October 14, 2019 / by 


FISA Liveblog And Trash Talk Thread Monday 2/11/08

RevDeb and Selise ask for a forum for discussion of the FISA debate currently on CSPAN-2; who am I to say no? Discuss away my fine friendlies…….

Don’t Gag Ma Bell

I’ve been dissing my Congressman John Dingell by not pointing to the letter he, Bart Stupak (also from Michigan) and Edward Markey sent their colleagues about the FISA bill. But it raises an issue that deserves more attention. After discussing the rationales for telecom immunity, they point out,

For the past five months this Committee has asked, in a bipartisan manner, the phone companies and the Administration to explain whether they acted outside the bounds of the law and what would justify Congress telling a Federal judge to dismiss all lawsuits against the phone companies. The phone companies respond that the Administration has gagged and threatened them with prosecution if they respond to our inquiries. When the Committee requested that the Administration either remove the gag or provide the Committee with the relevant information, the Administration repeatedly refused. Surprisingly, even at this late date, the Administration has not deemed it important enough to respond to our repeated inquiries or even to brief the Committee Members in closed session.

Understand, John Dingell is a long-time friend of the telecoms (and can muster an awesome lecture to constituents on telecom history on demand). And this is the crowd in the House that legislates on telecoms more generally.

Yet the Administration won’t let Ma Bell talk to them–at least not about her overwhelming need for immunity. The Republicans claim that, unless Ma Bell gets immunity, she’ll go out of business. But they won’t let her tell that to the legislators who know the telecom business best.

So it’s not just the Administration’s justifications for their illegal spying program they’ll show to only 20 or so members of Congress in each house. They won’t even let Ma Bell make her case herself. 

I’m traveling tomorrow through Wednesday, so I won’t be glued to the teevee to liveblog the FISA votes. But I’ll try to touch base as the Senate vote develops.

FISA Debate and Votes

Sounds like we’ve got two votes coming up–two roll call and two voice votes.

Feingold: Use limit. Gives FISC option to limit use of data collected illegally.

Bond: Recommend veto, reading from Mukasey/McConnell letter directly.

Jello Jay: This amendment would prevent dissemination of any US person data. No need to add another penalty. Amendment gives statute court whether non-disclosure is required. I oppose this amendment strongly.

Reid: Resume Feingold amendments, and time until 5:25 be for debate, and then vote.

Bond: Four minutes each for next vote.

Feingold: Respond to burden bc require govt to identify info about US persons. Kick in only if govt proposes to disseminate information, in which case minimization already requires govt to identify US person information. My amendment imposes no addition burden.

Bond: Makes no sense to exclude information simply becase [it was illegally gathered]. Calls for roll call.

DiFi hanging out with Jello Jay by the table.

Yes (39): Akaka, Baucus, Biden, Bingamen, Boxer, Brown, Byrd, Cantwell, Cardin, Casey, Conrad, Dodd, Dorgan, Durbin, Feingold, Feinstein, Harkin, Kennedy, Kerry, Klobuchar, Kohl, Lautenberg, Leahy, Levin, Lincoln, McCaskill, Menendez, Mikulski, Murray, Nelson-FL, Reed, Reid, Salazar, Sanders, Schumer, Stabenow, Tester, Webb, Whitehouse, Wyden [no Obama or Clinton]

No (56): Alexander, Allard, Barasso, Bayh, Bennett, Bond, Brownback, Bunning, Burr, Carper, Chambliss, Coburn, Cochran, Coleman, Collins, Corker, Cornyn, Crapo, Craig, DeMint, Dole, Domenici, Enzi, Ensign, Graham, Grassley, Hagel, Hatch, Hutchison, Inhofe, Inouye, Isakson, Johnson, Kyl, Landrieu, Lieberman, Lugar, Martinez, McConnell, Murkowski, Pryor, Roberts, Jello Jay, Sessions, Shelby, Smith, Snowe, Specter, Stevens, Sununu, Thune, Vitter, Voinovich, Warner, Wicker[no McCain]

Reid: Leahy and Specter, recognized for up to 20 minutes on Tuesday, post-cloture.

Feingold: Bill pretends to ban reverse targeting, so long as govt has interest, however minor, in foreigner they’re targeting. Amendment says govt needs court order when acquiring communications within the US. DNI said reverse targeting unconstitutional. This just codifies.

Jello Jay: This says if we’re targeting folks overseas that in effect we have to get FISA approval for each and every time it happens. Amendment causes enormous problems. would hamper operations bc every single person would have to have court order. Technical details are classified. Concern is that it would restrict against foreign neighborhood or city. Unnecessary. I urge defeat.

(This may be inaccurate.)

Bond: Explicit prohibition in current bill. Senator Feingoould wants to replace this, require mental gymnastics. This significant purpose throws a different concern. Would recommend veto if adopted. We have a bipartisan bill. Is it cocktail thirty yet?

Yes (38) : Akaka, Baucus, Bayh, Biden, Bingamen, Boxer, Brown, Byrd, Cantwell, Cardin, Casey, Conrad, Dodd, Durbin, Feingold, , Harkin, Kennedy, Kerry, Klobuchar, Kohl, Lautenberg, Leahy, Levin, McCaskill, Menendez, Mikulski, Murray, Nelson-FL, Reed, Reid, Sanders, Schumer, Stabenow, Tester, Webb, Whitehouse, Wyden [no Obama or Clinton]

No (57): Alexander, Allard, Barasso, Baucus, Bennett, Bond, Brownback, Bunning, Burr, Carper, Chambliss, Coburn, Cochran, Coleman, Collins, Corker, Cornyn, Crapo, Craig, DeMint, Dole, Domenici, Enzi, Ensign, Feinstein. Graham, Grassley, Hagel, Hatch, Hutchison, Inhofe, Inouye, Isakson, Johnson, Kyl, Landrieu, Lieberman, Lincoln, Lugar, Martinez, McConnell, Murkowski, Pryor, Roberts, Jello Jay, Salazar, Sessions, Shelby, Smith, Snowe, Specter, Stevens, Sununu, Thune, Vitter, Voinovich, Warner, Wicker [no McCain]

Reid: Tusday, no morning business, vote on FISA.

Arlen “Scottish Haggis” Specter Enumerates Bush’s Law-Breaking

(Thanks to Selise for the YouTube)

Yesterday, Scottish Haggis went even further than he did the other day the other day in asserting that Bush broke the law when he instituted his illegal wiretapping program. He asserted flatly that Bush had violated two statutes (FISA and the National Security Act).

I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance.

But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President.

I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority.

But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure–really to get the confirmation of General Hayden as CIA Director–before the executive branch finally complied with the statute to notify the full Intelligence Committees.

Now, on the other hand, the courts have been effective–and I will amplify this at a later time because I want to yield soon to Senator Whitehouse and give the opponents an opportunity to speak before 4:30. But in the Hamdan case, the Supreme Court held that the President does not have a blank check in the war on terror. Justices held that the President cannot establish military commissions unless Congress authorizes it. In Hamdi, the Supreme Court concluded due process required that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that contention. In Rasul v. Bush, the Supreme Court held that the Federal habeas corpus statute gave district courts jurisdiction to hear challenges by aliens held at Guantanamo Bay.

Well, this is not Pakistan, where President Musharraf can suspend the Supreme Court Justices and hold the Chief Justice under House arrest. This is America. The balance is maintained only because the courts are open. I believe it would be a major mistake to close the courts on pending litigation when the courts have provided the only effective way to check expanded executive authority, which we have seen in many lives. I will amplify those later, on matters such as signing statements. [my emphasis]

Two points about this. First, Haggis made a special point to say it was the executive branch–and not the President–that violated the National Security Act. You think Haggis is still pissed Dick Cheney bypassed him on the illegal wiretap program?

Also, Kit Bond tried to rebut Haggis’ point by claiming the entire Gang of Eight was briefed on the program. As the schedule of briefings shows, that is false. I wonder how Haggis feels about the fact that Bond is as disingenuous responding to Haggis’ arguments as he is to Feingold’s?

Feingold Slaps Down Bond’s, Mukasey’s, and McConnell’s “Tired Accusations”

Senator Feingold noticed the same thing I noticed today: Republican opponents of his amendments are mischaracterizing his amendments.

[Bond] referred to our concerns that somehow the rights and privacy could be affected by this bill as "tired accusations." I object to that characterization. I think that this is clearly the kind of thing we should be worried about and debating, but I’ll tell you what is a "tired accusation"–the notion that somehow our amendment would affect the ability of the government to listen in on Osama bin Laden–that is a tired and false accusation. The Senator from Missouri said that if Osama bin Laden or his number three man–whoever that is today, after the last number three man in al Qaeda was just wiped out–calls somebody in the United States, we can’t listen in on that communication unless we have an independent means of verifying that it has some impact on threats to our security from a terrorist threat. That’s what he claims. That’s what he claims, that we wouldn’t be able to listen in on that kind of conversation. That is absolutely false.

This amendment, the Feingold Webb Tester amendment specifically does not require a FISA court warrant to acquire or disseminate the communications of any foreigner overseas who is suspected of terrorism. Now Mr. President, there is no separate threat requirement. The amendment merely requires that the government label terrorism-related communications that have one end in the US so they are traceable for oversight. And it simply requires that when the government accesses and disseminates terrorism-related communications that it has already acquired–it has already acquired it–that the court just be informed with a brief certification. So I don’t know where the Senator gets idea, really bizarre idea, that somehow you can’t listen in on conversation of Osama bin Laden. And I don’t think it’s credible to anybody that that would be the case.

Finally, he raises the concern that somehow we’re insulting the FISA court, saying that they’re not doing a good job? Now, what we’re trying to give them is the power to enforce their will. We’re trying to give them the ability to say, "hey wait a minute, you guys aren’t doing what you said you were going to do." That’s all. That’s not an insult to the court. That’s essential for the court to be able to do its job. Let’s worry less about the alleged, and I think falsely [scarequotes] feelings of a secret court and worry more about the rights and privacy of perfectly innocent Americans.

After slapping down Kit Bond’s "tired accusations" Feingold goes on to take on the "tired accusations" of Michael Mukasey and Mike McConnell–many of the same ones that I point out here.

You know, the fact that the Bush Administration already got caught illegally wiretapping Americans already makes their claims suspect. But when they and their surrogates in the Senate misrepresent their program so badly, it really makes you wonder what they’re up to.

FISA Debate Liveblog

Jello Jay on bulk collection (time from opponents, this is a Feingold amendment).

Feingold argues amendment will prevent bulk collection by requiring govt to have some foreign intell interest in bulk info.

I believe will interfere with legitimate intelligence activities. I do not believe it provides additional protections. There important classified reasons underlying that concern.

Why it’s unnecessary: Bulk collection would be unreasonable by Fourth Amendment. Bill provides that collections have to be in accordance with 4th Amendment. Minimization. Cannot primarily target a US person.

Feingold only requires that it certify that bulk intelligence has foreign intelligence interest. But it already requires that the collection is targeted at people outside of the US. Remedy does not improve upon protection in bill. I thus oppose.


A number of inaccurate statements. It’s not an understatement to say they could shut down our intelligence collection.

3979, Feingold and Webb.

Amendment says that FISA is supposed to be foreign to foreign. Focus on foreign to foreign is misplaced. We cannot tell if a foreign terrorist is going to be communicating with another terrorist in another country. It does no good to only collect foreign to foreign. Impossible burden that FISC judges told us shut down their review. [That’s news, saying that it was the review of foreign to US that overwhelmed the FISC.]

This would stop collection. One intell professional said it would devastate the collection. Targetnet versus dragnet.

Blah blah blah; I’m going to misrepresent Feingold’s bill, so I can rebut it.

[Wow. Just looked at the screen. Bond has a whole lot of lilac on. Perhaps he knows that way more people turned out last night in his state for Democrats than Republicans?]

I’m sure the FISC judges would appreciate the notion that they’re doing a bad job. [wow that was dishonest]


Bond referred to our concerns about privacy being "tired accusations." I reject that characterization. I consider the notion that our amendment would prevent our ability to listen in on OBL–that’s a tired accusation. He claims we wouldn’t be able to listen in on that amendment.

This amendment does not require a FISC warrant to wiretap any foreigner overseas. This merely requires the govt label communications that have one end in the US for oversight. I don’t know where Senator gets idea that somehow you can’t listen in on conversation of OBL.

And I don’t know why he says we’re insulting FISC. We’re just giving them the ability to do their job. Let’s worry less about the alleged feelings of a secret court and worry more about the privacy of innocent Americans.

Use limit. Gives FISC option of limiting govt use of information that the FISC later finds is illegal.

Twice M and M said this would put use limits on foreign info. That’s flat out false. There’s nothing ambiguous about this language. Patently false claims–shows the lengths to which the opposition to this amendment will go to defeat this amendment.

Want to address objections that Chair made, that this could affect thousands of intelligence. Under amendment FISC can allow govt to use even info obtained by unlawful procedures if the govt fixes the unlawful procedures.

Even more important, we have to remember what these thousands of communications are. The only things the govt can’t use is info collected through unlawful procedures. My amendment gives prohibition on US person collection some teeth. There ought to be a way to make sure this stuff happens, rather than let the Chair and Vice Chair says it has happened. Otherwise we’re gambling on whether the Administration would choose to comply. I’m not willing to gamble on that.

[Boy howdy, it’s purple day in the Senate.]

Jello Jay (opposing reverse targeting)

Feingold amendment goes too far. Problem is we are revising FISA because we want IC to have the capability to wiretap terrorists who call in the US. It is a significant purpose of this legislation.

[Jello Jay didn’t get the memo about purple day. I guess that’s because WV only gave votes to Huck yesterday.]

I’m going to keep blathering about how reverse targeting isn’t reverse targeting.

Feingold (reverse targeting)

I think that most of my colleagues would agree that this bill should not open up a back door to get around FISA.

The MM letter, which mischaracterizes the amendment underscores why the issue is needed.

Reverse targeting IS NOT prohibited by the bill. It prohibits direct targeting.

If a foreign terrorist is talking to someone in the US, the IC should get a warrant. Without it, they’ll never the full picture of what the American is doing or plotting. They’re saying they don’t want the communications of the domestic communications of a terrorist in the US. THe letter seriously mischaracterizes the amendment. Does not affect ability to collect terrorists calling into the US. Only when a significant purpose is to get info on a person within the US is the govt required to get a warrant. That is how the govt can most effectively protect us.


Interesting that the proponent of this bill says the letter supports his amendment. Call attention to my colleagues, statement from civil liberties office, says concerns have been raised that PAA result in interceptions of US person communication.

Jeff "Mututal Protection Racket" Sessions

Per his usual MO, Mutual Protection Racket is defending the Administration’s use of water-boarding.

"Not a single prisoner has died in our custody."

[WRONG!!! At least two died from exposure, plus the guy beaten to death.]

Shorter Mutual Protection Racket: Don’t say we torture, even though DNI admitted we did yesterday.

FISA is important.

Prevented attacks on "US saul." The people who spy on you "faul the law."

[Sessions is using a tactic that M-M did too–saying that because the SJC was voted down, then everything should be voted down, too. Apparently Specter is a Democrat now.]

[Ut oh. He just went off the ranch, and said the telecoms "helped" the govt–he’s supposed to say they may have helped. Line, please! But he at least has his "retroactive liability" language down.]

[Ut oh, Mutual Protection Racket forgot that Bush wasn’t duly elected.]

Lawsuits substituting fevered speculation and a fevered brow for fact. I don’t know who they are.

[Mutual Protection Racket: George Soros funded Lancet’s study of how many people died in Iraq, therefore it must be Soros who is funding the telecom lawsuits.]

Some say this amounts to amnesty. Amnesty is forgiveness for breaking the law, like forgiving people who broke the law by coming to this country. At no point during the telecom’s actions were they illegal. For heavens sakes. Great Anglo-American tradition, that when called upon by law officer, a citizen not held liable if responding to officer, if officer was wrong.

[Two things. First, Alberto Gonzales, who approved of the request after the hospital meeting, was not then a law officer. Secondly, are you saying the officer, in this case, was wrong?]

Saxby Chambliss

On immunity.

Telecoms good faith effort, determined by AG to be lawful, w/exception of less than 60 day period when AGAG approved it.

I believe program necessary and lawful. This is not a review on President’s program. Statement of importance of telecom assistance to our govt. There is too much at stake to strike Title II.

KayBee Hutchison

Talking up immunity–missed whether she’s hipped to the liability protection thing or not.

Jello Jay

Far and away most contentious issue is immunity [I mean liability protection]. Three amendments will be offered that relate to this issue. Dodd/Feingold. Specter.

Approach to immunity. Critics say it’s akin to Congressional endorsement of President’s wiretapping program. I understand this. Secret surveillance program that would cause suspicion. But anger should not prevent us from addressing the real problems the President has created. Companies that were once willing to help govt may be questioning that assistance. Corporations, no names at present time, have to make money, govt comes to them, as they have in the past on much smaller issues, advice of AG, saying this is legal, NSA require that you cooperate. And they do. Well, of course, they cooperated, but that was some years ago. Not in this Senator’s view. There is no difference between just after 9/11 and now, those who are plotting to do us harm. The fact that it has not happened in no way excuses the American sense of relaxation on the whole subject and therefore we don’t need to do something to keep those people that collect an enormous amount of intelligence. If that were to stop, there would be an enormous amount of intell that would stop. It happens to be true. What is it that telecoms get from this? They get 40 lawsuits. Maybe they’ve been sued $10 billion, maybe $40 billion, I won’t speculate on this at this time. They have no reward at all [well except for being paid to do it] they go ahead and they do it, shareholders get unhappy about it, it could be happening, who knows, at the present time, maybe they will be less willing to do this. Several have done that, several at the beginning have done that. Corporations are in business to help their country [!?!?], they’re in business to make money, they’re losing prestige, reputation, they have angry shareholders. People on my side of the aisle tend to be suspicious of corporations. They are losing they are being sued. It’s costly. It takes away from their energy to carry out their other missions.

[Perhaps the scion of a multi-millionaire family is not the person who should be making this argument.]

We’re not talking about people here, we’re talking about servers, whatever you want to call them, that send Xes and Os, if that stops, we will be in a very sorry situation. I don’t know how to say it better than that. If they have a reluctance to help the govt, in providing the little instruments, then they have a little side action that goes to a particular agency. They have been told they’re compelled to do it. And so they do start to do it. And they’re paying one heck of a price for it. What price do we pay? Nothing, they’re still doing it. What price might we pay, bc they are corporations. The price we would pay would be overwhelming.

Without true cooperation from these companies, the IC cannot collect the information it needs.

I’m not naive in these matters.

It is possible cases continue for years, this won’t result in any new information about Bush’s program. In meantime, poses serious risk to collection program. We’re not about being Courts, about balancing civil liberties as best as we can.

Many argue that those who acted unlawfully should be held accountable. I totally agree. Companies that deliberately seek to evade privacy laws can and should be subject to civil suit. That is not the issue. The intelligence committee spent plenty of time looking over what happened over the last six years.

[Note, they wrote the immunity provision after only having reviewed the letters for 24 hours.]

All activities authorized by President, and all but one (that was done by legal counsel) which stated that activities determined to be lawful by the Attorney General.

[Note, if true, this is huge. Jello Jay just twice implied that BushCO LIED when it told the telecoms the program had been found to be legal after March 10, 2004.]

Jello Jay

3:05 Cardin Amendment, proceeding to vote.

DiFi tries to call up exclusivity, 3919

I voted for bill, indicated I had concerns, filed additional views. In Judiciary, the Judiciary filed amendment included wrt strengthening fact that FISA be exclusive means of electronic surveillance.

Severl co-sponsors. Jello Jay, Leahy, Whitehouse, Wyden, Snowe, Specter, [missed some]

Vice Chair approached her about a modification which would allow a time for Admin to operate outside of amendment.

[Bond wanted 45 days plus 45 more days]

Question is whether I would be able to modify my amendment to limit that time to 30 days, provide limits which our side could agree to, that has not been given to me, will rest my case on exclusivity. I’ll have an opportunity, I hope, to argue it later.

I would like to get another amendment, UC to call up 3919, FISA Court review of immunity.


[Didn’t say anything he didn’t already say yesterday.]


This bill, PAA, had a six month sunset only bc not able to bring complete bill to the floor. This is a bill that should establish a permanent operating authority. As part of the compromise that we reached in passing the bill, we agreed on 6-year sunset.

The committee will protect Americans’ privacy, I promise.

You can see how long we had to fight to get this through.


Would say to presiding officer that I find myself in disagreement with Vice Chairman, originally wanted 4, went to 6, bc of an accommodation. Wisdom on settling on 4, I urge adoption of amendment.


Comments Bond made. Terrorists have no restrictions. No courts, no Constitution, no civil liberties. That’s what makes this nation the great nation it is. PATRIOT Act had a 4 year sunset, we’ve used sunsets that have been shorter.


IC says we must have the certainty of 6 year sunset. Bipartisan blah blah blah.


Introducing Specter/Whitehouse substitution bill, Levin and Cardin added as co-sponsors.

Substitute USG as defendant in suits.

Telecoms and high level intelligence. Substitution, accomplishes objective of continuation of getting this intelligence information and at same time protects constitutional rights. USG steps into shoes of telecom. Govt could not assert govtl immunity. Can assert state secrets. Vital that courts remain open. Congress totally ineffective on oversight and restraining exec authority. Courts have effectiveness to maintain balance. President has asserted authority under Article II to disregard statutes signed by President. Start by FISA, only way to wiretap with court order. President initiated wiretap program in violation of that statute.

President–let me say Exec Branch–violated National Security Act that requires House and Senate informed of matters like TSP. Chair and ranking member ought to be notified of program like that, I was surprised to read about it in newspaper. A long time, lot of pressure, really to get the confirmation of Hayden to notify intell committees. Courts have been effective.

Hamdan. President does not have blank check on WOT. Hamdi, due process includes meaningful opportunity to contest facts, this is America, balance maintained bc courts remain open. I believe it would be problem when courts remain only means of checking executive authority.


Haggis shown exceptional courtesy to me as junior member of SJC.

Critical balance bet freedom and security.

We are proposing a sensible middle path, protects essential equities. Choice to give immunity and take away plaintiff’s case is not fair. Nothing yet suggests that this is not completely legitimate litigation. It is not fair to plaintiffs to take away their day in court. Huge separation of powers problem, intruding into ongoing litigation, taking away due process, without providing basis for judicial finding that the companies acted in good faith.

Whether they acted in good faith. Good faith determination. I hope we can all agree that if the companies did not operate in good faith. We should not be the judges of that. This is ongoing litigation. They have asserted they acted in good faith. We should not rely on one side’s assertion. Most Senators have not read the letters.

This body is literally incapable of making such a determination.

Substituting for the govt. If the govt directed them to break the law, the real actor is the govt. This is analgous to principal-agent directive. Principal is liable for acts of agent. Simple solution, follows law, first in rules of civil procedure. No one has due process summarily taken away. This is, after all, the US of A. Carriers get a judgment in their favor. No one is forbidden to defend themselves in litigation. No intrusion by Congress, no separation of powers trespass, if they acted reasonably in good faith, govt is morally operative party.

Separation of powers. We go all the way back to why we set up the separation of powers.

Quotes Scalia, same quote as yesterday.

I urge my colleagues to consider sensible matters, morally right way to go forward.

Jello Jay

I will oppose this bill for a series of very good reasons.  


Time allowed us by the proponents. (Bond a jerk.)

Permits lawsuits to go forward against govt. (Great, govt has immunity.)

There was notification of this program to the Big Eight.

If Specter doesn’t think Congress has been effective overseeing programs, he hasn’t seen Jello Jay’s committee.

A disaster for intelligence collection to have substitution.

[I wonder how Haggis is going to respond seeing that Bond is treating his amendment just as cynically and dishonestly as Feingold’s?]

McConnell and Mukasey Tell Half Truths

One benefit of the process the Senate is using to develop a FISA bill is that, by rejecting the SJC bill then considering amendment after amendment that had been part of the SJC bill, we begin to learn what the government really plans to do with its wiretapping program, as distinct from what it has said it was doing (see Ryan Singel making the same point).

Recall that the administration has claimed, repeatedly, that its only goal with amending FISA is to make sure it can continue to wiretap overseas, even if that communication passed through the US. We always knew that claim was a lie, but the letter from McConnell and Mukasey finally makes that clear. Even still, they’re rebutting Feingold’s amendments–which they say “undermine significantly the core authorities” of the bill–with a bunch of misrepresentations about them, to avoid telling two basic truths (which Whitehouse and Feingold have said repeatedly, but which the Administration refuses to admit).

  • They’re spying on Americans and refuse to stop
  • They intend to keep spying on Americans even if the FISA Court tells them they’re doing so improperly

As I explained, the letter includes a list of amendments that, if they were passed, would spark a veto. Those include three Feingold amendments:

  • 3979: segregating information collected on US persons
  • 3913: prohibiting reverse targeting
  • 3915: prohibiting the use of information collected improperly

All three of these amendments share one overall purpose–they limit the way the government uses this “foreign surveillance” to spy on Americans.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.

And then, they misrepresent Feingold’s amendment:

It has never been the case that the mere fact that a person overseas happens to communicate with an American triggers a need for court approval. Indeed, if court approval were mandated in such circumstances, there would be grave operational consequences for the intelligence community’s efforts to collect foreign intelligence.

Of course, Feingold’s amendment doesn’t require court approval, it just requires that the IC segregate out information known to be US person data.

Their opposition to Feingold’s reverse targeting amendment is even more dishonest. First, they say that reverse targeting is already prohibited by the bill.

…would require an order from the Foreign Intelligence Surveillance Court (FISA Court) if a “significant purpose” of an acquisition targeting a person abroad is to acquire the communications of a specific person reasonably believed to be in the United States. If the concern driving this proposal is so-called “reverse targeting”–circumstances in which the Government would conduct surveillance of a person overseas when the Government’s actual target is a person in the United States with whom the person overseas is communicating–that situation is already addressed in FISA today.

Note how they’ve turned the language describing “a significant purpose” into language describing the sole purpose–that is, they’ve suggested that the existing FISA bill already prohibits the collection of communications if the primary purpose is collecting communications from someone in the US. But Feingold’s amendment prohibits collecting such communication if one–out of several–purposes is to collection communication from someone in the US.

There’s a reason they’ve played that word game. That’s because, as they make crystal clear, “a significant purpose” of this bill is indeed to collect the communications of those in the US.

To be clear, a “significant purpose” of intelligence community activities that target individuals outside the United States is to detect communications that may provide warning of homeland attacks, including communications between a terrorist overseas and associates in the United States.

That is, one of the main purposes is to collect communications in the United States.

Now I might almost be sympathetic with their point here, if they were at least more honest that that was what they were doing. But then I remember that they wiretapped author Lawrence Wright, and it becomes clear that they’re already going far beyond listening to terrorists speak to associates within the United States.

Then finally, there’s the Mukasey-McConnell response to Feingold’s amendment prohibiting the use of US person information collected improperly. The response to this amendment is so disingenuous that it pays to read the amendment:

(i) IN GENERAL.–If the Court finds that a certification required by subsection (f) does not contain all of the required elements, or that the procedures required by subsections (d) and (e) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, the Court shall issue an order directing the Government to, at the Government’s election and to the extent required by the Court’s order–

“(I) correct any deficiency identified by the Court’s order not later than 30 days after the date the Court issues the order; or

“(II) cease the acquisition authorized under subsection (a).


“(I) IN GENERAL.–Except as provided in subclause (II), no information obtained or evidence derived from an acquisition under clause (i)(I) concerning any United States person shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

“(II) EXCEPTION.–If the Government corrects any deficiency identified by the Court’s order under clause (i), the Court may permit the use or disclosure of information acquired before the date of the correction pursuant to such minimization procedures as the Court shall establish for purposes of this clause.

Basically, this amendment just says that if the government collects information under a program FISC finds to be inadequate either as regards targeting or minimization, and after it has had 30 days to fix those problems, then it cannot use that data. The amendment says the government cannot use information they’ve collected after failing to respond to a FISC requirement to fix it.

This is the same amendment about which Jello Jay complained would require the IC to lose too much information. The Mukasey-McConnell response is almost as silly.

The proposed amendment would impose significant new restrictions on the use of foreign intelligence information, including information not concerning United States persons, obtained or derived from acquisitions using targeting procedures that the FISA Court later found to be unsatisfactory of any reason.

That “any reason,” of course, directly pertains to whether the IC has sufficiently removed US persons from its targets, or sufficiently protected US person data once it collects it. That “any reason” pertains directly to whether or not the IC has–either intentionally or unintentionally–improperly included US persons in its collection. Effectively, the Mukasey-McConnell response reveals that they intend to keep spying on Americans, whether the FISA Court approves of the way they’re doing so or not.

We’ve been talking about this FISA stuff for almost a year now. All this time, the Administration has claimed that it was only interested in wiretapping foreign circuits that transited the US. But that’s obviously just the start of what they insist on doing with this law.

They want to be able to spy on communications between the US and other countries without having to protect US person data through minimization or adequate targeting procedures. George Bush is basically trying to legalize his illegal spying program, all with the willing assistance of the US Congress.

Note: the Senate will shortly start debating FISA again, but McCaffrey the MilleniaLab says it’s time for his walk NOW (he didn’t get his nighttime walk last night bc mr. ew was almost as interested in the results as I was). So use this as a thread to follow what’s going on. Will return shortly–it’s raining and McC doesn’t like to get his hair wet.

White House Writes Pre-Emptive Signing Statement on Exclusivity

(Thanks to Selise for the YouTube)

Feingold: The DNI envisions a government where, if it were technologically feasible, would listen in on every, every international phone call made by its citizens. And read every, every international email. Now that’s a police state, Mr. President, not the United States of America.

The letter from Mukasey and McConnell to Congressional leaders is basically a laundry list of FISA amendments with the Administration’s opinion on those amendments. Here’s the quick summary.

Amendments that would merit a veto:

  • [no number] no communication collected if the govt knows beforehand that it is to or from a person believed to be in the US
  • 3913: Significant Purpose test
  • 3912: Specific Individual Target test
  • 3915: Limits disseminating foreign intelligence information
  • 3907: Straight immunity
  • 3927: Substitution of govt for defendants
  • 3919: FISC review on immunity

Amendments it doesn’t like but that wouldn’t merit a veto:

  • 3930: 4-year sunset
  • 3920: Court review of compliance with minimization

Amendments it very much likes (surprise! They’re both Bond amendments)

  • 3941: Expedited FISA review
  • 3938: Add language on WMD

A pre-emptive signing statement on exclusivity

We understand that the amendment relating to the exclusive means provision in S.2248 is undergoing additional revision. As a result, we are withholding comment on this amendment and its text at this time. We note, however, that we support the provision currently contained in S. 2248 and to support its modification, we would have to conclude that the amendment provides for sufficient flexibility to permit the President to protect the Nation adequately in times of national emergency.

My takeaway? If the Administration says it would accept a minimization review, I say we make it a priority; it would vastly improve the bill. I would love to see the “significant purpose” amendment pass, and have it serve as a poison pill. This Administration won’t even commit that their wiretapping really relates to foreign intelligence! Hell, they might as well say that a minor purpose of wiretapping Democrats is foreign intelligence, because Democrats have different foreign policy goals than Republicans. Also, there are a few of Feingold’s important amendments that don’t appear here. If BushCo don’t oppose them, then by all means let’s have more protection and oversight.

More FISA Debate

Kyl up, talking about "liability protection" for the telecoms.

No, Kyl, it’s immunity.

"in good faith"

"historic tradition in such circumstances"

[no, historically, we expected telecoms to understand the difference between an AG and a White House Counsel]

"liability protection liability protection liability protection"

[I wonder what the focus groups were saying that they dreamt up this orwellian language?]

Shorter Kyl: It’s not really allowed to have the AG or the DNI on the floor of the Senate, so I’m just going to read this letter to you.

The President says you have to give liability to the telecoms or else.

"bipartisan bipartisan 13-2 liability protection liability protection 13-2"

Much that we cannot discuss, because if we did, then the whole point of liability protection immunity would be partly ruined. 

I hope my colleagues recognize the seriousness of this crap clothed in Orwellian language. 

FISA Debate Liveblog

Three amendments up, no votes today. The first two Feingold amendments prohibit bulk collection and reverse targeting. The third, with Dodd, is immunity.

Feingold on Reverse Targeting

Director of Intelligence has testified that reverse targeting is violation of 4th amendment.

Notes Senator from GA has said reverse targeting is possible.

[Placing declassified documents in record]

This confirms that when FBI has interest in American, up to FBI whether to seek a warrant.

A recent DOJ IG report says surveillance disrupted bc telephone bill not paid on time.

Of course, FBI might choose not to seek a warrant because it doesn’t really have a case against that American. I’m afraid to say, the answer appears to be yes. Once FBI gets US identity, the FBI can choose whether or not to follow up.

Even as Administration brought broad new authorities the Administration refused to figure out whether they were violating the Constitution.

I hope my colleagues will support this amendment, it appears there’s no opposition to it (no Republicans present).

Feingold prohibiting bulk collection

This bill allows surveillance of people who are not suspected of any wrongdoing.

Allows govt to capture all international communications, to or from this country, in bulk, for no reason. That kind of communications dragnet would offend anyone who has communicated with friends, family or professional associates overseas. There would be no court oversight whatsoever. Wyden, Whitehouse and I have fought hard to make sure Americans overseas not collected. Imagine Americans’ communications with other Americans being collected in bulk. Nothing, nothing would prevent their communications from being collected and retained.

At what point do we draw the line. At what point does the Constitution mean SOMETHING?

DNI has testified that while bulk collection is not needed, but he did say it would nice. Not a short term bill. Congress needs to act now. DNI has put us on notice that bulk collection authorized and desirable. Legislative silence is consent. We can’t avoid this question. Govt has to certify that it is collecting information from people from whom it expects to collect foreign intelligence.

Opponents say this would prevent collection of intell into or out of enemy city they’re about to invade. But then it would have a foreign intelligence purpose. The reason that absurd scenarios have been raised is because they don’t want to talk about the consequences. DNI testified that if possible, bulk collection would be desirable. Govt would listen in on every international phone call made by its citizens. That’s a police state, Mr. President, not the United States of America.

DNI said it was surgical. Said they had to make up territory with those thinking they’re doing stuff they’re not doing. DNI can’t have it both ways.

Finally, would help resolve serious Constitutional question. Bulk collection in which govt has no interest could be unreasonable under the Constitution. I challenge anyone to explain why the govt should have the authority to engage in bulk collection. Explain why this modest protection cannot be granted. This amendment brings this bill into line with its actual intent. Protects civil liberties of Americans.

Kit Bond, admitting that he hasn’t heard what Feingold said

These issues have been dealt with. We’re not collecting all their communications that they’re sending overseas.

[Uh huh, so you won’t mind if we have this amendment?]

Reverse targeting. All acquisitions must comply with Fourth Amendment.

May not intentionally target a person reasonably believed to be outside of the United States, except in accordance with Title I.

[Jeebus he’s such a sophist.]

Now if somebody is calling a suspected terrorist overseas, one on whom we have initiated collection because intelligence sources certified by AG, this person has significant intell information, then if one were to call that number, it is possible, likely, and we would expect they would find out what is in this call. It is immediately suppressed.

Goddamnit, I lost a bunch because Macs SUCK!! 

Dodd is presenting his immunity. I’d love to have it for you, but Macs suck.

In the interim, Feingold pointed out that Dodd wants us to not legislate solely because Bond has assured us we shouldn’t worry. 

Anyway, I also have a copy of Mukasey/McConnell’s letter to Reid, et al. It’s basically a list of amendments and their thoughts.

Amendments that would merit a veto:

  • [no number] no communication collected if the govt knows beforehand that it is to or from a person believed to be in the US
  • 3913: Significant purpose test
  • 3912: Specific Individual Target test
  • 3915: Limits disseminating foreign intelligence information
  • 3907: Straight immunity
  • 3927: Substitution of govt for defendants
  • 3919: FISC review on immunity

Amendments it doesn’t like but that wouldn’t merit a veto:

  • 3930: 4-year sunset
  • 3920: Court review of compliance with minimization

Amendments it very much likes (surprise! They’re both Bond amendments)

  • 3941: Expedited FISA review
  • 3938: Add language on WMD

A pre-emptive signing statement on exclusivity

We understand that the amendment relating to the exclusive means provision in S.2248 is undergoing additional revision. As a result, we are withholding comment on this amendment and its text at this time. We note, however, that we support the provision currently contained in S. 2248 and to support its modification, we would have to conclude that the amendment provides for sufficient flexibility to permit the President to protect the Nation adequately in times of national emergency.


Shorter Bond: It was bad that Qwest refused to comply with an illegal order.

Shorter Bond: SJC just isnt’ as intelligent as the Senate Intelligence Committee.  

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Originally Posted @ https://www.emptywheel.net/fisa/page/171/