FISA Debate Liveblog

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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.

Bond

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] Read more →

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McConnell and Mukasey Tell Half Truths

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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.

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White House Writes Pre-Emptive Signing Statement on Exclusivity

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(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.

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More FISA Debate

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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. 

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Russ Feingold: We Need to Protect Americans from John Bolton

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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.

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FISA Fight Reconvenes at 2

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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 →
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Cable News

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We’ve been discussing this in comments for several days, but I wanted to pull news together on the now-four breaks of communications fiber optic cables to the Middle East. Much thanks to Hmmm and klynn, who tracked down many of these links.

The first two cables–just off Alexandria, Egypt–went down on Wednesday. Initially, news reports assumed the two cables had been cut by a ship’s anchor, but yesterday Egypt announced that that’s not the case: the cables went down in a restricted area, and no ships were present.

No ships were present when two marine cables carrying much of the Middle East’s internet traffic were severed, Egypt’s Ministry of Communications has said, contrary to earlier speculation about the causes of the cut.

[snip]

The ministry added that the location, 5 miles from the port of Alexandria, was in a restricted area so ships would not have been allowed there to begin with.

Then, on Friday, a third cable off of Dubai went down. Significantly, this cable doesn’t carry India specific traffic. Then, finally, a fourth cable, between Qatar and UAE, went down yesterday. Five days, four cables, and no ships near the first two in Egypt.

Much of the press on this pertains to India because of the impact the outages had, briefly, on India’s call centers. But India has managed to shift much of its traffic to cables going east, through Singapore and Japan. As a result, much of its big business traffic recuperated quickly. Which means the people suffering diminished or no access (this pertains to India, I’m not sure whether the same is true throughout the Middle East and South Asia) are the individual users. Read more →

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Don’t Worry, Isikoff Says, DC Is Not Corrupt and Dishonest

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When the Village needs to plant a story to counter a growing narrative, they know who to call: Michael Isikoff. And true to form, Isikoff writes a review of Philip Shenon’s book on the 9/11 Commission that–while it presents abundant evidence that agrees with Max Holland’s post on the book–still tries to refute Holland’s post.

Holland makes two main points in his post. First (as covered in this post), that Zelikow and Rove carried on back-channel communication after the Commission heads told him to stop. And, more generally, Holland argues that Zelikow used his position to,

… exploit[] his central position to negate or neutralize criticism of the Bush administration so that the White House would not bear, in November 2004, the political burden of failing to prevent the attacks.

To which, Isikoff scolds,

In any case, the suggestion by conspiracy theorists—who have seized on the evidence in Shenon’s book—that Zelikow was serving as a secret White House "mole" is hard to sustain.

Nosiree, Zelikow wasn’t the secret White House mole! While Isikoff includes a quote from Lee Hamilton, a Democrat with a long history of excusing Republican shortcomings, in which Hamilton vouches for Zelikow’s interest in exposing all the facts, Isikoff also presents the following evidence that supports and expands on Holland’s post:

  • After Commission investigator Warren Bass found emails from Richard Clarke warning of "hundreds of Americans [lying] dead in several countries," Zelikow, "disparaged Clarke as an egomaniac and braggart who was unjustly slandering his friend Rice."
  • Isikoff numbers "at least four" calls between Rove and Zelikow; Isikoff repeats Zelikow’s excuse that these were related to Zelikow’s academic job, but he doesn’t include the allegation that Zelikow tried to have his Executive Secretary stop logging his calls.
  • He repeats Shenon’s claim that Rove specifically said that a report that blamed Bush for 9/11 could most easily sink his re-election bid.

So to make his argument that Zelikow wasn’t a White House mole trying to prevent a critical report from hurting Bush’s re-election chances, Isikoff provides the quote of someone not known for candid speech, lauding the report itself. But Isikoff doesn’t refute the claim that Rove and Zelikow were communicating, he doesn’t refute the claim that Rove thought a favorable report was important, and he even adds another witness describing Zelikow as "bullying" the Commision to protect the reputation of his gal Condi! Read more →

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The Watchdog’s Watchdog

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Last month, just as CIA’s IG and Director learned of the DOJ investigation into the torture tape destruction, the CIA also announced that Helgerson and Hayden had agreed on some measures to make the IG process "more fair."

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

Right on schedule, yesterday the CIA announced those "procedural changes." The IG’s office will have an ombudsman to act as a watchdog on the watchdog.

The CIA’s inspector general has agreed to tighter controls over its investigative procedures, agency officials revealed yesterday, in what appeared to be an attempt to soften resentments among agency officials over the watchdog’s aggressive probes into the legality and effectiveness of the CIA’s counterterrorism efforts and detention programs.

The revisions, which include the appointment of a special ombudsman to oversee the IG’s work, were disclosed by CIA Director Michael V. Hayden in an e-mail sent to employees, announcing the end of an unusual inquiry into the performance of Inspector General John L. Helgerson, a 36-year CIA veteran and the man chiefly responsible for the spy agency’s internal oversight.

Most interesting–or troubling, depending on how you look at it–is the requirement that the IG’s office keep senior CIA officers informed of the status of investigations.

The changes include measures intended to speed up investigations and require the watchdog to keep CIA employees and managers informed about both the process and results of investigations.

Call me crazy, but I would imagine that if you tell the CIA Director that you’re about to report that the "enhanced interrogation techniques" the CIA has been doing probably violate international law, then you’re never going to be able to write a report to that effect. And certainly never going to be able to circulate to anyone who can do something about the violations of international law.

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All the News That’s Not Fit to Print

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Michael Roston asks an intriguing question: did the NYT refuse to print Shenon’s story about Rove’s back-channel communications with Philip Zelikow?

While some questions have been raised about the accuracy of Shenon’s report, there’s another matter that we need to address: why didn’t Shenon’s story run in the New York Times itself? Why was it saved for his book instead of run above the fold in America’s paper of record?

The Commission’s report came out in the Summer of 2004, and you’d have to think that some of this story about executive director Philip Zelikow’s dilution of the report would have been in Shenon’s hands sooner. It’s hard to imagine that he wouldn’t tell his Times’ editors about this. White House interference in such an esteemed commission, trying to make sense of the 9/11 attacks and their aftermath as it did, would be a story of the year in whatever year it emerged. So why 2008 instead of 2004 or 2005 or 2006? Did it really take so long for any of the disenchanted commission staff to be willing to come forward?

Now, Shenon has been off the 9/11 Commission beat for some time, publishing only one story on it since 2004. So maybe there’s a very simple answer. But as Roston reminds us, as I’ve posted before, and as Shenon himself reminds us in the other big NYT story of the week, the NYT has a history of leaving some of its reporters’ best scoops off the pages of the Gray Lady. In his story reporting that James Risen has been subpoenaed for the source for a chapter in his book, State of War, Shenon reveals that the chapter in question is one not included in the stuff the NYT printed.

Mr. Risen’s lawyer, David N. Kelley, who was the United States attorney in Manhattan early in the Bush administration, said in an interview that the subpoena sought the source of information for a specific chapter of the book “State of War.”

The chapter asserted that the C.I.A. had unsuccessfully tried, beginning in the Clinton administration, to infiltrate Iran’s nuclear program. None of the material in that chapter appeared in The New York Times. Read more →

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