program that the government wished to pursue expire anytime during the current Administration. I have reminded folks of this repeatedly, but here is a wonderful synopsis from Cindy Cohn of EFF:

The PAA provides that any currently ongoing surveillance continues until the "date of expiration of such order," even if PAA expires. "Orders" are what the PAA calls the demand for surveillance by the Attorney General or Director of National Intelligence (there’s no court involved). These surveillance orders can be Read more

Article I v. State Secrets

Well, if nothing else, this al-Haramain case in CA looks like it’ll focus the issue of States Secrets just as the Senate attempts to curb it.

An Islamic charity group is challenging the Bush administration’s record use of the so-called state secrets privilege, dubbed a "killer bullet" to the group’s case over warrantless wiretapping.

Lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation on Wednesday urged a federal judge to toss out the government’s use of the privilege and let their lawsuit proceed.

The SF Chronicle captures the government argument in all its Kafkaesque glory.

A Bush administration lawyer resisted a San Francisco federal judge’s attempts Wednesday to get him to say whether Congress can limit the president’s wiretap authority in terrorism and espionage cases, calling the question simplistic.

"You can’t possibly make that judgment on the public record" without knowing the still-secret details of the electronic surveillance program that President Bush approved in 2001, Justice Department attorney Anthony Coppolino said at a crucial hearing in a wiretapping lawsuit.


But Walker, in an extensive exchange with Coppolino, said Congress had spoken clearly in a 1978 law that required the government to obtain a warrant from a secret court before it could conduct electronic surveillance of suspected foreign terrorists or spies.

"The president is obliged to follow what Congress has mandated," Walker said.

Coppolino replied that Congress has also authorized the president to protect the nation and its military secrets.


Walker pressed him on a more basic issue: whether Congress acted constitutionally when it required court approval for such wiretaps in the 1978 Foreign Intelligence Surveillance Act.

"I think it’s a bit of a simplistic question," Coppolino said.

"One might call it a fundamental question," the judge replied.

The government lawyer said that Congress "sought to intrude on the president’s authority to authorize surveillance" when it enacted the law, and that Bush, acting under his constitutional powers, had determined that its provisions were not sufficient to allow law enforcement authorities to thwart terrorists’ attack plans.

But Coppolino said the constitutionality of the law, and the related question of whether it is binding on the president, can’t be resolved without delving into operational details whose exposure would damage national security.

It looks like Coppolino’s argument will be worth reviewing in detail–to either laugh … or cry. Read more

Conyers to Mukasey: So You Did Spin Shamelessly, Didn’t You?

(Updated with selise’s YouTube showing Leahy confronting Mukasey on his misrepresentation.) 

I really really like this letter Conyers, Nadler, and Scott sent to Attorney General Mukasey on his claim that they could have prevented 9/11 if only FISA hadn’t been preventing them. In it, they basically nail DOJ on its non-responsive response to their earlier letter asking about Mukasey’s claim. If you recall, the prior letter basically gave Mukasey a few choices: either Mukasey completely misunderstands FISA, the Administration withheld information from the 9/11 Commission, or the Administration screwed up.

These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11,

The underlying truth that DOJ won’t admit, of course, is that Mukasey misrepresented the incident in an attempt to make a case for FISA that doesn’t actually hold up.

In an apparent attempt to avoid admitting Mukasey has been spinning wildly, DOJ wrote a non-responsive response back–it turned the question into a general question about FISA legislation, rather than specific question about whether Mukasey misrepresented the facts.

We are writing about the April 10, 2008, letter from Brian Benczkowski in response to our letter of April 3, 2008, concerning disturbing recent revelations about apparent pre-9/11 failures and subsequent abuses of civil liberties by the Administration. While we appreciate the promptness of the April 10 letter, we are extremely concerned about its failure to address several of our specific inquiries.


In addition, however, the April 10 letter does not respond to several of our requests. Our letter did not, as you characterize it, generally inquire “why FISA’s emergency provisions were not an adequate substitute for the authorities the Government has obtained under the Protect America Act.” Rather, our inquiry concerned the specific phone call about which you spoke. We asked whether the then-existing emergency provisions would have allowed interception of the specific call at issue, if indeed the foreign portion of the call was a known terrorist location. To the extent that your response set forth an argument for the PAA or the Administration’s preferred version of FISA reform, it was non-responsive to our request for information. Read more

Mark Schauer Condemns Bush’s and Walberg’s Fear-Mongering

Crazy wingnut Tim Walberg doesn’t yet realize what even the White House has realized–the fear mongering isn’t working any more. Here’s the op-ed Walberg wrote condemning Democrats because they insist on protecting Americans’ civil liberties and privacy.

House leadership will not support current FISA legislation because the bill would prevent trial lawyers from suing American telecommunications companies who cooperate with American intelligence agencies’ monitoring of foreign terrorist communications.

Recent news reports revealed that almost 40 lawsuits are pending against the very telecommunications companies who helped our country in a time of crisis. Gathering intelligence to defend America’s national security has never been and should never be a political issue.

It is shameful that some in Washington place the ability of trial lawyers to sue over national security. When American companies assist American intelligence agencies with monitoring foreign terrorist threats, they should be thanked, not sued.

We need the foreign intelligence surveillance law passed so America’s intelligence community can monitor al-Qaida and other terrorist networks without getting permission to listen to foreign terrorists plotting on foreign lands.

I guess Tim Walberg doesn’t even know that our intelligence community already has–and has always had–the ability "to monitor … al Qaeda without getting permission to listen to foreign terrorists plotting on foreign lands." If he doesn’t even know that most basic fact about FISA, then he surely doesn’t know that the reason the telecoms want immunity is because they agreed to spy on Americans based solely on the legal authorization of the White House Counsel–the President’s own lawyer!

Blue America is supporting Walberg’s challenger, Mark Schauer. Here’s what Mark has to say about FISA:

I’m Mark Schauer. Personally I’m tired of Tim Walberg and George W. Bush using fear about our national security to score cheap political points. Congress has passed legislation to ensure that tools are in place to protect our country’s safety, but Walberg and Bush seem more interested in protecting big corporations that have helped them listen to our phone calls, read our emails, violate our privacy, then they are about protecting law-abiding citizens. I believe our Constitution, and our rights, including our right to privacy, are worth fighting for. If our government or big corporations break the rules, they should be held accountable.

Support the guy who supports the Constitution, not more fear-mongering.

Warrantless Wiretap Memos Timeline

I laid out the OLC opinions described in the Steven Bradbury declaration to the ACLU. In this post, I’ll add in the other significant documents he describes. Note, Bradbury names four documents–OLC 56, 57, and 58, and OIPR 138–which are documents created by the President or his immediate staff, and so are not agency documents; he provides no description of these documents. There are, of course, a great number of documents withheld, which therefore have no description or date.

Materials not included in Bradbury’s memos are not bold.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists.

October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.

October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.

November 2, 2001, from DAAG OLC to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities.

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