February 24, 2020 / by 

 

House to Go Into Secret Session

At the request of the Republican leadership (who want to say something to the entire House that can’t be said publicly), the House is going to go into a secret session to debate FISA.

Here’s what John Conyers had to say about the secret session:

The more my colleagues know, the less they believe this Administration’s rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration’s actions in the area of warrantless surveillance, the more likely they are to reject the Administration’s scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration’s documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

Whether this is a worthwhile exercise or mere grandstanding depends on whether Republicans have groundbreaking new information that would affect the legislative process. There must be a very high bar to urge the House into a secret session for the first time in 25 years. I eagerly await their presentation to see if it clears this threshold. As someone who has seen and heard an enormous amount of information already, I have my doubts.

I’m frankly optimistic about this development. I think this gives the Democratic members of HJC and HPSCI an opportunity to explain to their colleagues what they saw in the justifications for the wiretap program and what they heard from the telecom executives who gave secret briefings in the last several weeks. For the immediate debate, the issue is winning over the Blue Dogs who–at least currently–appear to be channeling their Democratic past. And it seems like this argument is fairly easy to make.

At the very least, we know the telecoms continued to wiretap in the days after March 10, 2004, when White House Counsel Alberto Gonzales authorized the program rather than Acting AG Jim Comey. We know the telecoms didn’t follow the clear guidelines about when they can accept the Administration’s assurances that a program is legal.

That seems like an important part of the debate.


HJC Calls Bull on SSCI’s Conclusions

The Democrats on HJC have been doing their homework while the Republicans have been fear-mongering. They’ve read the documents related to the illegal wiretapping program, held secret hearings with the telecom companies, and called bull on several of the conclusions formed by SSCI. Not surprisingly, this letter justifies the FISA alternative which will come up for a vote later this afternoon.

The letter reveals the timing of the hearings with the telecom companies–but does not reveal whether the Republicans deigned to attend.

In recent weeks, Judiciary Committee members have received classified briefings from intelligence and Justice Department officials on the Administration’s warrantless surveillance program; we have been provided access to the same classified documents on the program that were provided months ago to the Senate Intelligence and Judiciary Committees (and, more recently, to the House Permanent Select Committee on Intelligence); and the Committee has conducted lengthy and extensive classified hearings on February 28 and March 5 to hear testimony from telecom and Administration officials. A key focus of that effort was the issue of retroactive immunity for phone companies that participated in the warrantless surveillance program. [my emphasis]

The hearings appear to have taken place during that period when the Republicans had taken their toys and gone home–so it’s likely, by refusing to let their staffers participate, the Republicans avoided learning the details that the Democrats learned [Update: I’ve been informed the Republicans attended the hearings]. And note–they still seem to be focused on phone companies, not the email carriers who are the center of the new programs.

The letter also confirms what we’ve already known–not all carriers acted the same in response to Administration requests.

The case for blanket retroactive immunity would be stronger if the various carriers had taken consistent actions in response to requests from the Administration. That is not what we found. Without revealing any specific details, we found a variety of actions at various times with differing justifications in response to Administration requests.

No word on whether anyone has contacted Nacchio’s judge–who is having his own Spitzer-like problems–to inform him that Nacchio had a point when he said he may have lost his NSA contracts out of spite.

The letter also repeats a point AT&T made in its letter to Dingell et al–that the activities the telecoms were engaged in were covered under a number of different laws.

If there were one simple, straightforward legal rule that applied to the conduct in question, it could perhaps be argued that it is a straightforward matter for the legislature to assess the lawfulness of the conduct in question. Without revealing any specific details, that is not what we found. It appears that a variety of legal rules and regimes may apply to the conduct of the carriers. We would note that one carrier has publicly stated that there are “numerous defenses and immunities reflected in existing statutory and case law” for companies that cooperate with legally authorized government surveillance requests. [my emphasis]

I was thinking when I read that letter that one thing AT&T was trying to do was describe the scope of the illegal program. I plan to go back and read those legal justifications more closely, but I recall the centrality of laws pertaining to pen registers among them, reinforcing the notion that the telecoms were also data mining. It sure sounds like they crafted together a mix of legal justifications to do what they did.

Most importantly, HJC makes a strong case to reject immunity (while allowing the telecoms to defend themselves–a stance that also responds to the sole reason SSCI felt it had to offer immunity), while calling for an independent committee to look into the illegal wiretapping.

Accordingly, we support a resolution that would, notwithstanding the state secrets doctrine, authorize relevant carriers to present fully in court their claims that they are immune from civil liability under current law, with appropriate security protections to carefully safeguard classified information. This solution would ensure that carriers can fully present their arguments that they are immune under current law, while also ensuring that Americans who believe their privacy rights were violated will have the issue considered by the courts based on the applicable facts and law, consistent with our traditional system of government and checks and balances.

Our review has also led us to support two other recommendations. First, there is arguably a gap in liability protections for carriers that complied with lawful surveillance requests covering the time period between the expiration of the Protect America Act and the future enactment of more lasting FISA reform legislation. As Speaker Pelosi and Senate Majority Leader Reid have proposed, legislation to fill that gap is justified and important. This provision is not included in the Senate FISA bill, and shoul dbe included in any final legislative product.

In addition, our review of classified information has reinforced serious concerns about the potential illegality of the Administration’s actions in authorizing and carrying out its warrantless surveillance program. We, therefore, recommend the creation of a bipartisan commission to conduct hearings and take other evidence to fully examine that program. Like the 9/11 Commission, it would make findings and recommendations in both classified and unclassified reports and thus inform and educate the American people on this troubling subject.

I like this approach: it undercuts the logic of SSCI’s insistence on immunity, shows a concern for the prospective legal position of the telecoms, while putting something on the table–a bipartisan commission–that we can negotiate with if we ever have to cede on immunity.

Let’s hope it’s not too little too late.


Think Outside the Box

The ACLU says this about the House’s proposed compromise on FISA.

While we still have concerns about aspects of the new House FISA bill, the American Civil Liberties Union is encouraged by the new draft – particularly the language on state secrets, which would allow the cases to go forward while allowing the telecommunications companies to assert any defenses. We commend House leadership for keeping the courthouse door open.

I think this is what they’re referring to:

SEC. 802. PROCEDURES FOR COVERED CIVIL ACTIONS.
(a) INTERVENTION BY GOVERNMENT.— In any covered civil action, the court shall permit the Government to intervene. Whether or not the Government intervenes in the civil action, the Attorney General may submit any information in any form the Attorney General determines is appropriate and the court shall consider all such submissions.

(b) FACTUAL DETERMINATIONS.—In any covered civil action, the court shall review in accordance with the procedures set forth in section 106(f) any evidence or information with respect to which a privilege based on state secrets is asserted, whether that evidence or information is submitted by any party or the Government. The court may, on motion of the Attorney General, take any additional actions the court deems necessary to protect classified information. In order to ensure full argument of all legal issues, the court shall, to the extent practicable and consistent with national security, request that any party present briefs and arguments on any legal question the court determines is raised by such a submission even if that party does not have full access to such submission. The court shall consider whether the employment of a special master or an expert witness, or both, would facilitate proceedings under this section.

(c) LOCATION OF REVIEW.—The court may conduct the review in a location and facility specified by the Attorney General as necessary to ensure security.

(d) REMOVAL.—A covered civil action that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.

(e) SPECIAL RULE FOR CERTAIN CASES.—For any covered civil action alleging that a person provided assistance to an element of the intelligence community pursuant to a request or directive during the period from September 11, 2001 through January 17, 2007, the Attorney General shall provide to the court any request or directive related to the allegations under the procedures set forth in subsection (b).

(f) APPLICABILITY.—This section shall apply to a civil action pending on or filed after the date of the enactment of this Act.

I’m curious to see what the legal types around these parts think. But it seems that it challenges immunity advocates to put their money where their mouth is. For a long time, immunity advocates have argued that those poor little telecoms couldn’t defend themselves because the government invoked state secrets.

Well, says Congress, simply have the courts review the materials about which the government has invoked state secrets. Voila, problem solved.


“Or His Designee”

I noticed something really funny in the AT&T response to Dingell and friends that MadDog linked to. In a passage describing why the telecoms should be granted immunity for abetting the Administration in its illegal wiretap program, AT&T cites 18 USC 2411(2)(a)(ii) to argue that it is immune from prosecution.

The same principle–that a telecommunications carrier who cooperates in good faith with the authorized law enforcement or intelligence activities considered lawful by the executive–underlies numerous defenses and immunities reflected in existing statutory and case law. For example, 18 U.S.C. 2511(2)(a)(ii) provides that "notwithstanding any other law," carriers are authorized to provide "assistance" and "information" to the government whenever the communications service provider receives a "certification" from the Attorney General or his designee "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. When the Attorney General furnishes an appropriate certification, Congress has decreed that "no cause of action shall lie in any court." It does not matter whether the Attorney General’s judgment reflected in the certification is ultimately determined to have been right or wrong: as long as the carrier acted pursuant to such a certification, national policy forbids a lawsuit. [emphasis AT&T’s]

Now compare their citation of 18 U.S.C. 2511(2)(a)(ii) with the actual statute.

(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,

Do you see the difference? AT&T has unilaterally rewritten "a person specified in section 2518(7) of this title or the Attorney General" to say "Attorney General or his designee." (And if you’re wondering, 2518(7) doesn’t say anything about "designees" either. Update: yes it does–though it specifies that they have to be investigative officers.)

Of course, we know why AT&T has unilaterally rewritten the law. That’s because, as SSCI kindly told us, AT&T conducted its illegal wiretap program based on the authorization of Alberto Gonzales, then White House Counsel.

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]

Of course, AT&T is not alone in rewriting the law to make it legal for the President’s lawyer to authorize illegal wiretapping on American citizens. The SSCI did so themselves.

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 other officers 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). [my emphasis]

"Certain other officers" … "or his designee." Neither of those phrases appear in the law, of course.

AT&T and SSCI have all but admitted that AT&T broke the law, engaging in wiretapping Americans based on the certification of Bush’s lawyer.

And now Congress wants to retroactively make such wiretapping legal.


“Dude, that’s what they want.”

Babak Pasdar’s affidavit on Verizon’s Quantico Circuit reveals something about the government’s back-door access to all of Verizon’s data, one which might be familiar to you from the missing White House emails saga.

When the Steven McDevitt tried to reconstruct all OVP the emails from the period when Scooter Libby and Dick Cheney were coordinating their cover story, he discovered no logs from the emails of that period existed; thus, there’s no way to be sure that the 250 pages of email turned over to Patrick Fitzgerald constitute all the missing emails.

Golly. What a surprise, then, that the government didn’t want any logs taken of its back-door access to (presumably) Verizon’s data.

Pasder notes that (presumably) Verizon’s log collection system was very primitive.

I specifically remembered being shocked at the primitiveness and inadequacy of their log collection system. After all, this was a major carrier. After a cursory overview I was able to point out to C1 and C2 that their log collection system might not have been collecting all logs. This surprised C1 and C2. A subsequent test showed that the client’s log collection system was missing as many as 75% of the logs being generated, essentially rendering the whole system useless.

Mind you, that covered the whole system, not just the Quantico Circuit the government was using to access the system. But when Pasdar describes learning about the Circuit itself, he explains that there was no logging system for the Circuit. None.

This is a little narrative he tells about learning of the Circuit when testing the firewalls of the new system he was putting in.

At one point I overheard C1 and C2 talking about skipping a location. Not wanting to do a shoddy job I stopped and said "we should migrate all sites."

C1 told me this site is different.

I asked, "Who is it? Carrier owned or affiliate?"

C1 said, "This is the ‘Quantico Circuit.’"

Pasdar goes on to learn that this is a 45 mega bit per second circuit that supports data and voice communication. The consultants he was working with made it clear they weren’t supposed to put any access controls on it.

C1 said that this circuit should not have any access control. He actually said it should not be firewallled.

I suggested to migrate it and implement an "Any-Any" rule. ("Any-Any" is a nickname for a completely open policy that does not enforce any restrictions.) That meant we could log any activity making a record of the source, destination and type of communication. It would have also allowed easy implementation of access controls at a future date. "Everything at least SHOULD be logged," I emphasized.

C1 said, "I don’t think that is what they want."

As Pasdar continued to insist on securing the circuit, the consultants called in the Director of Security for (presumably) Verizon, the Director drove to the location to insist that Pasdar do nothing with the wide open circuit. After the Director left, Pasdar persisted.

I shifted the focus. "Forgetting about who [the circuit] is, don’t you think it is unusual for some third party to have completely open access to your systems like this? You guys are even firewalling your internal offices, and they are part of your own company!"

C1 said, "Dude, that’s what they want."

Finally, Pasdar asks whether there is any logging tied to the circuit.

"Does this thing have any logging or access list tied to it?", I asked C1.

He paused, shook his head in the negative and said, "I don’t think so."

For the balance of the evening and for some time to come I thought about all the systems to which this circuit had complete and possibly unfettered access. The circuit was tied to the organization’s core network. It had access to the billing system, text messaging, fraud detection, web site, and pretty much all the systems in the data center without apparent restrictions.

What really struck me was that it seemed no one was logging any of the activity across this circuit. And if they were, the logging system was so abysmal that they wouldn’t capture enough information to build any type of picture of what had transpired. Who knw what was being sent across the circuit and who was sending it? To my knowledge no historical logs of the communications traversing the "Quantico Circuit" exists. [my emphasis]

In other words, not only did they tap right into (presumably) Verizon’s circuits directly. But they refused to allow a record of what they were doing, once they got into the circuits, be made.

No wonder the Republicans refuse to allow segregation of US person data. No wonder they refuse to pull out information collected afterwards if it was later found to be an improper search. At the circuit level, at least, they’re not tracking that information.

And they didn’t want anyone to come afterwards and be able to track what they had done, either.


The Quantico Circuit

Yesterday, Wired’s Threat Level reported on the Quantico Circuit, what appears to be Verizon’s back door to give the government complete access to our telecommunications.

A U.S. government office in Quantico, Virginia, has direct, high-speed access to a major wireless carrier’s systems, exposing customers’ voice calls, data packets and physical movements to uncontrolled surveillance, according to a computer security consultant who says he worked for the carrier in late 2003.

"What I thought was alarming is how this carrier ended up essentially allowing a third party outside their organization to have unfettered access to their environment," Babak Pasdar, now CEO of New York-based Bat Blue told Threat Level. "I wanted to put some access controls around it; they vehemently denied it. And when I wanted to put some logging around it, they denied that."

Pasdar won’t name the wireless carrier in question, but his claims are nearly identical to unsourced allegations made in a federal lawsuit filed in 2006 against four phone companies and the U.S. government for alleged privacy violations. That suit names Verizon Wireless as the culprit. [my emphasis]

To which John Dingell and friends respond, this is another reason not to pass telecom immunity.

Because legislators should not vote before they have sufficient facts, we continue to insist that all House Members be given access to the necessary information, including the relevant documents underlying this matter, to make an informed decision on their vote. After reviewing the documentation and these latest allegations, Members should be given adequate time to properly evaluate the separate question of retroactive immunity.

Yeah, and while we’re at it, let’s figure out why the email providers are actually opposed to retroactive immunity. 


My Version of Pelosi’s Statement on Exclusivity

TPMM wrote up a summary of a response Speaker Pelosi gave to a question I asked at a blogger conference call today that has caused a stir. While I don’t disagree with McJoan’s take–if the Speaker had really said immunity was the issue, it would reflect a short-sighted view of FISA (though I’d say the same about other topics, such as segregation; after all, once the government can legally use information that has been improperly collected, that’s toothpaste out of a tube, too)–I’d like to give my version of the conversation, because I don’t think that’s what Pelosi said or meant.

The call was originally supposed to be focused on contempt. So after the Speaker finished telling about the Paul Wellstone Mental Health and Addiction Equity bill, someone (Mike Stark, I think) asked for reassurances that the Democrats would continue to pursue contempt after we win the White House and larger margins in both houses next year. Pelosi spoke at length about how important this contempt fight is because of the separation of powers issue–and stated that this is a better case than when GAO tried to get Cheney’s records on his Energy Task Force. Finally, in response to a follow-up, Pelosi stated that Democrats would continue to pursue the contempt issue after November.

Then, I piped in. I basically asked the idea laid out in this post.

Email providers argue that immunity will contribute to uncertainty. They speak of receiving "vague promises," they demand "clear rules" and "bright lines."

Given that complaints about uncertainty and unclear demands have led these email providers to strongly oppose retroactive immunity, it suggests the requests the email providers got were really murky–murky enough that the requests caused the email providers a good deal of trouble.

If the government was making such murky requests, don’t you think Congress ought to know what those requests were in more detail?

That is, since email providers just made a very strong statement against immunity, shouldn’t we be asking them why they’re opposed to it?

Pelosi, having just spoken at length about about separation of powers, then said that immunity wasn’t the only issue, exclusivity was important as well.

Note, I’m not sure I can dispute Paul Kiel’s description, though I don’t remember Pelosi emphasizing exclusivity in the way his post suggests at all. I certainly didn’t hear her say immunity is the issue, but then I was listening for my answer. (I thought about noting that I have been writing about more than immunity, but decided there were better things to do with the Speaker’s time. She can just go ask Russ Feingold.)

I did, however, restate my question, asking why they don’t bring in Google and Microsoft to find out why the people who got these requests from the government are actually opposed to immunity. She said it sounded like a good idea. (Woo hoo!)

The point is, in my opinion it is utterly wrong to paint what Pelosi said as a strategic statement against immunity and for exclusivity. She said nothing about trading immunity for exclusivity. I took her answer, following so closely on a fairly involved statement about the importance of fights over separation of powers, to simply point back that earlier discussion about contempt.

I think Speaker Pelosi was responding with a focus on ways to make sure Article I regains its power from Article II, not about the nitty gritty of the FISA fight.


The Government’s Unclear Demands for Emails

Ryan Singel and Mary have pointed to to Ken Wainstein’s confirmation of something we’ve been discussing for some time: the problem with FISA’s restrictions on foreign communication has to do with email.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don’t know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States. [my emphasis]

Now that the Administration is finally telling us some truths about their program, I think it worthwhile to repeat and expand on an observation I made here about CCIA’s letter opposing telecom immunity. CCIA, after all, represents three big email companies: Microsoft (Hotmail), Google (Gmail), and Yahoo. And in their letter, these email companies directly tie immunity with confusing requests from the government.

To the Members of the U.S. House of Representatives:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact. !!

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well. [my emphasis]

Email providers argue that immunity will contribute to uncertainty. They speak of receiving "vague promises," they demand "clear rules" and "bright lines."

Given that complaints about uncertainty and unclear demands have led these email providers to strongly oppose retroactive immunity, it suggests the requests the email providers got were really murky–murky enough that the requests caused the email providers a good deal of trouble.

If the government was making such murky requests, don’t you think Congress ought to know what those requests were in more detail?


Shorter Google:

"Don’t eliminate the competitive advantage I gained by trying to protect Americans’ privacy."

McJoan reports that the CCIA wrote a letter to Congress opposing retroactive immunity.

In strong rebuke of the Chamber’s knee jerk Republican pandering, the trade group that actually represents companies in the computer, Internet, information technology, and telecommunications industries, the Computer & Communications Industry Association (CCIA) is opposed to telco amnesty [pdf], and have weighed in with their own letter to Congress.

To the Members of the U.S. House of Representatives:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the "FISA Amendments Act of 2007," as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support. [emphasis McJoan’s]

And if I’m not mistaken, Google and Yahoo are the two primary CCIA members who would be (as the letter states) "called upon for cooperation and assistance in law enforcement" [Update: as WO points out, Evil Bill Gates is as big a player in free email, and was also asked for search queries.] As you’ll recall, both Google and Yahoo were asked to turn over vast amounts of data that would have also revealed a good deal of proprietary information (Yahoo complied, Google fought the request).

The Justice Department has asked a federal judge to compel Google, the Internet search giant, to turn over records on millions of its users’ search queries as part of the government’s effort to uphold an online pornography law.

Google has been refusing the request since a subpoena was first issued last August, even as three of its competitors agreed to provide information, according to court documents made public this week. Google asserts that the request is unnecessary, overly broad, would be onerous to comply with, would jeopardize its trade secrets and could expose identifying information about its users.

Now, I don’t actually know whether or not Google is opposed to retroactive immunity because of this fight over the search queries or a request explicitly tied to terrorism. But I do wonder whether CCIA Google has specific requests in mind when it says,"our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact."

Chairman Reyes–while you’re talking to telecom companies, maybe you ought to talk to Google, too, to find out what wacky requests the Bush Administration asked it comply with, because it sure sounds like it got some rather ambiguous requests.

Meanwhile, speaking of McJoan’s post–did you notice that yet another Quinn Gillespie client–the US Chamber of Commerce–is pushing for telecom immunity? Has the President’s Counselor recused himself from this fight, because those Quinn Gillespie clients sure seem to be pushing this big.


Mixed Telecom Signals

As Ryan Singel points out, Silvestre Reyes went from writing a scathing editorial with Senators Leahy and Jello Jay and Congressman Conyers on Monday, denouncing Bush’s scare tactics, to announcing imminent agreement by the end of the week.

Regarding a compromise deal, Reyes said: "We think we’re very close, probably within the next week we’ll be able to hopefully bring it to a vote."

Seemingly a pretty big turn-around over the course of the week, no?

But there’s more that’s funky with Reyes’ timing. The AP reports his statement was taped Friday, not Sunday.

Rep. Silvestre Reyes, in a television interview broadcast Sunday, did not specifically say whether the House proposal would mirror the Senate’s version.

[snip]

Reyes, whose interview was taped Friday, appeared on CNN’s "Late Edition," as did Blunt.

Friday happens to be the same day that Harry Reid moved to pass a 30-day extension to the PAA.

As we move forward, there is no reason not to extend the Protect America Act to ensure that there are no gaps in our intelligence gathering capabilities. Even Admiral McConnell, the Director of national Intelligence, has testified that such an extension would be valuable. But the President threatens to veto an extension, and our Republican colleagues continue, inexplicably, to oppose it.

“I urge them to withdraw their opposition. I will now ask unanimous consent to take up and pass S. 2664, a bill to extend the Protect America Act for 30 days, and to make the extension effective as of February 15, to ensure that there are no adverse legal consequences from the President’s decision to let that law expire.”

Now I suppose the 30-day extension, made retroactive to February 15, would amount to just a 15 day extension. And I see the value of forcing Republicans to repeatedly refuse to ensure the wiretaps continue.

But which is it? Imminent deal, or two more weeks?

And while we’re talking about weird temporal anomalies, can someone help me with the timing of this passage?

Reyes, D-Texas, said he was open to that possibility after receiving documents from the Bush administration and speaking to the companies about the industry’s role in the government spy program.

"We are talking to the representatives from the communications companies because if we’re going to give them blanket immunity, we want to know and we want to understand what it is that we’re giving immunity for," he said. "I have an open mind about that."

The word "after" suggests that Reyes has seen what the telecoms did, and now is more comfortable with the idea of immunity. Yet the phrase, "are talking" suggests this discussion is still in process. Is this just some kind of AP grammar, or has Reyes already talked to the telecoms? Have his colleagues from Commerce gotten a chance to talk to the companies they oversee, or just a select group of Congressmen whose word we’re being asked to trust? As McJoan notes,

Bully for you, Congressman Reyes, for being able to talk to the telcos about their illegal activities. How about the rest of us? How about the American citizens who were spied on illegally and want to know why? Perhaps Congressman Reyes should consider calling those telco CEOs into a public hearing so that we could all learn about their role in the spying program before sealing that deal, before ensuring that those activities will never be examined by a court of law. And all due respect to the Congressman, his judgment on this matter shouldn’t be substituted for that of a federal court.

If this is all much ado about nothing–as Reyes suggests–then let’s hear it. Let’s hear what assurances the telecoms had that their spying was legal after DOJ had rejected it in March 2004. Because a bunch of Republican lawyers sure thought it was illegal. Did Bush simply not tell them they were breaking the law? Because, if he did, then we surely have the right to know that, too.

Copyright © 2018 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/fisa/page/171/