They Really DO Want Monica to Do FISA Applications!
I joked earlier that the Administration had requested FISA be expanded so that Monica Goodling could make FISA certifications.
I’ll come back to his summary of the extra goodies the Administrationis requesting (the short version: they want to make it impossible forany case relating to wiretapping to go through normal courts, and theywant to expand the universe of people who can make FISA certificationsto include Monica Goodling non-Senate approved people the President designates).
That was based on this language from Wainstein’s testimony.
Section 404 also would increase the number of individuals who can make FISA certifications. Currently, FISA requires that such certifications be made only by senior Executive Branch national security officials who have been confirmed by the Senate. The new provision would allow certifications to be made by individuals specifically designated by the President and would remove the restriction that such individuals be Senate-confirmed. As this committee is aware, many intelligence agencies have an exceedingly small number of Senate confirmed officials (sometimes only one, or even none), and the Administration’s proposal would allow intelligence agencies to more expeditiously obtain certifications.
I thought I was being pretty funny. Until I read this, from Spencer Ackerman.
And here’s another question. If FISA requires a confirmed senior officer to certify FISA applications, does that mean the only person who can do so right now is Paul Clement?
And I gather, Wainstein himself. When did he get authority to do so, between July 19 and September 20?
â€does that mean the only person who can do so right now is Paul Clement?â€
…is he kin to Clement von Metternich?
How cosmic… the protector Saint of conservative causes is reincarnated.
Guess that’ll teach you to joke about good Christian folk.
… you just have to believe …
I dug this up from somewhere. Apparently McNulty took a job that would get him the hell out of Dodge as soon as Morford was appointed.
Hmmm, the figurative Dodge, that is.
You’re always funny, ew. It’s just the pathetic and criminal situations that are sad and ugly.
Like say, â€Argentine meltdown, here we come.†You, funny. Situation, sad and ugly.
Wainstein confirmed either 9/21/06 or 9/22/06; the latter I think.
OK, I guess I should actually ask the question I was thinking when I posted Wainstein was confirmed 9/06. How does Kenneth Wainstein, the first Assistant Attorney General for National Security at the Department of Justice, a Senate confirmed †senior Executive Branch national security officialâ€, NOT have the requisite ability during the time between his confirmation in September 2006 and just recently whenever he says he got authority?. What am I missing here?
I’m watching a replay of the hearing today. One thing I noticed is that most of those asking questions are Democrats. Where are the Repubs? One that was there said something like the just passed bill was negotiated 100% by Democrats and passed into law. Hmmm, maybe look around the room to find out why.
McConnel seems to have a knack for creating a crisis which requires a legislative fix. One point is that we can’t tap foreigner to foreigner if the tap is done in the US. Wasn’t this just handled? He never explained what the problem was.
Another concern is this database. Here is what it sounds like to me: large vacuum cleaner sucks up everything. Therefore no human knows if you are in there. At some future date, they might query the database and your name pops up. This is super scary. Because, the next thing they want it to run their filters first to see what works, if something works, then the could be reviewed by the FISC. In other words, they get to run their programs over stuff/metadata and it doesn’t count, ’cause nobody even knows if you are in there or not. This is very very dangerous. Oh well, it is just a database…and at some point in time the data will just drop out automatically! (according to Mc).
Sorry guys – OT again, but man are people ever pissed about the senate voting to condemn the Move On ad. Raw Story had more comments on that article than I have ever seen, and people are NOT amused.
They’re posting list of the Democratic Senators that voted to condemn free speech, and I’m of the mind that this thing has legs – the core is livid.
Might need a post on this one.
yo, Dismayed;
where’s that list ???
I’ve already called my Senators to raise hell about that one
a list of the facists and fools in the Senate would come in handy
there WILL be a a day of recconning soon, and now those assholes are on the list
O yeah, believe it, I’ve got a list …
Ew, I watched the hearings and had some of the same impressions.
The one point that I keep coming back to is â€what did the telco do that the need retro immunity from†and it appears what you are saying is that Wainstein does not have that athority, thus the need for retro immunity instead of the telco’s?
bmaz – left a thank you for you below (whenever it is convenient…)
None of this is passing any sort of smell test. This part makes no sense whatsoever:
You supposedly had a truly exigent circumstances situation – US soldiers kidnapped, trying to track the kidnappers. You needed a certification from one of several persons. Ok – Wainstein wasn’t authorized, yet. (BTW – isn’t Mueller authorized?) McNulty was gone and no one was in his slot yet – ok on that.
But the only excuses for Gonzales and Clement were that one was â€out of town†and one had â€left the building†You have to be kidding me? These guys are not reachable by cell phone in an emergency situation? Bull. That is absolute and total cock and bull. I don’t know who is either fibbing or not giving all the story, but that’s just not plausible.
And if they are saying that they needed a signature, again, there are all kinds of ways to deal with that in an emergency situation. Plus we have Lamberth now in print discussing how in emergency emergency situations he authorized warrants by phone, no paperwork. He did it on 9/11 from is car. So IF they are talking about an actual court interaction for a warrant (and why would that be the case anyway if it was all foreign to foreign, insurgents in Iraq, spoken communications?) and their need for an ok, then we already know that calls can work, and we all know about pdfs and I have to think that the FISA court is as able to handle electronic signatures, etc. as a Dist ct for an emergency filing.
But I’m not even, from the quoted passages, that clear about whether they are even talking about approaching the court. It sounds as if they are saying that their internal policy was not to start a 72 hour warrantless tap except upon certification of emergency by one of a few special persons (again, why wasn’t this under the foreign to foreign exception anyway?).
Then, those persons weren’t available, so things just languished for hours.
Whatever they are saying it makes no sense. How dysfunctional does DOJ have to be for both the AG and the Sol Gen to be wholly unavailable just bc they are not in the building?
Maybe I am missing something here, but cboldt and i have mused many times that none of this is needed for foreign-foreign anyway.
bmaz,
The exception is if the foreign-foreign communication is captured with equipment in the U.S. and there is a possibility that the interception will gather communications from U.S. persons.
linky to the roll-call
The abbreviated list on Cornyn’s motion:
Ds voting “yes†(to condemn moveon)
Baucus (D-MT), Bayh (D-IN), Cardin (D-MD), Carper (D-DE), Casey (D-PA), Conrad (D-ND), Dorgan (D-ND), Feinstein (D-CA), Johnson (D-SD), Klobuchar (D-MN), Kohl (D-WI), Landrieu (D-LA), Leahy (D-VT), Lincoln (D-AR), McCaskill (D-MO), Mikulski (D-MD), Nelson (D-FL), Nelson (D-NE), Pryor (D-AR), Salazar (D-CO), Tester (D-MT), Webb (D-VA)
Ds not voting:
Biden (D-DE), Cantwell (D-WA), Obama (D-IL)
No Rs voted against, no Rs did not vote
So here is the old text language of the 72 hour warrantless (since this is what they seem to be talking about)
So the AG or his authorized designee (and that would have included Clement) would have had to make that extemely difficult leap of â€informing†the designated judge? Doesn’t pass muster that both Gonzales and Clement couldn’t do that bc they weren’t physically in the building, especially when Lamberth has mentioned phone authorizations.
And while it is true that for the foreign to foreign exception to warrant, there has to be â€no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party†I’m a bit at a loss, if they were listening in on Iraqi insurgents talking to each other, how that would come into play (non-techie here)
Plus – I just don’t buy that in that kind of a true exigent circumstance, someone wouldn’t be going ahead and going forward for 12 hours while American soldiers are being kidnapped, just bc Clement is getting a very lengthy massage and AGAG is culturifying himslef out of the country.
I’m thinking that, in addition to current calls back and forth, they, either or both a) now had info that made them want to go back through stored communications looking for info and access to that stored info is something for which the court had ruled a warrant is required, or b) were wanting to get to things like current exhanges of emails and that is something that the courts have said needs a warrant.
So perhaps (??) they were listening in on any phone exchanges (foreign to foreign, no substantial likelihood of US persons communications being captured) and someone thought it was ok to wait for Clement or AGAG to become available in the ordinary course to sign off on paperwork for them to go through what they thought would be less relevant, â€older†stored info. But once they did get the authorization and started to look, there was something there that made someone go – OH CRAP! If we had known this yesterday …
Just doesn’t make sense that no one got an order that they were all desperately seeking just because Clement and AGAG weren’t there. Makes more sense that they weren’t seeking that desparately but in hindsight wish they had been. IMO, fwiw.
Mary – Yeah, I don’t know what the deal here is either; but something doesn’t even come close to adding up here and reeks.
William Ockham – Yep, but I find it hard to believe that Iraqi insurgents talking to each other in Iraq could only be collected in the US. Are we to believe that the military/government isn’t/can’t collect this in Iraq? They were not going to bring these insurgents to the US for trial, nor are the insurgents allowed to sue; I just don’t get the argument they are making. To be honest, I can’t see how it matters where they are collecting the Iraqi insurgent to Iraqi insurgent data. They could be gathering it up in Times Square; who cares and who has a remedy against it that can be enforced? Again, I honestly admit I may be full of it, but I just don’t get this argument.
bmaz,
The point I’m trying to make is that they keep implying that they are â€targeting†individuals when what they are targeting is the content of communication.
Let’s give them the benefit of the doubt and say they’re only monitoring international communication (foreign-to-foreign and foreign-to-domestic) because that’s what they’ve admitted to. So, the Iraqis kidnap some U.S. Soldiers. The NSA puts the key phrases they want to monitor into their computers. The key phrases would undoubtedly include the names of the kidnapped soldiers. The system will automatically start tapping any communications that include the key phrases. That means that any overseas reporter covering the story gets tapped. Anybody who happens to have the same name as one of the kidnapped soldiers and communicates with anyone overseas gets tapped. Think it through. The FISC will certainly require a warrant because they know that the system will snarf up communications by U.S. persons.
WO – Ok, now I see. Thanks. The scenario you describe makes perfect sense. And the reason I wasn’t picking up on it is that the Administration phrases it in terms of knowing they had Iraqi insurgent to Iraqi insurgent and wanted to snoop. But you are saying they found their iraqi insurgents through a filtering operation that could have snared US citizens communications etc. I think you and the scenario you describe are probably on the right track here and that would certainly explain the concerns about needing signatures/warrants/ cover etc. For the reasons stated above, if the situation was as I was evaluating, they would not need any of that. The real problem here is that they continue to lie about what they are doing. They want people to believe the situation is as I analyzed when, in fact, your situation is much closer. This is why they need to be pounded for lying about their phrasing and explanations.
WO – and they may have to store communications to go back through them to see if they are relevant – – I can see that if they didn’t really â€have†the insurgents or know who and were just going to go trolling through all kinds of communications in hopes that they *might* get some kind of a hit. That doesn’t seem to be what they were claiming though – they seemed to claim they *had* the insurgents, knew how to get their calls intercepted, but stupit stupit FISA law, no one could get it accomplished – stupit law. The source seems to think they had good targets too, from the way he/she phrases it:
â€To get an emergency warrant, you just have to believe the facts support the application that someone is an agent of a foreign power,†the source says. â€That takes approximately five seconds to establish if you’re going after an Iraqi insurgentâ€
That doesn’t sound, to me, like something that would be the case if you were saying – hey, let me run all kinds of vague stuff and hit words through a program and target all of Iraq or all of xyz area in Iraq and see if we pick up anything (or a few thousands of things that we’ll have to sort through). But still, if that’s the case, then I can see why they might need a warrant and might need to go through the emergency procedures.
But it still doesn’t make sense that they would say: OMG! Hair On Fire! EMERGENCY!! Uh, let’s wait to talk to AGAG and Clement until one of ’em shows up for work tomorrow.
That just doesn’t jive.
Of course, they do make things sound
Go away mid comment for real work and come back to bmaz saying it better:
Administration phrases it in terms of knowing they had Iraqi insurgent to Iraqi insurgent and wanted to snoop.
The Admin and the anon source that questions them both seem to phrase it that way as I read them. Not that either can necessarily be believed. But I think you then also add human nature in and the options for getting required signatures or approvals to a court (and there are a lot) and it just doesn’t make sense to me that they would delay for 12 hours while living soldiers are in peril, bc no one wants to call Clement or AGAG.
So to me that leaves a possible scenario of –
They have insurgent to insurgent calls they are intercepting, as a result they feel somewhat on top of what is going on.
They decide it would be good to also start checking through things like stored communications records or emails and realize – ah, we need a warrant for that.
Some guy looks around – it’s late, Clement has left, AGAG is out of country, they have the calls being picked up, so they decide to let it ride until Clement comes back in.
They get the warrant, start going through things and either find something that would have been very helpful to have earlier or someone with more seniority than the guy who made the decision to let it ride says â€WHY DIDN’T WE GET THIS STARTED YESTERDAY†or something like that.
Guy goes, gulp, uh â€well, you know we have to get warrants for this stuff now and there wasn’t anyone around who could sign offâ€
If you listened to McConnell and all his seeming lack of familiarity with how things work (not really even knowing if there was any kind of declassification procedure?!?) he either is that out of it or he has a whole lot of stuff to cover up and had the Safavian options – do I answer to look really criminal or really incompetent? So then the old codgery explanations, keep it coloring book for the President – became: uh, we didn’t start on (emails, whatever) until the next day bc -stupit FISA- we needed a warrant and -stupit FISA- we could go ahead without a warrant in an emergency, but -stupit FISA- only certain people can say it’s an emergency and -stupit FISA- none of them were *available.*
I can see the whole thing cropping up in a cya setting for someone who made the wrong judgement in hindsight (and wouldn’t that likely have been Wainstein – even though he couldn’t certify the emergency weren’t they likely going to him with the situation?)
What I have a hard time believing – despite time and time again being given evidence of the utmost incompetence on all fronts – is that there was an option to get real time spoken communications between insurgents intercepted as they held US soldiers and no one thought of trying to patch through a conf call with AGAG or Clement and Kollar-Kotelly (or whoever) for the emergency approval.
Please God in heaven tell me we have people who, in an emergency, would think: hey, Clement isn’t here and we need him to inform the judge by statute, MAYBE we should call him?
Mary – Yes, or even â€just do itâ€, save the soldiers ora at least make an effort, and be man enough to let the chips fall where they may because you did the right thing. If they were that clearly doing the right thing, it is my recollection that Bush has something called the pardon power or something; although he may not have any experience, nor even know how to use it in a deserving case….
There’s a bigger problem with the â€emergency†provision in old FISA, compared with going the TSP/no-warrant-at-all route.
See the parts of 50 USC 1806 where a retroactive warrant is denied. There’s no way the government would EVER ask for a retroactive warrant for â€emergency no warrant†surveillance, faced with this risk.
The speculation that the government is fishing for evidence without an identifiable target is, I think, accurate. The object is to acquire contents of communications, and the fact that the US end isn’t targeted is being used/spun to read as though the communications of US persons is rarely acquired.
It’s incorrect to equate â€US person not the target†with â€we didn’t listen to US person,†but that equivalence is invited.
Cboldt – But on a proper showing (hey, this is a hypothetical; I don’t really think there is anything â€proper†here) why wouldn’t the FISA court delay any notifications until the next of never? Let me rephrase it. If the situation is really as they describe, the thought that they just couldn’t do anything is ridiculous. Whatever happened in this specific situation, it is not what they are telling us; they are ginning it up and misrepresenting it to serve their craven desires.
I am going to assume there is a reason, but subsequent to his confirmation, why was Wainstein able to sign off? He appears to meet the requirements after he was confirmed….
Disambiguation:
This was not an emergency.
â€American Soldiers were captured in Iraq by insurgents. We found ourselves in a position where we had to get a Warrant to target the communications of the insurgents.â€
He does not say when the Insurgents captured the Soldiers or what the outcome was. There have been no recent reports of captures, at least since McNulty left.
What if this is a warrant need to broadly target communications of an insurgent who was believed to be involved in a long-over soldier kidnapping?
The administration has been looking for reasons to scrap FISA, so they manipulate the details of this selectively declassified incident to make the scrapping case.
You would think if it was an acute and active issue with Soldiers’ lives at stake they would call Gonzo or Clement, or just say screw it and do it like they have been doing for the past 6 years.
This is just more BS. They are making up things to get rid of FISA for good.