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.
This really puts the lie to any credibility Jello Jay could have left.
His attitude and actions toward his fellow democratic senators on the
SIC remind me so much of the those exhibited by his uncle Nelson during
and after the Attica disaster, the traditional Rockefeller intolerance
for any opinion other than his own and a brutal mindset to go with it…
and he became a senator from WV because he came there as a Vista worker
and just fell in love with the people of WV… sure, right. New admin
must strip him of his chairmanship and SHTFU.
So any speculation on why Inouye keeps voting with the GOP on this stuff?
By the way I believe “Jello Jay” is now an official term in the congressional record, “Crazy Pete” is on its way there, I think we need to do some work on “Scottish Haggis”. That one just doesn’t roll of the tongue the same way.
I have a gut feel (and a half-written post) that Lockheed is actually a major player on this program. They’re top recipients include Inouye, Mikulski and a fwe of the other Senators who voted for this.
If it’s true, it would be pretty stunning, since Comey is Lockheed’s Chief Counsel.
Ladrieu, Pryor, and Nelson are other big Lockheed recipients who voted for immunity.
Is the Lockheed connection based on satellites?
I don’t know that there is one. Lockheed was bidding for other NSA stuff at the same time as this came about, but I think their involvement might be software rather than hardware.
BUt understand, I DON’T KNOW that they are involved. I just noted that from a donation standpoint, they were dumping a lot of money into the people who flipped on immunity.
Lockheed is still being investigated for their possibly criminally botched “Welfare to
homelessnessWork” program management here in Pinellas County, FL.They obviously have their fingers in lots of Gov programs. This is typical of any company doing “secured” work; they get all kinds of contracts with the justification of they are already cleared.
Inouye’s behavior on this is truly puzzling. I just checked his ratings on Progressive Punch. Overall, he is 32nd in the Senate. On topics directly related here, he is 23rd on corporate subsidies, 24th on government checks on corporate power, 19th on human rights and civil liberties and 27th on making government work for everyone, not just the rich and powerful. Only on war and peace, where he is 37th, is he appreciably below the middle of the Democrats.
Clearly, from the Progressive Punch ratings, Inouye is voting well out of his character on retroactive immunity. Also, I have noted earlier a high correlation of being in on early briefings on these programs and being out of government entirely. I continue to wonder if we still have only a very tiny part of the true scope of what has been going on in these programs, given the inexplicable impact of these briefings on the subsequent political careers of those taking part. If any documents survived these briefings, historians will have full employment for a very long time once classification expires.
Thanks ew.
Anyone who is interested in the possibility that we can increase traction about the truth of this (as opposed to GOP talking points) in the MSM, here are two options:
WaPoo’s Political chat at 11 ET on Tuesday
WaPoo’s Howard Kurtz’s Media discussion at noon ET on Tuesday
My biggest disappointment in all this is with Pelosi. The most obvious thing in the world is that the best outcome is the easiest one to achieve: do nothing. Pelosi can pretty much single-handedly assure that that happens. Yet she still dithers away.
Well, I guess there are two underlying questions.
1) Do you need to authorize tapping of foreign calls in the US.
2) Do you need to authorize the accessing of foreign emails on US servers in large numbers.
The answer to those questions may be yes. What Nancy should have done, months ago, is force the Admin to say what they really needed, so we could have an honest debate about things like reverse targeting and minimization, which are the real atrocities going forward. But I’m not sure you could have had that conversation untli McConnell and Mukasey first made clear what this was all about last week.
Or is you’re Lockheed how do you show your appreciation of information gleaned from warrantless wiretaps of your competitors?
and iirc, jane harman also gave one of the best (if not the very best) statements in august on the house floor against passage of the PAA.
msg to cboldt (who i expect will see this thread) –
at fdl, scarecrow is looking for an update on the senate/house process (committee or other).
i found nothing, but thought you were likely to have something….
at fdl, scarecrow is looking for an update on the senate/house process (committee or other).
There is nothing in the usual formal arrangements. However, Rockefeller, Bond, Reyes and Conyers, in pressers and pronouncements from their respective chambers, were discussing using the time of the recess to negotiate a way forward.
In the Senate, Reid’s request for a House/Senate conference was formally made, and formally rejected.
thank you.
ew, the point about the violation of the National Security Act has been swept under the rug for years.
The Act draws a distinction between a covert action and an Intellignce program. Covert actions notification can be limited to the Gang of 8. They also require a Presidential “Finding”(remember that from Iran-Contra?) Intelligence programs have to go to the full committees.
The wiretapping program is not a convert action under any statutory or interpretive definition of the National Security Act. However, even it it was, and they issued a finding, “a finding may not authorize any action which violates the Constitution of the United States or any statutes of the United States.”
see:
http://www.fas.org/sgp/crs/intel/RL33715.pdf
AFAIK this administration has never complied with the NSA< for covert action or for intelligence programs.<br />
Once they launched their witchhunt after Richard Shelby leaked news that the NSA had gotten an Al Qaeda intercept before 9/11, they just ignored it.
Darling, you merely meant “same,” no? “Sanity” and “voting with Republicans” is an oxymoronic juxtaposition.
EW with Lockheed not getting out of the global telecom industry until Dec 2001, maybe that fact is your answer in terms of their influence. Retroactive took us prior to 2001 right?
You might enjoy this article from 2001 explaining how aspects of Lockheed global telecom (LMGT) groups would be “reassigned” within the company…
http://www.satnews.com/stories2/2dec2001-1.html
more on jane harman
1. her statements (and house debate) pre-aug house cave: aug 3 andaug 4.
2. possible insight into her view of the legislative process. (dkos diary)
Thanks for continuing to hammer on the “Gang of 8″ lies (I still think Delay got briefed on Mar 11 2004 for the express purpose of being able to claim “a majority” of briefed congress-critters supported TSP).
OT but related, and important: a judge in ND-CA issued an injunction (PDF) against WikiLeaks and their DNS registrar last Friday to shut down wikileaks.org. Fortunately, wikileaks has a bunch of other registered domains and “guest” sites (list available here) and DocGonzo posted the wikileaks.org IP number in Stephen Soldz’ recc’ed diary on dKos.
(sorry to interrupt the FISA discussion….)
You area gem. Thanks
EW –
One thing about your summary makes me queasy. You say: “and that the telecoms continued their cooperation at a point when they didn’t have AG approval, thereby breaking the law.” That makes it sound like AG approval would make it legal, which is the strong form of the “Mukasey Argument” that many people reject. I can accept the weak form of the argument, which is what M.L. presented a week ago: viz., that AG approval (which includes OLC approval) implies that the AG can’t investigate or prosecute. But I cannot accept the strong form of the argument: viz., that AG approval makes the behavior legal, even if it isn’t.
Now, if you back off and say that not having AG approval gives the telecoms no cover under the “good faith” argument, then I’m with you. But I reject the idea that a lack of AG approval makes something illegal. After all, in the extreme case, he didn’t approve my driving this morning, but I think it was still legal.
Sorry, AG approval DOES make it legal for telecoms. I’m not using Mukasey’s logic at all here. I’m looking at 18 U.S.C. § 2511(2)(a)(ii):
The telecoms willingness to continue tapping after March 10, when Alberto Gonzales (as WH COunsel) rather than AG Ashcroft or acting AG Comey authorized the program is substantively very different from wiretapping with AG Ashcroft’s authorization beforehand. Because, by law, if the AG says you do it, you do it. But if the WH COunsel says you do it–after the AG balks–then you’ve got to stop, you no longer have legal authorization.
Right. And for JTMinIA, what this means is that you have to distinguish and discriminate on what you are referring to as “legal” and “illegal”. With an AG certification that appears valid and proper on it’s face and four corners, it is proper, and indeed compelled to some extent, for the telcos to comply (part of why I have consistently said they have no need whatsoever for immunity and that such demand is all about the Bushies); that does not, however, mean that the Administration was operating reasonably within the law to make such a certification. Indeed, I believe it is the position of most here that the Administration was not so reasonably within the law at all.
Thanks very much.
It would be great if just one attorney at one Telecom would leak documents.
Shew. I was waiting for my legal backup to arrive.
5 – or at least one person with which my mirror is acquainted might think it was very understandable with him as their chief counsel
BTW – has there been any stories or spec linking the cut ME cables with the Hezbollah assassination? The one where our State Dept has gone out of its way to taunt Hezbollah in the assassination aftermath, despite the repeated assertions over the years by the Intel community that while al-Qaeda sleeper cells are not much of a threat in the US, Hezbollah does have the organization and the embeds?
On good faith, what I come back to over and over is that both FISC chief judges were briefed on the program, BOTH told DOJ they thought is was unconsitutional, and BOTH were so adamant about it being unconstitutional that they set up firewalls (promptly violated by DOJ) to keep the unconstitutional program fruits out of the FISC, even though that court is an Intel court.
Well, actually, it isn’t an intel court anymore, what with the complete breakdown of any differentiation between criminal and intel gathering and the ability of the DOJ to now get FISC warrants on Americans with no showing of probable cause of crime, as long as “some” part of the reason for spying on them might be intel gathering.
Still, think about how unconstitutional the program had to be, if FISC demanded complete sequestration, even from its function as only approving intel surveillance. And how does anyone make a “good faith” argument if BOTH SUCCESSIVE FISC Chief Judges told DOJ they though the program was unconstitutional?
It really leaves telecoms coming in and saying that they “believed” the OLC position that IF George Bush says do it, it BECOMES the law, like a secret royal decree but better (since for hundreds of years there were checks on royal decrees)
And think how unconstitutional it STILL was, after the “Comey fix” (which I still think went more to keeping DOJ lawyers from being in violation of FISC orders than to complying with the Constitution) for Judge Taylor to rule it unconstitutional and for ex-FISC Chief Judge Lamberth to take to the talk circuit to expressly say that the “Bush way” was much worse than following FISA and to give details on how he issued three orders from his car to circumvent the “takes so long” meme.
14 – Amen, and also on the failure to brief the Gang of 8 on the covert actions, like kidnap, torture, childnapping, conspiracies to ship to foreign countries for torture, etc. And also on violations of the Act relaing to the covertly planted domestic propaganda through Miller and onto NYT front pages.
9 – but I think their involvement might be software rather than hardware Didn’t one of the posters here who knows the tech end indicate that the reaons Telecom cooperation for the data mining was probably so important was because of proprieatary algorithms or something like that, so that they probably are directly involved in the data mining searches via use of their software, which they weren’t likely to have just handed over to the gov ? Or being as non-techie as I am, did I misremember or just flat get that wrong?
No, I think I said it (therefore, not a techie). But it was based on a NYT story, so I think I’m on safe ground. Thing is, I’d imagine the telecoms (the ones we think of as telecoms) would have better algorithms than Lockheed, so I don’t expect that’s what Lockheed is contributing, if it is in fact contributing (which I don’t know).
I wonder if the algorithms commentary might have been in relation to conversations we were having in thread about meta-data versus all-data mining…as noted a number of times, I’ve had a nagging concern that the reason the wingers were going after Google was its algorithms and a possible lack of cooperation with the administration (along with Google’s liberal bent). Why was Hastert up in arms about possible privacy violations by Google, when the entire enchilada had been swept up by AT&T for NSA?
The Lockheed participation in this mess probably relates to the retroactive immunity for telecommunications providers. I wonder if Lockheed provided help with gathering communications where AT&T couldn’t; I also wonder if Lockheed had other exposures that might have been covered by retroactive community, like live satellite feeds provided at the request of the administration…
Couple things:
1. Mary remembers correctly! Twas me who talked about the Telcos and their database query algorithms back when you lived at The Next Hurrah. The point I made then was that the Telcos have already developed their own proprietary databases and queries, and that it was unlikely the folks at NSA would start from scratch to develop their own.
Twould take many, many person-years for the NSA to build the same from scratch, so it is not unlikely that the Telcos are doing the data-mining and “community-of-interest” mapping for the Administration as “contractors” (or as some would more accurately state it, as fellow co-conspirators and part of the criminal cabal).
2. Lockheed – for over the last 2-3 decades, Lockheed has been a significant player in providing IT services/solutions/processing for many of the classified organizational actors in the US Government. I know this personally from working with Lockheed.
You need to understand that this is not at the “hardware/software procurer” level, but a deep, intertwined processing of data level. The US Government does not get its information by processing the data itself. The US Government, spread across many of its classified organizations, is the recipient of data processing done by 3rd-party contracting organizations like Lockheed and Boeing.
For the most part, the US Government does not have its own IT organizations, but instead relies upon public and private business corporations to fluff and stuff the data into “information” fit for government decision-makers’ consumption.
This is another reason why we should find some other descriptor than “Telcos” to label the miscreants who are at legal risk. The Telcos are just the obvious, fattest, easiest targets, but the many of the real 4th Amendment violaters are in fact some of the biggest, bloodiest killer sharks in the Defense/Intelligence/Law Enforcement wading pool. Like Lockheed, like Boeing!
Bullseye.
My assumption is that that processing includes proprietary Zip plus four software from the United States Post Office.
In my last job, we designed and built servers for everyone. A necessity of testing new designs/builds was testing server loading. I can think of 3 different pieces of test equipment from 3 different makers that we used that was capable of generating, monitoring, saving, and sorting ALL of the data from banks of servers. If you don’t generate your own traffic, you can just MONITOR, save, and sort the data going through the server bank. This is a 100% justification for making the equipment and the existence of any companion software.
I don’t think we can nail the equipment/software makers for their involvement. It’s kinda’ like the “head shop” defense in that all that stuff they sell can be used for tobacco; a legal product.
Connected to my comment at @38 and buttressing its point is set of comments (again coming from Mary’s Frontline linkset):
This article from the NYTimes was what had me thinking about the Lockeed/satellite connection. Has something like this been implemented already? If they have physical addresses for phone lines they are monitoring, it seems likely to me that they could use imagery to track vehicles and faces at these addresses.
Oh, man. It’s going to be another of those days.
EW –
My point concerned the difference between “legal” and “not subject to prosecution.” Maybe this isn’t very important to most people, but for some reason I care about it. It makes me queasy when something that isn’t subject to prosecution is said to be legal when it isn’t. Things don’t become legal, in my mind, when the statute of limitations runs out, for example.
I take the “are authorized” here to mean “legal.”
I am still puzzled about the separate briefings that were given to various members of the Gang of 8… That just strikes me that selective information was given, and maybe the Democratic members were not given the entire picture — and the Republican members were given greater information. You would think that they would all receive the SAME information if that group is to work cohesively, but then there is not much logic to anything that has taken place in this administration…
So, Nixon was impeached for wire-tapping his political oppenents. Hello, hello, hello!!What am I missing here? I would suspect the the Bush Adm has been wiretapping the Dems and other political interests for years. That’s why they thought a Permanent Republican Majority could be established.
EW, if the Bush Adm started wiretapping before 9-11 as was reported, then how come 9-11 wasn’t prevented? Was it because the Bush Adm was too busy wire-tapping political opponents, that they missed the intercepts regarding 9-11? It would certainly make sense that the administration would not want that to come out – that they were wiretapping prior to
9-11. They would have egg on their face and have to fess up to illegal wiretapping and the fact they dropped the ball on 9-11. Once 9-11 happened, it becomes a moot point. Everyone was on the bandwagon to catch the terrorists and it gave the Bush Adm a way out.
I have been wondering why no one has picked up on this before. It isn’t a streach to ask them why they actually started the program, since they were provably ignoring any threat to the US from anyone other than the Dems (Condi-sention’s PDB on OBL).
It is very provable that protecting the country was NOT the reason for domestic spying.
From Warfare to Welfare, how Lockheed Martin Is Profiting From Running Welfare to Work Programs
Much appreciated. I had not heard of this.
I don’t think that Condi realized that her statement “we had no idea they would use planes,” would go as far and wide as it has. She didn’t say, “we didn’t have any idea this would happen,” she used the term planes.
The other morning, someone called into Washington Journal on CSPAN and asked Nadler in a round about way, if he thought that the Dems had been a target of domestic spying (I’m paraphrasing the question, but you get the gist). He kinda smiled in a strange way, but never really answered the question because the caller had a really long winded question (kinda like my explanation here).
Anyway, back to 2001, when Bush came into office, the bombing of the USS Cole had just happened. You need to get the book, The Man Who Tried To Warn America, by Murray Weiss, something like that. PBS Frontline did a special on it as well. Its all about FBI agent John O’Neill and how he was hot on OBL’s trail for years, but kept getting shut down at the highest levels of the State Dept and the FBI. After reading that book twice, I have wondered if illegal spying started prior to 2001.
After reading the posts about Lockheed, they got out early in 2001. PNAC was written in 1997. I beleive that political opponents were the targets as well as the 2000 elections. I’m not outwardly accusing Lockehhed but it seems to make sense.
They know they have been spied upon in at least 3 different ways. I don’t know how long they’ve known, nor do I know exactly how widespread this knowledge is. But there are elements within Congress who know that they have been compromised and thoroughly. Keep watching the emails scandal.
The admin last week gave the command to destroy in orbit in the next few weeks a nonfunctional satellite launched a couple years ago, rather than let it come down on its own. All the chatter about turning on the DHS’ US domestic surveillance satellite network died out rather suddenly, Timely developments?
I probably have mixed the torture scandal with the wiretap scandal, with respect to generic disavowals by Daschle and Bob Graham concerning their having been partly unbriefed, if there is such a disingenuous non-double-entre in politicalspeak. My recollection of those two former G8ers’ remarks in the press was neither would provide specifics in a public forum but both seemed eager to review their beefs in closed hearings, or, at a minimum, in a public hearing duly constituted in congress for precisely such a purpose as doing the due diligence in the instance of a rewrite former statute. I think a lot of the thread remarks here have interesting reflections on the dispersed processes the post tries to elucidate and organize. In one state whose meeting laws are familiar to me, there is a firm proscription against serializing public meetings; but at the federal level the admix of secrecy and an adventuristic executive preferring to shield its unilateral proclivities, affords more obscurity. I wonder if the churn in membership in the respective committees could contribute to an unstated congressional reluctance to reassert a requirement for continuing viability of its own rules assuring checks and balances. Wars provide room for much hype, a zone congressional Democrats have elected to avoid during the various smears and legal threats which the political arm of the white house employed forcefully during the initial eighteen months following the RisenLichtblau NYTimes story. On the tech side, I remain open to all the possibilities writers in the thread suggest, given I have prescinded from learning the new technologies involved, having moved elsewhere in my pecuniary career to a place that examines other sciences altogether. In that regard I would suggest evaluating some of Lockheed’s competitors on several platforms, both software variety, and communications based. I rarely even peruse silicon valley sites these days, but was looking at some things both Qwest and Sun have been doing recently, and happened upon a nifty IT support page designed as a defense contracting portal; it seemed like a realm deserving of study; and it is true these folks are substantial donors in political campaigns, as well as having helpful expert lobbyists to guide legislators in designing meaningful ‘language’.
Got it. Thanks. Sort of like, if someone holds a gun to my head and tells me to rob a bank, I’m not legally responsible for committing the crime (unless I’m Patty Hearst, I guess), but the person with the gun still is.
23 – I don’t think the telecoms ever received a 2511(2)(a)(ii) certification. I know that they have pretty much admitted they did not in the CA litigation. Plus, despite the grief Spectre gets and deserves, he asked Comey the “nail it down” questions, about whether or not there was any statutory basis for the writing that Comey was being asked to sign off on while Ashcroft was in the hospital and Comey was pretty clear that there was no statutory basis for such certification.
Comey and Spectre both know all about 2511(2)(a)(ii) and the fact that they are saying that the certification being given to the telecoms was not one required by a statute, IMO, pretty much sums up, together with the telecom posture in the CA litigation, that the certification was not and did not attempt to be (and did not qualify to be) a 2511(2)(a)(ii) certification.
I also think there are places where 2511(2)(a)(ii) falls apart for what little is known or speculated about tehprogram. The primary one is that if there is no law that exempts the AG from needing a warrant, there can’t really be a certification under that section. The section contemplates compliance with statutory requirements that do not exist, because there is no law or statute that allows for the collection without warrant, of the kinds of collections contemplated by “teh program” [which seems to have gone well beyond foreign power (or agent) to foreign power (or agent) exemption from the warrant requirement under FISA and well beyond the 3 day emergency surveillance without warrant also allowed under FISA].
Basically – I think they did what they did in the SWIFT situation – created out of whole cloth and with no statutory basis “administrative warrants”
Still, this is a point that I like to make to people on immunity. There is ALREADY immunity for both warrants and compliant certifications. Only if there is an AG certification with no law providing warrant exemption is there no immunity. That’s why I like the “alternative” of offering up “immunity” for all foreign power interceptions (where ‘al-qaeda is calling’). Those, without this issue of US based switches (and I still do not believe, based on the FISA language, that a FISA court has said a warrant is needed for foreign power to foreign power interception of spoken communications – no matter where the ’switch’ is located – – – I really think if there is a US switch based ruling it has to do with non-spoken communications, like emails, or the broad dragnetting of ALL foreign communications, not just foreign power(or agent)communications, or the dragnetting of US communications in the initial passes). That kind of immunity ties to all that Bush is admitting (he is not admitting dragnetting all foreign communications or to dragnetting US communications where *al-Qaeda* (ie, a foreign power or agent) isn’t part of the call. So you offer nothing really, yet seem to offer everything for what he has admitted is being done and you force them to say why that immunity is insufficient – iow, force the lies into the open.
So that everyone knows that the fight is over immunity for intercepting and eavesdropping on calls where NO TERRORIST was on the line.
I understand what you, and cboldt, are saying here; but I am not sure it is dispositive. For starters, there has been no discovery, nor specific disclosure in the 9th circuit cases; they literally don’t know what the telcos (AT&T being primary, but not exclusive) were operating on. It is quite possible that parts of “The Program” were covered by 2511 certs, and that other parts were not. As you know, the Administration has constantly moved their pea in, out, and around different shells so that we really have no coherent idea of what was going on. From my understanding, the plaintiffs in San Francisco have certainly not ruled out at least some coverage by 2511 certs.
Now, that having been said, I don’t believe that EW was making the broad point you assume, at least I didn’t see it that way. The point I saw (maybe thats because it was all I was personally contemplating, but what the hell) was that certain legality could have been supplied for certain acts pursuant to a valid on it’s face 2511 cert., but even that could not have covered the period where AGsquared was the undersigned; assuming that is what happened.
Rockefeller, shortly after that, from the floor of the Senate …
– Comey and Spectre both know all about 2511(2)(a)(ii) and the fact that they are saying that the certification being given to the telecoms was not one required by a statute, IMO, pretty much sums up, together with the telecom posture in the CA litigation, that the certification was not and did not attempt to be (and did not qualify to be) a 2511(2)(a)(ii) certification. –
The SSCI committee report comes out the same way. The certifications were “under the color of law.” That and “good faith” are the foundation for immunity.
28 – not so much that they are legal – rather that they are immunized. The actions under sub(i) are stated to be “not unlawful” but for (ii) they are basically providing a statutory good faith safe harbor and saying that you are immune from suit/liability if you act within the safe harbor.
Safe harbours are for when there is some good faith dispute on what may or may not be allowed, legally, and keep in mind that FISA has not really been tested, legally, (because of its secret setting) with respect to whether or not it violates the 4th amendment by allowing govt spying on US citizens based only on a showing that they are in contact with a foreign power and not based on a showing that there is probable cause to believe they committed a crime. With the changes to FISA, where now the DOJ can go on trawling expeditions, trying to find evidence of a crime, based merely on making “some” minimalistic showing that they thought they might be able to get some intel by spying on a US citizen, it is a much more murky situation now.
In any event, the section goes on to state,
**********
… No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.
**********
So immunity really already exists for telecoms unless they did not get a 2511 compliant certification. And the pretty unanimous consensus from the SJC members seems to be that they did not.
Though some do make the distinction on the March 10 one.
We know, given their public statements, that the post-March 10 certification shouldn’t even be taken for a good faith certification, since it was signed by Gonzales. That’s what keeps DiFi up at night, as distinct from the rest, which keep Dodd up at night.
So immunity really already exists for telecoms unless they did not get a 2511 compliant certification. And the pretty unanimous consensus from the SJC members seems to be that they did not.
I think SSCI is unanimous on that conclusion too — whatever certification was provided was NOT in compliance with 18 USC 2511.
The term “lawful” is used without definition, hence argument about whether the statement “the surveillance was lawful” is true. The proponents of immunity use a broad definition of “lawful,” whereby surveillance that are is in violation of the telecom-surveillance statutes are deemed “lawful” due to being within inherent Article II powers, or some other extra-statutory logic.
cbolt –
Why did McConnell reject a conference? Is it because Reid might have included the “wrong” people (in McConnell’s opinion)? Is it because they don’t dare face Conyers and/or Reyes? It is because they want to stick with the “bipartisan” meme, playing all or nothing? I don’t quite get this.
Why did McConnell reject a conference?
He wants to jam the DNI-written bill through the House. He said that a conference is unnecessary because a majority of the House will approve the Senate-passed bill, if the bill is put to a vote before the House.
38 – thanks so much. That’s the discussion I’m thinking I remembered. It might also be why McConnell can get by, without much objection from some of the intel guys, with saying that the telecoms won’t “cooperate” without immunity.
Kind of like the Saudis let the Brits know they wouldn’t “cooperate” if the BAE investigation went forward.
I mean, it’s one thing to honor a warrant that asks for a tap on certain phones, but it is something different to provide your proprietary algorithms and experienced personnel to respond to open ended requests for creating datamining searches.
47 – that’s what I get, that there was an attempt to paper out something that did not fit under the existing statutory immunity.
And again I have to ask – with two successive FISC judges telling DOJ the program is unconstitutional, how does anyone have good faith?
But I do like the color of law aspect. I think it is an interesting concept to see if a Bivens type action that isn’t foreclosed by common law qualified immunity can be foreclosed by statutory immunity – if Congress has the power to immunize for grave violations of the Constitution, isn’t that just basically the power to extra-Constitutionally amend?
I don’t think they’ll be able to kiss litigation goodbye, but the statutory damages of FISA was awfully helpful.
Personally, i consider that an Unconstitutional and prohibited taking from the plaintiffs/claimants. I actually have some more detailed thoughts thereon that I hope to get to soon….
… with two successive FISC judges telling DOJ the program is unconstitutional …
I don’t think we know that. I think FISC said “the action is outside the framework Congress gave us.” Same sort of thing FISC did when Clinton sought a warrant to enter and bug Aldrich Ames house. The request was outside their statutory framework (since been remedied), but most likely, the warrantless entry was not unconstitutional.
As for the “color of law,” I was somewhat surprised to see that offered as why the warrantless program of Bush justified immunity. I just checked the SSCI report, and the term “color of law” is NOT in there. The phrase was uttered by Senator Bond on January 25th.
True perhaps, but you know that is where they are heading….
How long can the House leadership refuse to bring the Senate’s bill up for a vote? (I’m very weak on this sort of rule.)
How long can the House leadership refuse to bring the Senate’s bill up for a vote?
Forever. It’s an independent body. Plenty of bills pass one chamber, never to be taken up by the other.
damn, I slept like a dead person last night
what’s up with that
my sinuses are clear, my heartburn is gone
being dead is da bomb
60 – the reported story is that after being briefed on what the program involved, they both expressed a concern that it was unconstitutional
http://www.washingtonpost.com/…..02511.html
I think if it was just info gathered outside of the framework they were used to authorizing, they wouldn’t have been so adamant about firewalls to keep that info out of their court. After all, they were used to dealing with info as the basis for a FISA request that came from non-FISA sources, especially with respect to foreign country acquired, generated or obatined info.
I really do think the Leonig story, pretty ignored, may supply a lot of the gapfillers for the Comey testimony.
The procedural review?
The greater emphasis on the law suddenly found at DOJ?
I really tend to doubt the program got two different suspensions in about the same period of time – one from the FISC Chief Judge’s actions and one, wholly independent, from Comey’s actions.
I’m thinking that Comey refused to let Ashcroft sign something that would put him on the hook for perjury charges and that Comey refused to sign that too – and that was the source of the the sudden respect for the law.
I also think that the program really never changed much based on Comey’s actions (and that he didn’t care about the FISC concerns about the unconstitutionality of the program, just about being personally on the hook for perjury) and instead all that changed was that NSA put a better tagging system in place and had to give DOJ more info in support of that tagging system so that they didn’t make the al-Hariman mistakes on a repetitive basis. OTOH, with people in place who don’t care much about perjury bc of their absolute certainty of both immunity and secrecy, things may have become a little more lax again after Comey, Goldsmith and Baker all left.
After all, what exactly are the limits for DOJ lawyers who will sign off on wanton depravity that every sane person realizes is torture, as being somehow “excluded” from the defintion of torture?
Add in Judge Taylor saying the program is unconstitutional in writing in a published opinion (and the 6th did not reverse her on that – only on standing) and Judge Walker saying that if the program involved what has been described, there is no way anyone could have thought it legal in good faith, and you get a pretty significant line up of the Judges who actually have information on the program and none of them give cover to the telecoms.
So far, the cover is only coming from the refusal to find standing and the acquiescence in allowing gov to invoke “state secrets” to cover up its crimes.
60 – whether they use the phrase or not, if they were relying on an AG certification (and I think that even the immunity legislation proposed indicated immunity only for eavesedropping that was AG authorized), even though it was not a 2511(2)(a)(ii) certification, a color of law aspect is kind of inescapable.
As I said above, a “color of law” position is inescapable; by nature, it has to be part of their stance. Now, as to the rest of it, here is the deal as I see it. I think we are all in agreement that what the Administration did, and caused to be done, went well outside of the bounds of FISA and related statutory authority. we may not know the precise ways, but it is pretty evident that said bounds were exceeded (Crikey, we would not be having this discussion if that were not true). But they played very fast and loose in the testimony discussed above about what was and was not “teh program”; so when Comey said, and others seem to think, that “X” did not rely on statutory authority, we don’t know what “X” is, or what was done on the stuff on either side of “X”. This is why I do not rule out that there may be 2511 certs involved as to some portions of what was done. There may well be, there may be bastardized 2511-like docs conjured up, or there may be something entirely different. I can guarantee you, however, that the telcos didn’t do this shit on a wing and a prayer; they have some kind of documentation, and rather good documentation at that, protecting their butts, or they don’t play ball. That is just how they do things; always has been, and it didn’t change here.
And where might we find those annual expenditures of public funds buried in each year’s appropriations? Or would they be in Mr. Cheney’s favored “black budget”?
66 – FWIW, I think they basically dummied up, with no statutory authority, administrative warrants, in the same way that they did for the SWIFT program (the administrative warrants that they EU privacy court threw out and berated the banks for complying with since they were clearly outside of the law).
I’m guessing there is already an indemnity agreement of some kind in place, but I have to think someone is sweating that a bit too, since if the compliance was illegal, then it’s hard to say an indemnifcation for performing illegal acts is enforceable. I also think that a big element of this involved, as EW has pointed out, the metadata and they may think they have someouts on that front, plus there may well be this grey area of “foreign to foreign” calls
Although FISA authorized warrantless interception of foreign power calls, it didn’t authorize warrantless interception of ALL foreign calls of any kind – but they may have thought that they had some decent grounds to argue that a US court had no jurisdiction over foreign to foreign calls, so they could datamine foreign to foreign with impunity. Then, they bring teh program within the confines of the FISC and a few minutes later, they end up with the decision that, uh, yeah, if the switch is in the US, FISC does have jurisdiction over it, and FISA is EXCLUSIVE and FISA only allows warrantless taps of foreign power calls – not wholesale sweeps.
one possiblity at least, fwiw
No – I think we are on the same page with that particular point – that even if you believe they were gettin 2511 certifications, those can’t be supplied by WH counsel for the gap period when the AG wouldn’t sing off.
I think where we get onto different pages was that it sounded to me as if EW was saying that while an AG certification was being given, it would pretty much automatically “count” as a 2511(2)(a)(ii) certification and I don’t think that is right (the certification has to spell out that no warrant is required by law and be specific etc.) and I think that the statements by many of the people involved have indicated that at least the parts of “teh program” that they have been talking about from time to time have not met the 2511 (2)(a)(ii) safe harbor requirements. I also havent’ seen any pleadings that attempt to “get around” that safe harbor or any invocation by the telecoms that any actions they took were pursuant to certifications given under 2511, which makes them immune from suit, even if the certifications themselves need to be kept classified/redacted because they reveal sources/methods.
In any event, I won’t say there was never a 2511 certification for any part of what might be teh program given, but I am pretty sure that 2511 wouldn’t allow for a datamining using the telecom algorithms under the specific assistance portion as well as the problems with the specification that no warrant is required by law and the recitation of compliance with statutory requirements, etc.
And I really do think if you go through the transcript that a statutory safe harbor like 2511 is exactly what Spectre was asking Comey about and that’s why he was saying that the order he was signing off on was not in the nature of a statutorily required certification – it was just something that some wildasshair guy came up with. I’m sure I partly think that bc that is exactly what they did with SWIFT and the banks, bc of all the pressure, went along with it for a long time and don’t seem to have had any indemnity agreement. Still, who really knows, one way or the other? No one in Congress seems to be trying to nail it down.
It is quite possible that parts of “The Program” were covered by 2511 certs, and that other parts were not. As you know, the Administration has constantly moved their pea in, out, and around different shells so that we really have no coherent idea of what was going on. From my understanding, the plaintiffs in San Francisco have certainly not ruled out at least some coverage by 2511 certs.
Now, that having been said, I don’t believe that EW was making the broad point you assume, at least I didn’t see it that way. The point I saw (maybe thats because it was all I was personally contemplating, but what the hell) was that certain legality could have been supplied for certain acts pursuant to a valid on it’s face 2511 cert., but even that could not have covered the period where AGsquared was the undersigned; assuming that is what happened.
Heh heh; see, I didn’t think we were in particular disagreement….
Maybe, but I think, in fact I am damn near certain, that they will be able to document and argue that they relied on the assurances of a legal basis from the White House as well as a dire national security need (it may be WH pixie dust, but even I think the telcos will have a solid case for reliance). I think the gig was up when appellate court and even the Supremes started laughing at the Administration’s arguments.
Here’s something kind of interesting if you want to take the time:
http://www.pbs.org/wgbh/pages/…..nt/themes/
From a frontline episode, some interviews on four themes about the spying.
Yoo and Ashcroft, btw, are just nuts. OK – you may not need to read anything to get to that point, but still.
Thanks for that link Mary! There is some excellent material there to peruse.
And wrt to the very topic of this EW post, this part is especially germane, in fact, right on EW’s point:
Interview with Suzanne Spaulding (worked for Sen. Arlen Specter (R-Pa.) and Rep. Jane Harman (D-Calif.) as a counsel for the Senate and House Intelligence Committees. She also served as assistant general counsel at the CIA (1989-1995)…):
You’re welcome
Frontline does some very good stuff.
Tomorrow they have a Hadith program, focusing on rules of engagement issues. I never knew that the Haditha soldiers came from the Fallujah battle background – clear the houses, no matter who is in them, bc the civilians were supposedly all evacuated (you know, like how NOLA was evacuated) That does give some additional perspective when you look at what they did.
Mikey Hayden and his love of word parsing (rom Mary’s linkset):
By this Mikey means that yes, the NSA does indeed do “drift net” of communications such as email, but not of telephonic “conversations”.
I’m betting he’s lying about that too!
More goodies from Mary’s Frontline linkset:
It seems that Mikey would prefer to do his lying in closed session. An open session is just too, too painful.