August 14, 2020 / by 


FISA and the Warrantless Wiretap Briefings

As we await certain doom because the NSA has to rely on FISA to authorize any new warrantless wiretaps (though it can continue all the programs currently in place), I wanted to correct what appears to be a common mistake about the earlier warrantless wiretap program. I’ve seen a lot of people claim that all of Congress knew of the program, that the Gang of Eight got regular briefings about it, that Congress wants the telecoms to get immunity because leaders in Congress want immunity.

The reality–at least according to the published record of those briefed on Bush’s warrantless wiretap program–is much more narrow. And as this fight moves into the House, it’d pay to have a clear understanding of who got briefed and how they claimed to have responded.

The Gang of Eight was not briefed regularly on the program

Kit Bond likes to claim that the Gang of Eight–the majority and minority leaders of both houses of Congress and the majority and minority leaders of both intelligence committees–were briefed on the program. That’s a lie. In general, the Administration briefed the intelligence committee heads, but not the Majority and Minority leaders. The first time the entire Gang of Eight was briefed on the program was when, on March 10, 2004, the Administration tried to get them to authorize continuing the program even though Jim Comey said it was illegal. At the time, the following were members of the Gang of Eight:

  • Denny Hastert
  • Bill Frist
  • Tom Daschle
  • Nancy Pelosi
  • Porter Goss
  • Jane Harman
  • Pat Roberts
  • Jello Jay Rockefeller

After Harry Reid became Minority Leader of the Senate in 2005, he received a briefing on February 3, 2005–by himself, as did Crazy Pete Hoekstra when he became HPSCI Chair in September 2004. There was not any other briefing where the entire Gang of Eight got the same briefing. Though after Risen and Lichtblau exposed the program, Jello Jay received a briefing with the Republican half of the Gang of Eight, and then Reid, Pelosi, and Harman received a briefing (which Roberts also attended).

As Arlen “Scottish Haggis” Specter has pointed out, the Administration was in violation of the National Security Act when, with the exception of March 10, 2004, it limited its briefings to just the intelligence committee heads.

The entire Congress was not briefed on the program

Aside from those members who have, at one point, been members of the Gang of Eight (Harman no longer is, and Pelosi has had two roles in it), just three members of Congress got briefings on the program before Risen and Lichtblau revealed it. The day after the hospital confrontation, Tom DeLay got a briefing, probably so he could tell Cheney that even he could not force through a bill authorizing the illegal program.

And, December 1, 2001, Daniel Inouye and Ted Stevens–as the ranking members of the Defense Appropriations Subcommittee–got a briefing, presumably so they could authorize the NSA to pay the telecoms tons of money to wiretap Americans. (Bill Young and John Murtha got briefings in 2006, after the Administration started briefing more members of the intelligence committees presumably in response to the Risen-Lichtblau revelations.)

Tom DeLay is, thankfully, moot. But the Inouye briefing is interesting in that he was one of the sane Democrats who repeatedly voted with Republicans in support of trashing civil liberties and privacy.

Focus on Jello Jay, Harman, and Pelosi

Certainly, Jello Jay’s example in the Senate is not cause for optimism. Jello Jay attended the March 10, 2004 briefing where the Administration proposed going forward without AG approval, tantamount to going forward illegally. Jello Jay claims he never affirmatively approved the program.

The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program.

And Jello Jay warned Cheney that the program seemed to violate the ban on data mining–at precisely the time when the Senate was banning data mining. Jello Jay should know better than anyone that the Administration broke the law–and that the telecoms continued their cooperation at a point when they didn’t have AG approval, thereby breaking the law.

Nevertheless, Jello Jay supported immunity. You might argue that Jello Jay was protecting himself–except that he left a clear paper trail of his opposition.

But thus far, the House is different. Jane Harman has shown interest in compromising in the past. But significantly, she was not among the 21 Blue Dogs who petitioned Pelosi to go with the SSCI bill just passed by the Senate. Harman has opposed immunity without full disclosure (note, since she’s no longer in HPSCI, she hasn’t seen the documents explaining the legal rationale for the program), and I think if we can keep Harman with the majority, it will keep a number of other Democrats who might cave to Republican pressure.

And as for Pelosi? She has stated clearly that she opposed the program going forward without AG approval; she opposed the program in its most illegal form.

Speaker Nancy Pelosi of California, who attended the 2004 White House meeting as House Democratic minority leader, said through a spokesman that she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting,

So like Jello Jay, Pelosi didn’t exactly approve of the worst parts of this program. And, as Novak describes, with the support of an overwhelming majority of her caucus, Pelosi used her prerogatives to stall Bush’s push for immunity.

For the moment, Pelosi can and is using her position to ensure we get a real compromise bill (and Harman’s support may help keep Blue Dogs with the caucus). And it certainly helps that Silvestre Reyes is writing scathing letters chiding Bush for his fear-mongering.

This fight in the House is going to come down to the roughly 40-50 Congressmen who preferred to side with the Republicans/bow to fear. But so long as Pelosi supports the will of the rest of the caucus, we can win that fight.

Technical Glitches and Minimization

A number of you sent me this Eric Lichtblau story describing how, because of a "technical glitch," the FBI accidentally got all the emails going to one domain, rather than just the emails to and from their particular target.

A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

F.B.I. officials blamed an “apparent miscommunication” with the unnamed Internet provider, which mistakenly turned over all the e-mail from a small e-mail domain for which it served as host. The records were ultimately destroyed, officials said.

Bureau officials noticed a “surge” in the e-mail activity they were monitoring and realized that the provider had mistakenly set its filtering equipment to trap far more data than a judge had actually authorized.

The episode is an unusual example of what has become a regular if little-noticed occurrence, as American officials have expanded their technological tools: government officials, or the private companies they rely on for surveillance operations, sometimes foul up their instructions about what they can and cannot collect.

The problem has received no discussion as part of the fierce debate in Congress about whether to expand the government’s wiretapping authorities and give legal immunity to private telecommunications companies that have helped in those operations.

But an intelligence official, who spoke on condition of anonymity because surveillance operations are classified, said: “It’s inevitable that these things will happen. It’s not weekly, but it’s common.”

My response to this is sort of similar to Kagro X’s (and given all my posts about minimization, I would certainly take issue with Lichtblau’s assertion that "the problem has received no discussion"). This story illustrates why minimization is every bit as important in the FISA discussion as immunity.

Hmm. Minimization. That rings a bell. What was it?

Oh yeah! The FISA fight in the Senate! Minimization was a concern because the Senate bill pretty much gave the government a free hand to suck up every phone call, e-mail, text message, etc. there is, and — amazingly enough — had to be amended on the floor in order to even approach a proper handling of minimization concerns. Curiously, it happened that there was no provision in the new law that said what actually happens if the government, oh, let’s say… doesn’t destroy "accidentally" captured communications. Senator Whitehouse had to try to shoehorn that in as an amendment, and along the way had to agree to soften his language from explicitly authorizing compliance reviews by the FISA court, down to some mumblings about how nothing in the bill should be construed to reduce or contravene the FISA court’s inherent authority to enforce its orders regarding minimization (if any).

Subtle difference, I suppose. The affirmative power to conduct reviews, versus a grudging acknowledgment that a court should be able to enforce its own orders. But not that subtle.

The story actually does sound a genuine mistake. It illustrates the need for minimiz ation. But it doesn’t explain why it is that McConnell apparently abandoned the Democratic bills in August 2007 because they actually required minimization. It doesn’t explain why the Administration is so afraid of oversight on their ability to minimize US person data.

See, I’m not so much worried about mistakes like this. I’m worried about the apparent fact that having real oversight to find the non-mistakes was a deal-breaker in August.

Ode to Donna Edwards’ Wheaties

I don’t actually know that this sudden outbreak of spine and seemingly coordinated messaging among Democrats is the result of seeing Donna Edwards kick a Democratic incumbent’s behind, but she’s a great person and might as well get the credit. Here’s Silvestre Reyes:

Because I care so deeply about protecting our country, I take strong offense to your suggestion in recent days that the country will be vulnerable to terrorist attack unless Congress immediately enacts legislation giving you broader powers to conduct warrantless surveillance of Americans’ communications and provides legal immunity for telecommunications companies that participated in the Administration’s warrantless surveillance program.


If our nation is left vulnerable in the coming months, it will not be because we don’t have enough domestic spying powers. It will be because your Administration has not done enough to defeat terrorist organizations– including al Qaeda– that have gained strength since 9/11. We do not have nearly enough linguists to translate the reams of information we currently collect. We do not have enough intelligence officers who can penetrate the hardest targets, such as al Qaeda. We have surged so many intelligence resources into Iraq that we have taken our eye off the ball in Afghanistan and Pakistan. As a result, you have allowed al Qaeda to reconstitute itself on your watch.

You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.


I urge you, Mr. President, to put partisanship aside and allow Republicans in Congress to arrive at a compromise that will protect America and protect our Constitution.

I, for one, do not intend to back down – not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear.

We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won. [my emphasis]

And here’s Harry Reid:

I regret your reckless attempt to manufacture a crisis over the reauthorization of foreign surveillance laws. Instead of needlessly frightening the country, you should work with Congress in a calm, constructive way to provide our intelligence professionals with all needed tools while respecting the privacy of law-abiding Americans.

Both the House and the Senate have passed bills to reauthorize and improve the Protect America Act. Democrats stand ready to negotiate with Republicans to resolve the differences between the House and Senate bills. That is how the legislative process works. Your unrealistic demand that the House simply acquiesce in the Senate version is preventing that negotiation from moving forward.

Our bicameral system of government was designed to ensure broad bipartisan consensus for important laws. A FISA bill negotiated between the House and the Senate would have firmer support in Congress and among the American people, which would serve the intelligence community’s interest in creating stronger legal certainty for surveillance activities.

That negotiation should take place immediately. In the meantime, we should extend the current Protect America Act. Earlier this week you threatened to veto an extension, and at your behest Senate Republicans have blocked such a bill. Yesterday every House Republican voted against an extension.

Your opposition to an extension is inexplicable. Just last week, Director of National Intelligence McConnell and Attorney General Mukasey wrote to Congress that “it is critical that the authorities contained in the Protect America Act not be allowed to expire.” Similarly, House Minority Leader Boehner has said “allowing the Protect America Act to expire would undermine our national security and endanger American lives, and that is unacceptable.” And you yourself said at the White House today: "There is really no excuse for letting this critical legislation expire." I agree.

Nonetheless, you have chosen to let the Protect America Act expire. You bear responsibility for any intelligence collection gap that may result.

Fortunately, your decision to allow the Protect America Act to expire does not, in reality, threaten the safety of Americans. As you are well aware, existing surveillance orders under that law remain in effect for an additional year, and the 1978 FISA law itself remains available for new surveillance orders. Your suggestion that the law’s expiration would prevent intelligence agents from listening to the conversations of terrorists is utterly false.

Imagine that? A leader from both the House and Senate repeating roughly the same message–Bush should stop fear-mongering and do what it takes to really protect the country. Democrats reasonably successfully countering a predictable Bush attack!

Before you know it, we’ll be adequately represented on the Sunday shows, and we’ll actually discover that if we simply try to win the messaging battle, it might well help us win some political battles.

It must be the Wheaties…

Will The House Honor Their Oath To Office, Or Follow The Senate’s Lead And Cave To Fear?

Some of us, okay, I am referring to myself, thought that FISA was cooked yesterday (really, I have thought this from the second they announced the unanimous consent agreement and bi-partisan extension baloney) and that the fork might as well be stuck in. As I said in the last thread,

…the House is putting on what appears to be a better showing than the Senate, but I have no doubt that it is all kabuki and the deal is done. I am pretty much positive that Pelosi, Hoyer and Boehner have their skids all greased and did so in conjunction with Hanoi Harry and the Senate Stumblebums. It is good to keep in mind that ALL of the representatives are up for election (only a third, give or take a few, of the Senate), so they have a vested interest in putting on a show. When the curtain closes, the final act will have been the same though.

Remember, we thought there was at least a fighting chance in the Senate, and then all those eloquent and moving words by Chris Dodd, all followed by a whopping 29 Senators having the one ethical bone in their bodies to protect the constitution. Depressing. There is no way the House is going to squelch this after the Senate did that.

I still believe that analysis, but I will have to say that the House has put on a better show today than I expected, even after seeing the John Conyers letter issued evidencing that a little fight might be left in the old boys after all.

Cboldt had this to say last Saturday about the interplay between the Senate and House:

This latest push by the progressives, plus the fact that they have another extension ready, give me a little hope; but not much

The number of signatories, and their general “place” in the hierarchy of power, inclines me to think they are being “humored.” Their objection and voice can’t be blocked, and while it’s good to let them express their point of view, I’m not sure there is enough weight of objection in the House as a whole.

Yes, the right things are being said. But not by many.

The procedural details are in accord with the substantive material (e.g., contents of amendments, UC agreement) and a vote breakdown that heavily favors capitulation to the DNI demands. I wouldn’t be shocked if there was another extension, as a token political concession to the objectors, but I don’t expect Congress to send another extension to the WH.

I don’t follow the House that closely and don’t understand House procedure very well. So I’m stuck with mixed messages in that venue. On the one hand, RESTORE passed with a majority (no immunity); on the other hand, the number of vocal opposers to immunity is about the same fraction in the House as it is in the Senate; well under 20%. They can object and put on a good fight, but from what I can see, the numbers aren’t there.

I am interested in where all of you think we stand in relation to the House efforts today and moving forward. Is there any life in the good fight or are we just running out the clock? Please feel free to discuss any other relevant topics you have as well.

Roll Call–Then and Now

Phred asked what we had accomplished with all our work in the last five months. I’ve got a more specific post (among other things, calling out my Senator Stabenow for another one of her ridiculously bad votes). But for now, here are Democrats who voted for the Protect America Act, in August (bold are those who voted differently today; final vote was 60-28-12):

Bayh (D-IN)
Carper (D-DE)
Casey (D-PA)
Conrad (D-ND)
Feinstein (D-CA)
Inouye (D-HI)
Klobuchar (D-MN)
Landrieu (D-LA)
Lincoln (D-AR)
McCaskill (D-MO)
Mikulski (D-MD)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Salazar (D-CO)
Webb (D-VA)

And here are the Democrats who voted for S.2248 today (bold are those who changed their vote since August; underline did not vote in August; final vote was 68-29-3).

Baucus (D-MT)
Bayh (D-IN)
Carper (D-DE)
Casey (D-PA)
Conrad (D-ND)
Inouye (D-HI)
Johnson (D-SD)
Kohl (D-WI)
Landrieu (D-LA)
Lincoln (D-AR)
McCaskill (D-MO)
Mikulski (D-MD)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Rockefeller (D-WV)
Salazar (D-CO)
Webb (D-VA)
Whitehouse (D-RI)

So, if nothing else, we flipped DiFi and Amy Klobuchar’s vote. DiFi issued a statement about her vote–emphasizing that without exclusivity, she couldn’t support the modernized FISA.

I have decided to vote against the FISA Bill before the Senate. This is not an easy decision because I strongly believe that we need to modernize the law relating to the gathering of foreign intelligence, and I support many of the provisions in the Senate bill.

However, I believe this bill didn’t do enough to protect against the assertion of executive power. I have said on many occasions that without the additional language to strengthen and tighten the exclusivity already in FISA, I could not support final passage.

I offered an amendment on this very issue. My amendment, which would have made it clear that FISA is the excusive authority for wiretapping U.S. persons for foreign intelligence purposes, received well more than a majority of this body – 57 votes. But it did not receive the 60 votes required. Given this strong vote, I remain hopeful that similar language will be included in a FISA bill that goes to the President.

There should never be another warrantless surveillance program. And I continue to believe that there should be a strong statement in law making it crystal clear that FISA must be followed, period.

Unfortunately, the bill before the Senate did not include such language and simply didn’t go far enough in protecting against executive power . That’s why I voted against the Senate bill.
[my emphasis]

Apparently, though, 19 of her colleagues have no worries about unfettered executive power.

FISA: On to the House

Sorry I missed all the misery on FISA votes today. Though I can’t say I’m sorry to have missed the Senate committing collective hari kari again.

Which, of course, sends FISA back to the House. The Blue Dogs are no doubt ready to bend over for Bush. Again. But John Conyers isn’t going to go quietly. He sent Fred Fielding a long "to do" list, some of it relating to requests going

First, please provide access to all Members of the House Judiciary Committee those briefings and materials you have made available to 19 Members as of now. Currently, it is my understanding that the entire membership of the House Permanent Select Committee on Intelligence and the Senate Committee on the Judiciary and the Senate Select Committee on Intelligence has been permitted to be “read in” to the TSP program. The only Committee of jurisdiction that has not been offered the same access is the House Judiciary Committee. This is unacceptable and serves little purpose but to impede our Members review of the program and understanding of your request for retroactive amnesty.

Second, please provide the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States. It is believed that this Memorandum is dated either October 17, 2001, or October 23, 2001. Based on the title of this document, and based on the contents of similar memoranda issued at roughly the same time, it appears that a substantial portion of this Memorandum provides a legal determination and analysis as to the nature and scope of the Presidential war powers to accomplish specific acts within the United States. Congress is entitled to know the executive branch’s interpretation of its constitutional powers.

Third, please provide copies of filings, correspondence or transcripts of colloquies with the Foreign Intelligence Surveillance Court about TSP or other warrantless or other electronic surveillance programs, containing legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment to the Constitution, the Authorization for the Use of Military Force enacted on September 18, 2001, or the President’s authority under Article II of the Constitution.

In addition, as per our September 11, 2007, letter, we reiterate our requests for the following documents:

1. All documents from September 11, 2001, to the present, including e-mail, that reflect, discuss, or describe agreements or understandings between the White House, the Department of Justice, the National Security Agency, or any other entity of the Executive Branch and telecommunications companies, internet service providers, equipment manufacturers, or data processors regarding criminal or civil liability for assisting with or participating in warrantless electronic surveillance program(s).

2. An unredacted copy of the notes or program log of FBI Director Mueller provided to the House Judiciary Committee on August 14, 2007, concerning the March 2004 hospital visit to former Attorney General John Ashcroft and other events that former Deputy Attorney General James Comey described in his May 15, 2007, testimony before the Senate Judiciary Committee.

3. All documents from December 1, 2005, to the present related to the investigation by the Department of Justice’s Office of Professional Responsibility (OPR) into the role of Department of Justice attorneys in the authorization and oversight of the warrantless electronic surveillance program, which was opened on January 11, 2006, and closed approximately three months later after OPR investigators were denied the necessary security clearances (OPR Investigation) that reflect, discuss, or describe the following:

a) consideration of the request for security clearances;

b) communications between White House personnel, including the President or the Vice President, and Department of Justice personnel about the OPR investigation or consideration of the request for security clearances; and

c) the reasons for suspending that investigation (since revived by the Attorney General).

4. Since September 11, 2001, all audits, reports, or evaluations of or concerning any warrantless surveillance program(s), whether conducted by government employees or private companies, including any reports as to the effectiveness of minimization standards to protect U.S. persons’ communications.

I would also again ask that you ensure that the appropriate entity in the Administration immediately provide written responses to the following questions, which we have previously submitted last year:

1. Since September 11, 2001, has the Administration conducted any warrantless surveillance in the United States, other than through the warrantless electronic surveillance program the President acknowledged in late 2005 (known now as the Terrorist Surveillance Program), or as explicitly authorized by FISA, or any other warrantless surveillance techniques such as physical searches of home or offices or opening of mail? Are such activities continuing? Is the Administration currently conducting any foreign intelligence surveillance in the United States, other than that explicitly authorized by the Foreign Intelligence Surveillance Act (FISA)?

2. How many actionable leads have been referred to operational entities as a result of acquisitions of U.S. persons’ conversations or communications?

a) Please break down the response as follows: 1) between September 11, 2001, and October 25, 2001; 2) between October 25, 2001, and January 10, 2007; 3) between January 10, 2007, and August 5, 2007; and 4) since August 5, 2007.

b) Of the actionable leads referred to operational entities, what have been the results? Please differentiate between counter-terrorism, criminal investigations and prosecutions, counter-espionage, and in-theater combat operations. Please indicate with specificity whether any attacks have been averted.

3. How many conversations or communications (both incoming or outgoing) monitored under the programs have revealed a contact between a U.S. person and someone for whom there was probable cause to believe they were in or supporting al Qaeda? How many people in the U.S. have had email communications with someone considered to be in al Qaeda? How many of these conversations or communications have actually involved terrorist activity, as opposed to other topics of conversation? How many people have been charged with any wrongdoing as a result of such interceptions? How many terrorist activities have been disrupted as a result of such interceptions? How many people have been subjected to surveillance but not charged with any crime or otherwise detained?

4. How many persons whose conversations or communications were monitored under the programs have been subjected to any other surveillance techniques or searches, such as physical searches of home or offices, opening of mail, etc, whether subject to a warrant or not?

5. Have any U.S. persons whose conversations or communications were monitored under the programs been detained within the United States? Have any U.S. or foreign persons been interrogated or detained outside of the United States, whether by the United States or any other government, in significant part as a result of such monitoring?

6. Have journalists, lawyers, lawmakers (whether federal, state, or local), or aides had their conversations or communications monitored under the programs? If so, how many?

7. How many U.S. persons had conversations (voice or email content) or communications (call or email data) acquired through electronic surveillance programs? In how many of these acquisitions was the U.S. person the target of the acquisition? In how many of these acquisitions was the acquisition incidental? How many warrants for continued surveillance were sought after identification of someone as a U.S. person? How many such applications were denied? Please break down the response between warrantless and other electronic surveillance programs as to the following periods:

a) between September 11, 2001, and October 25, 2001;
b) between October 25, 2001, and January 10, 2007;
c) between January 10, 2007, and August 5, 2007; and
d) since August 5, 2007.

8. How many individuals have been targeted for surveillance under the Protect America Act that involved foreign intelligence generally, as opposed to terrorism or nuclear proliferation?

9. Please identify any telecommunication companies or internet service providers that refused to allow access to communication streams without Court sanction or questioned the terms of the requests or demands which were being made of them and, to the extent that discussions with such companies were conducted orally rather than through written dialogue, please authorize the relevant parties to discuss the content of those discussions with Committee staff and Members. [my emphasis]

Now, Fred Fielding isn’t exactly one for "to do" lists. So I’m not holding my breath for this. But I do wonder whether a coalition of HJC Democrats, Progressives, and folks like Dingell and Stupak can withstand Bush’s harangues any better than the Senate.

FISA Liveblog And Trash Talk Thread Tuesday 2/12/08

Another day, another sellout. That may actually be a good question to ask to ask any Congresscritter you can get your hands on, or voice to, over the next eight months. "What was you personal price for selling out the Constitution and my privacy? As a taxpaying constituent and citizen, I am entitled to an honest answer; what was your price?" What are the odds that even one single critter gives an honest answer? About zero is my guess. Document the atrocities as you see them today, I will be in and out, as I believe Marcy will be. A good lawyer always makes a record for appeal, even when he or she is losing miserably. So, make a record; Phred demands it! Because we are certainly going to be appealing what our Senate, and Congress, is doing to us and our Constitution by their cancerous and derelict actions on FISA.

George Bush’s “Perfect Crime”

You guys are chatty, so I thought I’d put up some of the Feingold speech you’ve been talking about.

The telephone companies and the government have been operating under this simple framework for 30 years. The companies have experienced, highly trained, and highly compensated lawyers who know this law inside and out.

In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration’s warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that doesn’t hold water.

And quite frankly, the claim that any telephone company that cooperates with a government request for assistance is simply acting out of a sense of patriotic duty doesn’t fare much better. Just recently, we learned that telecommunications companies have cut off wiretaps when the government failed to promptly pay its bills. The Department of Justice’s Office of the Inspector General released a report last month finding that, quote, "late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance to the FBI, resulting in lost evidence." Since when does patriotic duty come with a price tag? Evidently, assisting the government’s criminal and intelligence investigation efforts fell somewhere below collecting a paycheck on the companies’ list of priorities.

Mr. President, some of my colleagues have argued that the telephone companies alleged to have cooperated with the program had a good faith belief that their actions were in accordance with the law. But there is an entirely separate statute, in addition to the certification provision, that already provides telephone companies with a precisely defined good faith defense. Under this provision, which is found in section 2520 of title 18, if the companies rely in good faith on a court order or other statutory or legislative authorization, they have a complete defense to liability. This is a generous defense, Mr. President. But as generous as it is, it is not unlimited. A court must find that the telephone company determined, in good faith, that there was a judicial, legislative, or statutory authorization for the requested assistance.

Mr. President, I also want to address the argument that retroactive immunity is necessary because the telephone companies can’t defend themselves in court. When I hear this argument, I can’t help thinking that this administration has staged the perfect crime. Enlist private companies to allegedly provide assistance in an illegal government program, then prevent any judicial inquiry into the program by claiming a privilege – the so-called "state secrets" privilege – that not only shields your own actions from scrutiny, but enables the companies to evade judicial scrutiny as well by claiming that they are defenseless. All the administration needs to get away with it is Congress’s blessing.

And that is exactly why immunity is the wrong solution. Think about what we’d be doing. We’d be saying that in matters of national security, you can break the law with impunity because the courts can’t handle national security materials. That is outrageous. Do we really want to create a law-free zone for crimes that involve national security matters? If the government’s use of the state secrets privilege is interfering with holding companies accountable for alleged violations of the law, the solution isn’t to shrug and give up on accountability. The solution is to address the privilege head-on and make sure it doesn’t become a license to evade the laws that we’ve passed.

In any event, this notion that federal courts can’t handle national security matters is insulting to the judges that this body has seen fit to confirm – and it’s contrary to the facts. Mr. President, cases involving classified information are decided routinely by the federal courts. That’s why we have a statute, the Classified Information Procedures Act, to govern how courts handle classified materials. Pursuant to that statute, courts have in place procedures that have successfully protected classified information for many years. There’s no need to create a "classified materials" exception to our justice system.

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.

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