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.

Read more

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). Read more

Jello Jay Advocates Illegal Spying on Americans

Thanks to Selise for making this YouTube.

The most eye-popping moment from yesterday’s FISA debate came when Jello Jay spoke against a Feingold amendment designed to ensure the government does not use US person information collected after the FISA Court has judged that that particular collection program does not adequately protect US persons from being spied on.

Feingold’s amendment is modeled on one in the existing FISA law, which prohibits the government from using information gathered during an emergency 72-hour period of collection if the FISA Court later finds that there was not probable cause to justify the warrant itself. Feingold simply transfers that concept onto the collection programs of the new FISA bill, with the logic that, if the FISA Court rules that a program does not sufficiently protect Americans, then the government should not be able to use that information on Americans even after the Court has given the government 30 days to fix it.

Barring this amendment, the government can continue to use information collected on US persons, even if it gathered that information in defiance of a FISA Court ruling. Without this amendment, there is nothing preventing the government from simply ignoring one after another of the FISA Court’s rulings. Which says that, without this amendment, there is nothing preventing the government from spying on Americans, because they will be able to disseminate information on Americans even if that information was improperly collected.

But Jello Jay doesn’t think we should put those kind of restrictions on the government. Read more

Russ Feingold: We Need to Protect Americans from John Bolton

Thanks to Selise for making this YouTube. 

When introducing his amendment requiring the government to segregate any information known to be from a US person in a separate database, Russ Feingold used the example of John Bolton to demonstrate the need for protections beyond the weak minimization procedures currently in the Intelligence Bill.

…the supporters of the Intelligence Committee bill claim that minimization procedures are enough to protect Americans’ privacy.

In fact, the minimization requirements in the Foreign Intelligence Surveillance Act are quite weak. They permit the widespread dissemination throughout the United States Government of information about US persons if it is deemed foreign intelligence information which again, is very broadly defined. And they permit dissemination of the identities of these US persons if it is, quote, necessary to understand foreign intelligence information or assess its importance, unquote. Also, also a very loose standard.

Now we know, we know, Mr. President, from our experience in the nomination hearing of John Bolton to be United Nations Ambassador how easy it is for government officials to obtain access to those identities.

And when the FBI receives reports referring to a US person according to a recently declassified government document, it will, quote, likely request that person’s identity, unquote, and will likely meet the requirements for obtaining it. There are other minimization requirements in government regulations, the details of which are classified, but we know in any event that those can be changed at any time. Mr. President, minimization is simply inadequate in the context of these broad new authorities.

You’ll recall that the Senate Dems held up John Bolton’s appointment to the UN because the Administration refused to turn over the NSA intercepts for which Bolton requested the identity of the US person recorded on the intercept.

Read more

On What Terms Will this Administration Spy on Americans?

I think these Senators are really getting tired trying to teach their Republican colleagues about the rule of law and the importance of all three branches of government.

Thanks to Selise for the YouTube. One highlight:

I know the Bush Administration fears and despises Judicial Oversight. Probably with very good reason.

And check out Whitehouse quoting Scalia starting at 7:55.

There was a sense of a sharp necessity to separate the legislative from the judicial power at the founding of our government. This sense of sharp necessity triumphed among the framers of the new Federal Constitution. And it did so–again quoting the decision–prompted by the crescendo of legislative interference with private judgments of the Court.

Nice touch, Whitehouse. 

Just a quick summary of where things stand. The amendments that Harry Reid believes won’t be close will be voted on tomorrow. It will almost certainly go into Wednesday. If Mitch McConnell has his way, though, he’ll push the FISA vote out until Thursday or Friday to hand it to the House with no time to fix it.

One more point. If I’m not mistaken, Harry Reid was really worried about giving Hillary and Obama the opportunity to get back to vote on the Stimulus Package. But apparently they seem a lot less interested in getting back to vote for our privacy and civil liberties.

FISA Liveblog

Reid is on the floor talking about what votes we’ll have tomorrow:


Argh. This means we won’t have 60 there for exclusivity.

Reid and Mitch McConnell had some back and forth on the stimulus package.

Kit Bond:

Thank colleagues for agreeing to a way forward on this bill. Hehehe, it would do no good to pass a good that is good for politics, but does not do what those who protect our country need. With these fixes we’ll have a bill the President will sign.

Shorter Kit: this is very very technical and so we’ve decided to just do away with Congressional review and, while we’re at it, privacy. What Mike McConnell wants, Mike McConnell gets.


In this debate about revising FISA and cleaning up the damage done by the President’s warrantless wiretap program, the Administration expends all its rhetorical focus on what we agree on.

On what terms will this Administration spy on Americans?

The privacy of Americans from government surveillance.

Both Chairmen–Leahy and Rockefeller–have given it their blessing.

As former AG and USA, I oversaw wiretaps, and I learned that with any electronic surveillance, information about Americans is intercepted incidentally.

In domestic law enforcement, clear ways to minimize information about Americans. Prospect of judicial review is an important part of protecting Americans. Bond and Rockefeller have already put into the bill that the authority to review the minimization if the target is an American inside the US. But as will often be the case, the target will often be outside the US. An American could just as easily be intercepted in these situations. This protection (review of minimization) should apply when the intercepted It makes no sense to strip a court based on the identity of the target. It may be that if there’s litigation that a court will decide that it is implied. The mere prospect of judicial review has a salutary effect. The opposite is true as well, when executive officials are ensured that a Court is forbidden to police enforcement, then they are more apt to ignore compliance. Both here, where the FISA bill creates an unheard of limit on Court powers, and in the immunity debate, where we intercede to choose winners and losers. Bad precedent for separation of powers. Those of you who are Federalist Society members should be concerned about this absence of separation of powers. Read more

FISA Fight Reconvenes at 2

The Senate will take up the FISA fight again today at 2:00, now missing not just the three presidential candidates, but possibly others campaigning for their colleagues. Among the many ways last week’s compromise on FISA really hurt our cause, scheduling the vote for the day before Super Tuesday is at the top of the list. [Update: there will not be a FISA related vote today, we’ll have debate. But I still doubt we’re going to hold off the votes until Wednesday, when everyone will be back from Super Tuesday.]

cboldt has a slightly updated post on what the Senate will be voting on here. By far his most important update is this:

The Senate has formally signaled that it will not request a conference with the House, to resolve differences. At this point of the process on the FISA bill, a conference request is premature because the House has yet to weigh in on the Senate’s proposed legislation. While the two bills are different, the formality of disagreement is presently absent. See Riddicks – Conferences and Conference Reports, in particular pp 467-8, which describe the interaction between both chambers.

For those of you hoping we’ll restore some of the protections from the House Bill (sorry, no pun intended) during conference, I take this to mean that we may well never get to conference, and therefore may never get to improve on the Senate bill once the Senate passes it.

So it behooves us to call our Senators and lobby for them to improve this bill now, in the Senate. When you call, I suggest you tell them to:

  • Oppose telecom immunity. While it’s unlikely that we’ll get the 51 majority vote to pass Dodd and Feingold’s amendment, pushing hard against immunity may convince them to support one or both of the compromise immunity amendments (I just learned this one requires majority vote of those voting, not 51).
  • Support court review of minimization procedures. Right now, the Administration is obligated to tell the FISA Court how they intend to make sure your data and mine isn’t rounded up in un-related searches and then used. But they don’t have to prove to the Court that they’re doing what they say they’ll be doing. Encourage your Senators to support Whitehouse’s amendment giving the FISA Court review of whether the Administration is doing what they say they’re doing. As we know, more often than not, they’re NOT doing what they say. Minimization is one of the things that Republicans consistently say they support, so if your Senator(s) is a Republican, remind him or her that this is really about protecting Americans’ civil liberties and privacy. Read more

Richard Clarke to Bush: Stop Fear-Monger to Take Away Civil Liberties

This article, from the man whose warnings about 9/11 Bush refused to believe, ought to be sent to every Senator.

For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections.

I spent most of my career in government fighting to protect this country in order to defend these very rights. And I know every member of Congress – whether Democrat or Republican – holds public office in the same pursuit.

That is why in 2001, I presented this president with a comprehensive analysis regarding the threat from al-Qaeda. It was obvious to me then – and remains a fateful reality now – that this enemy sought to attack our country. Then, the president ignored the warnings and played down the threats. Ironically, it is the fear from these extremely real threats that the president today uses as a wedge in a vast and partisan political game. This is – and has been – a very reckless way to pursue the very ominous dangers our country faces. And once again, during the current debate over FISA, he continues to place political objectives above the practical steps needed to defeat this threat.

In these still treacherous times, we can’t afford to have a president who leads by manipulating emotions with fear, flaunting the law, or abusing the very inalienable rights endowed to us by the Constitution. Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has and still works as the most valuable mechanism for monitoring our enemies.

In order to defeat the violent Islamist extremists who do not believe in human rights, we need not give up the civil liberties, constitutional rights and protections that generations of Americans fought to achieve. We do not need to create Big Brother. With the administration’s attempts to erode FISA’s legal standing as the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil, this is unfortunately the path the president is taking us down.

Click through for the rest–and then send copies to your Senators.

You think maybe Clarke is getting fed up with this false debate?