FISA: FBI Overrides Constitutional Objections
Democrats just defeated (with 217 votes) an effort by Republicans to consider the Senate FISA bill before the House considers the House bill today.
While we’re watching lots of bloviating on FISA in the House, I thought I’d call attention to something Mary found yesterday.
The FBI twice disregarded a secret court’s constitutional objections and obtained private records for national-security probes, a U.S. inspector reported on Thursday.
The Justice Department’s Inspector General made the disclosure in reviews of the FBI’s powers to obtain information such as phone records or credit-card data in terrorism probes or other security investigations.
[snip]
The report took particular note of two occasions in which a secret court that oversees electronic surveillance rejected FBI requests to obtain records.
The court was concerned that doing so could interfere with rights protected by the First Amendment of the Constitution which guarantees freedom of speech, religion and association and the right to petition the government.
After the rejections, the FBI used separate authority to get the information without the court’s approval, relying on so-called National Security Letters — even though that authority also had First Amendment guidelines.
Unfortunately, this is a detail I’ve only seen highlighted in Reuters’ coverage of the IG report on PATRIOT Act provisions. It’s an example that really proves the necessity of the additional protections included in the House bill–without FISC reviewing what DOJ is doing, we’re going to see DOJ override Constitutional concerns more and more often.
Update: nolo has the passage from the OIG report on this here.
Conyers introducing the bill: [PAA] transferred power of independent review from courts to AG.
The Administration tells us they have nothing to hide. If that’s true, they should have no problem with the enactment of this Blue Ribbon Commission. We learned yesterday that FBI continuing to misuse PATRIOT Act provisions. We learned four days ago NSA using massive net.
Lamar Smith starts off by lying through his teeth, again claiming that wiretapping on the kidnappers in Iraq was held up because of FISA–rather than because Paul Clement had left work early.
Feeney makes up stuff about the bill.
Jim Marshall engages in colloquy with Conyers and Reyes clarifying how the FISA suits would go forward.
Nadler we have heard false and misleading statements from our colleagues. By solving the State Secrets problem, if they need it and if they obeyed the law.
Pence war war war unilateral disarmed fail fail war war.
Boswell (who was one of the Blue Dogs who wrote in support of the Senate bill but has flipped to suppor the Dems). So yes, I signed a letter. It was not a Blue Dog position. An acceptable solution has been found that makes FISA, supports FISA, and gives protection to those who assist within the law. Those who feel their Civil Rights have been violated and those who cooperated, a judge will decide. This means that Constitution is protected. I urge everyone who signed the letter with me to support this bill.
Conyers the reason we’re not taking up the Senate provision is that we’ve got a better idea. We’re coequal.
Bobby Scott anything the govt wants will be legal. The warrant procedure is a modest protection of civil liberties. This bill just provides oversight.
Gomert We’re an even more important branch bc we’re more accountable. The difference between this and the Senate bill, Senate Republicans got input. We can only point out problems. I’ve read the bill, we’re still not there. We haven’t heard input.
Anna Eshoo Two highest responsibilities: to preserve nation, but protect civil liberties.
Conyers wanted to let Gomert know that the reason we didn’t get the bipartisanship is because you boycotted our meetings. Now you’re complaining.
Blackburn trial lawyers trial lawyers trial lawyers liberal elite. $72 million thank you to trial lawyers. Earmark.
Speaker Pelosi hammering on the Administration’s refusal to accept exclusivity. Chairman Rockefeller agrees that many of the provisions improve his bill. The President knows that this provides the Administration the tools it needs. [Applause as she finishes]
[Pelosi ought to spend the next 6 months saying, "The President knows it" over and over]
Lamar Smith (sounds like he’s getting worried about losing big here, reading from McConnell Mukasey letter again–which seems to have lost its power).
Blunt we were told.
So does this mean immunity is dead, or can they still resurrect the Senate bill?
Read this Kagro post. It’ll go back to the Senate and they’ll put immunity back in.
The Dems need to start messaging the fact that this bill solves the problem SSCI claimed it was responding to: that telecoms couldn’t defend themselves.
We can help with getting out LTE’s in our local papers…
Thanks for this update!
Smith – 9/11, blah, whine!
Reyes: he should bring up scare that now it’s surveillance and next it’s the Second Ammendment as he did earlier.
OT/ breaking/NYT:
sorry to interrupt, but one of EW’s dots just got in more serious need of connection.
Mississippi plaintiffs attorney Richard ”Dickie” Scruggs has pleaded guilty to a charge of conspiracy in a judicial bribery case.
Wonder if he’s trying to save Zach? Looks like folo crashed (NMC was liveblogging from the status hearing today).
Zach being the nephew/son, some young guy who only delivered an envelope? A last name is all that’s needed for me to inform myself.
Zach is the son. The evidence against him is very weak and he can probably argue compellingly that he was entrapped, at best.
BSRH–
You Tube of KO’s 8 Minute Commentary you requested on Wed. March 12:
KO Exposes Clinton You Tube March 12 Commentary
Here’s an article on the FBI behavior by Dan Eggen of the Washington Post.
This administration has nothing to hide?
Seriously?
Nothing to hide until they hear the word subpoena anyway…
Rinse. Repeat.
OT – but some good news from north of the border today that may send some karma down south:
From the Canadian Press:
“An overwhelming number of Conservatives supported a Liberal motion on the death penalty this week that opposition MPs say directly contradicts the government’s refusal to seek clemency for a Canadian on death row in the United States.
The motion, from Liberal MP Irwin Cotler, called on the House of Commons to declare that the government “should stand consistently against the death penalty, as a matter of principle, both in Canada and around the world.”
The motion drew support from 96 Conservative MPs, including senior cabinet ministers, to pass easily by a vote of 255-17 — and go unheralded in an otherwise hectic day on Parliament Hill.”
Perhaps it goes without saying, but conspicuously absent from the vote was Prime Minister Harper.
I have to wonder if FISC knew, before the IG report (and why weren’t we getting those IG reports all the time the Repubs controlled Congress ;)?) about the deliberate override of their order? Mueller’s clean teams are looking less and less American and more and more Bannana Republic. And remember who was either Mueller’s COS or FBI counsel during much of the fiascos there – that would be Wainstein, who is doing the sales pitch on telecom immunity now.
Ugh.
OT – from the last thread klynn had up a link I had clicked through on too from TPM. It’s Charlie Savage story on Bush doing a messy fillet and gutting of the Intel oversight board. (btw – it is nagging at me that a report from that board to Gonzales was produced to show Gonzales was lying to Congress re: something he said he had never been notified about, but Savage doesn’t mention that and I may just be misremembering it – no time to google around right now)
He does also mention so other things, including from the WSJ article (in particular that the clean crew at FBI was doing domestic collection FOR the NSA) and provide a pretty eye-popping list of things, but in particular he touches on one of EW’s and Sheldon Whitehouse’s favorites:
As best I can tell from the reports on CIA, FBI and military activities under Bush’s authorizations, he also has pretty much given carte blanche to ignoring the prohibitions in Exec orders on human experimentation. The ghoulish bits from Rorsharch and Awe are only bits – the overall accumulation indicates that it is very likely that Padilla and al-Marri were turned over by DOJ for such experimentation (complete with use of drugs and years of sensory deprivation) right here on American soil, and certainly before Comey’s presser, the Padilla investigation he supposedly put together would have provided pretty detailed insight into the human experimentation being conducted on Zubaydah, Padilla etc.
The Bush lawyers really have made DOJ into a colony of the unclean.
I’m glad Savage is finally noticing Pixie Dust. But he’s treating it too narrowly–it also encompasses non-spies, as Dick Cheney can attest.
SO yeah, assassination and many other things are probably now fair game.
EW, although CP is a very uneven site, one writer there lays out a strong case that the death of FARC’s second-in-command was a US air assassination:
Thanks ew. As I think has already been mentioned, we may be getting at least a little help from some on the right. I guess the WSJ front page editor sneaked this past Rupert back on March 10: NSA’s Domestic Spying Grows
As Agency Sweeps Up Data
They only recently hired GOrman. They knew what they were getting–by far one of the best security journalists in this country.
The Gorman article is useful in describing how far surveillance and data programs go, but the important legal aspects are examined in Kurt Opsahl’s DeepLinks article, Law-Checking WSJ Article on Domestic Spying.
OT, back two/three threads on NRCC, a timeline found:
Shorter timeline. no lone rogue but intentional destruction of oversight.
http://www.dailykos.com/story/…..509/471397
I feel sorry for persons who are totally dependent on public libraries for Internet access (I’ve been there) and/or largely dependent on public libraries for information resources. In all public library systems resource-related user activities are exposed (for security and data-collection purposes) to some extent; in some systems all resource-related user activities are exposed with the possible exception of physically accessing and reading shelved books and other library materials. The privacy situation in the public library was bad enough before the USA Patriot Act. Now there are National Security Letters, which served librarians are not free to talk about, and possibly complete electronic surveillance in real time.
A rather recently-emerging trend is for libraries — at least in the larger metropolitan areas — to challenge the gag-provisions of Patriot Act Section 215, and the similar provision in the NSLs cases.
At a minimum, the FBI must show that an after-the-fact notice of surveillance would compromise ongoing investigations, in order to NOT run afoul of our 220-years of fourth amendment jurisprudence. . .
At least that has occaionally been litigated of late.
One small step at a time. . . we will work our way back to sanity.
p e a c e
The egregious bloviating by people like Dan Lungren–R California 3rd has very real correlates that have decimated every scintilla of your privacy:
NSA’s Domestic Spying Grows As Agency Sweeps Up Data
F.B.I. Made ‘Blanket’ Demands for Phone Records
Report on F.B.I. Use of Personal Data
Hey! — that’s me! Yipee:
More seriously, thanks, EW.
And, keep on keepin’ on — until these warrantless, no judicial review, based on a simple, unsworn FBI agent asserts standard of “relevance” — not “articuable suspicion“, and certainly not full-on “probable cause” — until these are dead and buried, all of us, bloggers clearly-included, here, are at rather grave risk for simply expressing views, or allowing comments, by those critical of our government.
And that, according to some of the agents at the FBI, makes a Section 215 “associations” case. Now, if that grouchy old FISA judge won’t agree with the agent, s/he will just issue their own National Security Letter for exactly the same stuff — Presto! No problemo – end, Constitutional guarantees.
p e a c e