House to Go Into Secret Session

At the request of the Republican leadership (who want to say something to the entire House that can’t be said publicly), the House is going to go into a secret session to debate FISA.

Here’s what John Conyers had to say about the secret session:

The more my colleagues know, the less they believe this Administration’s rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration’s actions in the area of warrantless surveillance, the more likely they are to reject the Administration’s scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration’s documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

Whether this is a worthwhile exercise or mere grandstanding depends on whether Republicans have groundbreaking new information that would affect the legislative process. There must be a very high bar to urge the House into a secret session for the first time in 25 years. I eagerly await their presentation to see if it clears this threshold. As someone who has seen and heard an enormous amount of information already, I have my doubts.

I’m frankly optimistic about this development. I think this gives the Democratic members of HJC and HPSCI an opportunity to explain to their colleagues what they saw in the justifications for the wiretap program and what they heard from the telecom executives who gave secret briefings in the last several weeks. For the immediate debate, the issue is winning over the Blue Dogs who–at least currently–appear to be channeling their Democratic past. And it seems like this argument is fairly easy to make.

At the very least, we know the telecoms continued to wiretap in the days after March 10, 2004, when White House Counsel Alberto Gonzales authorized the program rather than Acting AG Jim Comey. We know the telecoms didn’t follow the clear guidelines about when they can accept the Administration’s assurances that a program is legal.

That seems like an important part of the debate.

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124 replies
  1. WilliamOckham says:

    I find this to be an interesting development. I don’t understand what they hope to gain by this.

  2. CTuttle says:

    I remain dubious about the secret session, EW, I’d like to be optimistic, but, secrecy is what got us in this mess in the first place…:(

    • emptywheel says:

      True. But assuming that the Dems will be able to share the contents of the authorizations and the telecom briefings, it means that Congress, at least, will not be working in the dark from the actual realities of the case.

      • selise says:

        please tell me that holt is in the house today and that the dems will give him plenty of time to explain the technical details?

  3. bmaz says:

    I agree that it probably, probably, won’t be a bad thing. But the secrecy is freaking unseemly at this point; Conyers is right, what in the world new do they have to offer?

  4. WilliamOckham says:

    They rejected the notion of a secret session when it might have made sense. I have a hard time understanding this as anything other than a chance to trot out some completely bogus scare tactic that they know won’t stand the light of day. The only question is whether the Dems will fall for it. They’ve already used the “The Capitol is under attack” crapola. I’m betting it will be “PAA stopped a dirty bomb attack on NYC”.

    • emptywheel says:

      Yup, I expect there will be a scare tactic. But if we can then hold the line here, the scare tactics will cease working. That is, this is their last shot at scaring Dems into submission.

      • FrankProbst says:

        Yup, I expect there will be a scare tactic. But if we can then hold the line here, the scare tactics will cease working. That is, this is their last shot at scaring Dems into submission.

        I think it’s just plain stalling. The right time for a scare tactic was during President Pissypants’ presser this morning. They’ve obviously got nothing. They weren’t really prepared for the Dems to do anything other than roll over and play dead.

    • portorcliff says:

      This is exactly what I expect. This is crying wolf.

      Dems just have to stay firm, hold on, and vote for the Constitution and the Rule of Law.

    • ImaPT says:

      I agree. They played the terrorist attack card last August and scared everyone into voting for the PAA. My guess is that this is a last-ditch attempt to scare the wavering Blue Dog Dems. Hopefully, they are wise to it this time…

  5. CTuttle says:

    That could very well be true, EW! The truth will be in the pudding tomorrow… I do like the fact that Mcjoan has reported some defections of the Blue Dogs, already…!

  6. brownandserve says:

    I sense this secret session is intended to scare Dems into backing off. But if the Dems can can effectively present some of the unadulterated bullsh*t that has been contended by this administration for what it is, a few Repubs may waver.

  7. Mary says:

    What’s interesting to me is that it is a secret, or set of secrets, known to all the Republican House leadership – – just not to the Dems? So I guess they mean the session needs to be held in secret so that the Dems can’t talk about what the Repubs were saying later?

    I wonder if it will be threats that if the telecom door gets thrown open, then Bill Clinton’s Latin American warrantless program will get hammered too?

  8. freepatriot says:

    if the “Secret Session doesn’t work, what are the repuglitards gonna try next ???

    A “Double Secret Session”

    maybe we could pass a “double secret immunity” bill

    you know, immunity that only works as long as every body keeps the secret

    or some shit like that …

    • MadDog says:

      When I was in Eire, I came across a colleague with the name Siobhan and was “tutored” in its proper pronunciation, which is: Shiv-awn.

  9. nolo says:

    ‘Tis interesting.

    I suspect more “scare tactics”
    are in play here, than real new
    credible threat information.

    Unless of course, they intend to
    reveal ALL the below-$10,000 structured
    payments to the various Emperor’s clubs
    (and competitors), made by ALL congress-critters,
    IMMEDIATELY, if immunity doesn’t appear.

    And, they’ll admit that they got the info,
    in the first instance, using non-FISA approved
    surveillance wide-nets. . .

    Okay — now I am clearly NOT joking — this
    may well be about spying on US citizens, congress
    plainly included — yeah, I know, I’m wearin’
    my “Enemy of the State“/Gene Hackman/Will Smith
    full suit o’ tin-foil, now.

    p e a c e

  10. JTMinIA says:

    Oops. Depends on whether you’re in the east or down south. Might have been Shih-vawn, which is close to Shiv-awn, isn’t it?

    • MadDog says:

      Twas in the southeast. *g*

      And there were folks there who would converse with me for 5-10 minutes, in English mind you, and I never did understand a word they were saying.

      • JTMinIA says:

        Don’t feel bad. I got them all back for you!

        When I ordered at my favorite Chinese restaurant, saying “care own pee ha lung go,” the waiter said that it sounded like I was laughing about urinating in Greek river and then admitting I smoke too much. Then he said “I’ll just bring your usual chicken and broccoli.”

        When I said hello in a restaurant in Nova Scotia, they flat out asked me not to speak in gallic again.

        When I said hello to Mairead Ni Mhaoniagh in gealic, she smiled indulgently, which was just about the same thing.

        And don’t even get me started on what I do to French.

        • emptywheel says:

          If it’s any consolation, mr. emptywheel failed Gaelic on his leaving Cert. He had to get an exception to go be an engineer. And I’ve got an (American) cousin who speaks it better than he does.

        • bobschacht says:

          When I ordered at my favorite Chinese restaurant, saying “care own pee ha lung go,” the waiter said that it sounded like I was laughing about urinating in Greek river and then admitting I smoke too much. Then he said “I’ll just bring your usual chicken and broccoli.”

          When I said hello in a restaurant in Nova Scotia, they flat out asked me not to speak in gallic again.

          When I said hello to Mairead Ni Mhaoniagh in gealic, she smiled indulgently, which was just about the same thing.

          And don’t even get me started on what I do to French.

          Ha! Decades ago, when I was studying in the research wing of the Louvre, I attempted to converse with the curator in French for a day or two before he politely suggested that it might be better if we conversed in his English rather than my French. The most amazing thing about that conversation was how polite he was, and how long he endured my attempts to speak French before making his suggestion!

          Bob in HI

  11. MadDog says:

    Steny Hoyer said “vote tomorrow” on FISA bill after “secret session” this afternoon.

    And also says that Minority Whip (Boehner) has “secret info” to relay to House members in the “secret session”.

    • Helen says:

      Really? And why does Boner have it and not the dems? In what capacity did he receive it? And what is the difference between “secret info” and “classified info”

      • Helen says:

        Doggett trying to find out just that. “Is it classified, or are we doing the people’s business in secret?” Hoyer not willing to say it’s “classified” Doggett: If we discover that it is not classified can we talk about it in public?”

      • nonplussed says:

        Secret information is Classified, it is simply Classified as “Secret”. The Classifications are; For Official Use Only (Their new one), Confidential, Secret, Top Secret, and whatever super duper clearances come next. Does that make sense?

      • MadDog says:

        Oh, for eff’s sake- super top secret information the House Repubs never had before, that somehow just became available to Repubs (only) for the super secret session to scare the pants off the Dems.

        It is worse than that!

        As you say, the Repugs have this “secret info”, and somehow Roy Blunt as Minority Whip has this “secret info”.

        The Minority Whip is not a member of the gang of eight, so how is it that he has this info.

        The Majority Leader, Steny Hoyer, who is a member of the gang of eight, says that he doesn’t know what this “secret info” is.

        Junya and Deadeye are spreading the pixie dust around the House with abandon.

        • MadDog says:

          And one more correction on my part, Steny Hoyer as Majority Leader is not a member of the gang of eight. Speaker Pelosi is one of two representing the Majority party in the House along with Silvestre Reyes as the other Majority representative as head of the Intelligence Committee.

  12. Mary says:

    Remember Dennis – secret session or not, you’ve got absolute immunity for what you say on the floor when the doors open back up.

    I wish the vote were not tomorrow though. Next week would be better – not the end of a news cycle (feeding into a lot of spring break start up weekends) and more time for cleaning and clearing.

  13. cboldt says:

    The Reps who have been “read into” the surveillance program(s) are forbidden from disclosing classified information relating to the surveillance program(s) in the secret session.

    They may assert conclusions.

    I dunno about others, but I NEVER accept a conclusion without supporting evidence. This secret session is just a stunt.

  14. JohnLopresti says:

    There was an article in The Hill two weeks ago about the closed session idea.
    “…Liberal Dems seek secret FISA session…By Mike Soraghan
    Posted: 02/26/08 08:09 PM [ET]… Liberal House Democrats are pushing for a closed session to discuss the legal underpinnings of President Bush’s intelligence surveillance program…”

  15. CTuttle says:

    TP has a new post up…

    In reality, the session is not a “candid debate.” Next week, the House is scheduled to go into recess. The Hill reports that the conservatives are organizing the session in order to “delay” Democrats’ FISA legislation, raising the possibility that nothing will be passed until after break:

    House Republicans had been seeking the closed session to delay a vote on a new Democratic FISA overhaul, unveiled Tuesday, and discuss its national security implications.

    • cboldt says:

      Lungren just announced (not sure on what authority) that the FISA details can’t be discussed in secret session.

      Classification rules and parameters are unchanged in the venue of a secret session of a chamber of Congress. It’s up to the classification authority to decide how widely to disseminate information.

      If the administration isn’t relieving the parameters for disclosure of surveillance program definition, then that stuff won’t be disclosed. Likewise legal rationales and other information that hasn’t been cleared for disclosure to the entirety of the House.

        • cboldt says:

          Do you think they’ll be given enough time to sweep the chambers in time to go into secret session…?

          Depends on how late they want to stay, but there’s always enough time. If the GOP is stalling, it’s because they see a risk that HR3773 will pass, amended. An alternative (to stalling) is to give cover to DEMs to vote against HR3773 as amended. E.g., to create an event that supports “I learned something that I can’t tell you about, that made me vote against the bill.”

        • CTuttle says:

          “I learned something that I can’t tell you about, that made me vote against the bill.”

          That’s my take on it too, fortunately, I’m enjoying the numerous Dems rising to call the bluff…!

        • MadDog says:

          And we’re seeing the standard Repug illogic tactic of “If we win, we win, and if we lose, we win.”

          Democrats need to figure out how to better convey the fact that losers are losers no matter how the Repugs want it to be otherwise.

        • cboldt says:

          Democrats need to figure out how to better convey the fact that losers are losers no matter how the Repugs want it to be otherwise.

          I’m an advocate of letting the losers feel like winners, just as long as they lose.

        • cboldt says:

          Word is it appears to be a stall to push this out past the recess and to fearmonger the Dems again.

          I can buy that. Not that I think it’s particularly good strategy. But the House passing HR3773 in the proposed form would be an irreversible event. It would create a difference that requires formal resolution with the Senate.

          The pro-immunity side has to believe that the longer they delay resolution, either way, the better chance it resolves in their favor. I don’t think that’s true. I think the longer it delays, the worse they do. The arguments in opposition to retroactive immunity are getting some voice.

  16. Mary says:

    32 – Boehner should be one of the current Gang of 8. And he’s the one with the looseygoosey lips on the FISC rulings back last summer/fall.

    Hoyer may not be willing to say it is classified, bc even though gov may be taking that position, Congress (which is considering revision of the state secrets act) may have different views about whether violations of law by the Executive can become classified with just a stamp. So it’s a bit hem/haw on word choice (kind of like Fitzgerald on whether or not the President could “insta-declassify” by covertly planting classified info for domestic propaganda purposes)

    43 – I basically agree with what cboldt has there about Exec Branch classification, but the thing is, members of Congress have absolute immunity for what is said on the floor, so I think in a closed session (or even open) if they are on the floor, they can chit chat away to their hearts content about classified info. Which is kind of interesting, bc they couldn’t leave a classified briefing and go talk to just one member of Congress in private about the classified info probably.

    Someone needs to pull in Gravel to do the guest commentary on this *g*

    • cboldt says:

      but the thing is, members of Congress have absolute immunity for what is said on the floor, so I think in a closed session (or even open) if they are on the floor, they can chit chat away to their hearts content about classified info.

      Immunity from criminal prosecution, but amenable to sanction by the chamber. I don’t know, if expelled, they become amenable to criminal prosecution.

      On this particular session, my understanding is that the information that will be shared in secret session is the material that the administration has already made available to the entire House, should any member choose to look at it.

        • cboldt says:

          The whole house, or only the HPSCI and HJC?

          The whole House. The information may have been presented / published / put in the mailboxes of just Committee members; and there may be a division where some information was disclosed ONLY to a Committee. But there is a category of “confidential” material, now available to any House member. That’s what is to be shared to the group — ostensibly as a convenience so the members don’t have to “one-by-one” view.

          Don’t take this to the bank … I’m basing it on a vague recollection. But I seriously doubt the administration would share something it feared might leak, with the entire House.

        • PetePierce says:

          Cboldt–

          Can you tell me who or what decides for the whole House to go into Stealth mode? Do you know historically what issue made them do it 25 years ago?

  17. CTuttle says:

    There are 72 house critters in the Progressive Caucus, it appears that they’re questioning the ethicacy of the secret session, heck, this could be a looong nite…:)

    • bobschacht says:

      “There are 72 house critters in the Progressive Caucus, it appears that they’re questioning the ethicacy of the secret session, heck, this could be a looong nite…:)”

      “Ethicacy”??? Heh. Good one. How about
      Ethicacity?
      Ethicaceousness? Or just plain old boring
      Ethics? (Oh, that is just SO 1950’s, Dude! Get a grip!)

      Bob in HI

        • bobschacht says:

          “In response to bobschacht @ 67 . . . How’s you’re plans coming along?”

          She has timeshare on a condo, but nothing was available on Big Island for Memorial Day weekend, so she grabbed a spot on Kauai. I’ll file away the info on Hilo Hawaiian for future reference. Thanks,

          Bob in HI

    • cboldt says:

      BTW, it has to be a UC to go into secret session, right?

      That’s the way it’s styled this go around. Usually, secret sessions are entered into on non-debatable motion.

  18. bmaz says:

    I don’t know, if expelled, they become amenable to criminal prosecution.

    How could they be prosecuted after being expelled? It would still be speech integral to the legislative process and thus protected by the speech and debate clause pursuant to US v. Brewster, 408 U.S. 501 would it not? What am I missing, because I agree with Mary here so far; it is protected?

    • cboldt says:

      How could they be prosecuted after being expelled?

      I don’t know. I’ve never researched it. Even though my inclination is to hold open the possibility in some bizarre scenario, I don’t see any way a disclosure in the context of the FISA debate could possibly result in anything more than sanction by the House.

      • bmaz says:

        The key is the “integral to the legislative process” I think. Some slander, discussion of placement of illegal bets (yep, there was such a case) etc. may not be protected simply because they were made on the floor if they are not a reasonable part of the legislative process. But i think they would be in the clear here.

        Blunt is so full of shit his eyes are brown. Why is Hoyer helping him?

  19. emptywheel says:

    Blunt: Info that has been available to intell committee that members would benefit from talking about–classified at Secret level. Should not be discussed in open session, but does not rise to the kinds of things that should not be discussed even in secret session.

    Blunt is hedging on the importance of his information.

    • MadDog says:

      How does Blunt have access to this “secret info”?

      He is not a member of either the Intelligence or the Judiciary Committees, nor is he a member of the Gang of Eight.

      Oh wait a minute, Deadeye’s instant declassification pixie dust. Must’ve traded a Blunt for a toot.

  20. Mary says:

    55 – No, if expelled they don’t become retroactively liable for what they said on the floor while they were privileged.

    And the immunity isn’t just criminal – it’s all legal actions (including slander) IIRC. And while the House can sanction for failure to comply with its rules, to my knowledge there is no rule (and it might be unconstitutional if it exists) that allows for sanction of a members statements on the floor as to national security or legislative matters on the sole grounds that the information is deemed classified by another branch.

    I have no idea what info they really will get into and I tend to think that tactics vs. information is what this is all about, but IMO IF they wanted to go there, there is nothing to prevent a member of the House in closed session from talking about Executive Branch classified information on the floor. If anyone leaves the floor and chit chats to reporters – then it’s different and again, the info they may be planning on discussing is probably not particularly secret or all that earth shattering – it is probably all about tactics.

  21. emptywheel says:

    This is fucking bullshit. He’s not on HPSCI. Implies he got it as a leadership level.

    “This is info that’s been available to intelligence committee.”

    “You yourself had the information but you yourself did not share it with the chair.”

  22. Mary says:

    Man, the Kabuki sounds great. Boehner is just stupid enough and egomaniacal enough that he can be given a drilled in talking point and sell it to the point of making himself teary (tears that tend to match his tan in sincerity)

    I don’t know much about Blount but my impression was that he is smarter but less able to summon his inner actor.

    • nonplussed says:

      Blount is a hard core true believer Republican of the worst kind. His boy, Matt is the gov of Mo. They are all jerks.

  23. PetePierce says:

    BTW–as I watch the kabuki debate on the secrecy of the secret session and its alluring secrets or is it foreplay to the secret sessions secrets now on C-Span, I’m late to picking up on this–could someone explain to me who decides that the House can go into a secret session since this would be the first time in 25 years. What was the issue 25 years ago for anybody then?

    I’m against the secret session. I can’t have Walter Mitty fantasies about what I’d do if I were there, if they have a secret session, and secret conference committees have always made me resentful, and it prevents me from screaming my usual litany of obscenities at the TV that the House or Senate facilitates if I watch C-Span.

    I’ve never heard the term “in the bosom of the intelligence committee before” on family TV yet.

    And now the speaker (Dan Lungren from Caleeyforney) is saying “it’s nothing we have in our bosom that no one else knows we have”

    So now bosoms are in vogue all over the floor of the House.

  24. Mary says:

    73 – whoa, that sounds perfect. So he’s saying there is House intel info HE has, or maybe that the House Chair doesn’t even have but that HE has?

    And how did he get the info? HAHAHAHA! Maybe it’s time to refer an investigation on that question to — oh wait. Mukasey – Mueller. The Double M crime sindicate. Never mind.

  25. cboldt says:

    Although the Constitution is very clear on the point, “for any Speech or Debate in either House, they shall not be questioned in any other Place.” Sanction by the chamber is the end of the line.

  26. MadDog says:

    Was that it?

    I was hoping that someone would actually hold to an objection, but it seems this was only to get some Cspan time for playback commercials in one’s district.

    Oh well…sigh!

  27. cboldt says:

    According to Wikipedia

    U.S. support for paramilitary operations in Nicaragua — July 19, 1983
    Involvement of Cuba and communist countries in Nicaragua — February 25, 1980
    Implementing the Panama Canal Act of 1979 — June 20, 1979
    Trade between the U.S. and Great Britain — May 27, 1830
    Relations with Indian tribes — December 27, 1825

    • PetePierce says:

      Thanks-so there were several secret sessions. And now Bmaz has me back in my perpetual state of confusion because he mentions

      the procedural order allows for a vote on the Senate bill before the new House one

  28. bmaz says:

    Hey, since cboldt is here, or anyone else for that matter, was it true that the procedural order allows for a vote on the Senate bill before the new House one, or was that just a false rumor from inexperienced readers (like me)?

    • cboldt says:

      was it true that the procedural order allows for a vote on the Senate bill before the new House one, or was that just a false rumor

      There’s no such vote as a matter of right. If the House Rules Committee had decided to put out a rule to vote on the Senate bill first, it could have.

      • bmaz says:

        I read something last night that I thought looked like it said just that. Then someone here this morning said Christy Hardin Smith had said the same thing at FDL. I will see if I can find it, or if anyone else has it handy that would be great. Can’t find it now that I want it – oh well…..

        • cboldt says:

          I asked (certainly this a.m. maybe yesterday too) whether anybody had seen signs of a House Resolution to take up the Senate-passed language. And I also said this morning that if H.Res.1041 fails (i.e., the House votes against even debating its own bill), that the House could take up the Senate bill. I didn’t mean for that to be taken as “immediately,” but I see that’s the most natural take.

      • PetePierce says:

        So forgive me if this has been sorted out before, I wasn’t able to follow what happened with FISA all day–is there a House Bill, a Senate Bill? With positions staked out on immunity and several other issues? House Democratic Substitute amendment for H.R.3773, H. Res. 1041 or who/what’s on first(base)?

        • cboldt says:

          At this moment, both past Senate and current House action are running in the substantive bill, H.R.3773. Technically, there is H.R.3773 as amended by the Senate, and a proposed substitute amendment that removes all the Senate language and puts in House language.

          H.Res.1041 is a House procedural bill, that if passed, says that the House will take up the House-proposed substitute amendment, debate for one hour, and if passed, will put the House amendment is the vehicle known as H.R.3773.

          So, what’s up first is H.Res.1041. If that passes, then an hour of debate on the House language, then a vote on the House language.

        • PetePierce says:

          Yep thanks. I’m glad I don’t have to pass any exams on current Senate and House procedural moves.

  29. PetePierce says:

    I’m wondering how long it will take a shaky phone video of the Secret Session to make it to You Tube, and have the warm fuzzy feeling that now that Dr. Phil is weighing in on Spitzer is this a great country or what?

  30. cboldt says:

    So, The House agreed to secret session, and following that, to adjourn for the day.

    As long as H.Res.1041 comes up first thing tomorrow (and is passed), I don’t see how the GOP can prevent a vote on amended H.R.3773 from happening tomorrow.

  31. cboldt says:

    The House Rules Committee could put out a H.Res.104x (whatever the next number is) that calls for debate and vote on the Senate-passed language of H.R.3773. I haven’t seen any sign of an intention to do so, but House leadership has the power to rearrange the order of business.

  32. cboldt says:

    So what’s the projected vote on HR 3773, as far as passing? How many “blue dogs” need to cross over, etc.?

  33. emptywheel says:

    cboldt

    Which direction do you consider a cross-over? Blue to Dem, or Blue to GOP?

    Per McJoan, we’ll have the support of 6 of the 21 Blue dogs who sent the letter.

    So 233-21 = 212 plus 6 = 218.

    If that vote holds, that’d result in 218 v. 217, and the bill would pass, right? (Fixed my math)

    • cboldt says:

      Which direction do you consider a cross-over? Blue to Dem, or Blue to GOP?

      LOL. On this bill, from blue to dem.

      There are currently 431 members duly sworn. Some will be absent too. Sounds like a very close vote.

    • emptywheel says:

      Ah, forgot all the Reps who passed away and quit.

      Right now we’re at about 216, though with some confidence in passage, I’m hearing.

      It’ll be close.

  34. CTuttle says:

    here’s a pertinent quote from Kagro X;

    So the House gets to strip immunity (and the other junk) back out of H.R. 3773, and the Republicans can’t just undo that work with a motion designed to peel off Blue Dogs. If the amendment to the Senate amendment passes, it pops right back out of the House and goes back to the Senate on the express bus, no stops.

    And there’s more. It arrives back in the Senate in privileged form, as a message from the House (the message being: we amended your crap) the consideration of which is not subject to filibuster. To be sure, the Republicans (or anyone willing to stand in their shoes) can filibuster the actual debate on the House amendment to Senate amendment, but they can’t filibuster the question of whether or not to even have that debate, as they can with most other legislation.

  35. Mary says:

    Partial Bingo!

    Mueller’s “Clean Team” crew at FBI on at least two occassions where there was a record left, went to the FISC for orders, were told they could NOT get the orders, and so they just went ahead and surreptitiously got the info using NSLs instead.

    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.

    I’m guessing parts of FISC are getting pretty pissed off by now.

    So when and how are people who a court ruled should not be subject to the govt’s search and who are searched anyway – when and how is there recourse for that?

    • bmaz says:

      Since they don’t who they are, they have none. And nobody has standing to sue for the disclosure of who they are…

  36. Mary says:

    113 – exactly. That’s what is part of the problem with the whole set up, especially now that they have moved from really having a limited role of secret court access only for intercepts of foreign intel, with no ability to use the info (the wall – although it was incorrectly structured imo) on the crime side, to now even EXPRESSLY ALLOWING in the Pat Act fishing expeditions against US citizens where the primary purpose is just that – fishing – as long as there is “some” enunciatable (word?) claim of “some” foreign intel purpose, all with no criminal probable cause and no checks, no balances.

    How illusory are the FISA civil and criminal claims provisions, even when there were truly limits on fishing through US citizen info without criminal probable cause? The whole switchover, allegedly to address the issues caused by “the wall,” to allowing almost any kind of surveillance on any American with the merest breath of a requirement that there be probable cause to think they may be in contact with an agent of a foreign power (oh, wait, we’re going to make that just any foreign person now, right?) so that the door is opened to all kinds of searches and seizures In HOPES of Finding evidence of criminal matters (for which there is no criminal probable cause to justify a warrant) —- it just floors me and is just skimmed over by whispering “wall” here and there.

    grrrrrrrrrrrrrrrr

    signing off

    • cboldt says:

      How illusory are the FISA civil and criminal claims provisions, even when there were truly limits on fishing through US citizen info without criminal probable cause?

      The civil and criminal remedy sections are totally illusory. But you hit on another point that’s bugged me, too. That of bootstrapping criminal probable cause from either thin air, or from some tenuous exclamation of “I was looking for foreign intelligence.”

      • bobschacht says:

        The civil and criminal remedy sections are totally illusory. But you hit on another point that’s bugged me, too. That of bootstrapping criminal probable cause from either thin air, or from some tenuous exclamation of “I was looking for foreign intelligence.”

        As in, “We just happened to be checking to see if terrorists were using escort services in the East Coast metropolitan areas, and gee, were we surprise when we saw Elliot Spitzer’s name.”

        Bob in HI

  37. cboldt says:

    Anybody see Kagro X’s post on DKos?

    Thanks for the link. I don’t think the procedural effects are quite as “profound” as they are presented, but he’s right that the minority can’t object to a “motion to proceed.” That would have been true if S.2248 had been the vehicle, too.

    There really isn’t any procedural difference, at least not that I can see. The big deal, and one of the posts picked up on this, is that delay didn’t result in much traction on the “gotta have immunity” argument. The next “big deal” will be that each chamber will have passed a bill, but with differences. They can pass amendments back and forth, and eventually reach a point known as “disagreement” at which point a conference is in order.

    Some bill die somewhere along this process.

    Anyway, the neat thing will be that the ball will pass from the House to the Senate. The Senate could well sit on it, with the net result being an impasse.

  38. PetePierce says:

    Another report of blanket demand for phone records from your friendly M&M kids.

    Report on F.B.I. Use of Personal Data

    And after all, who knew? You thought AQ was a threat but it is after all, armies of Killer Hookers and Escort Services that threaten your freedom. The hookers hate your freedom. The hooker fundamentalists want to destroy civilization as you know it.

  39. CTuttle says:

    TPMMuckraker posted this on their Secret Session post…

    Update: And here’s Rep. Rush Holt (D-NJ), a member of the intelligence committee, who’s similarly skeptical:

    “I believe in the use of secret sessions in the House when they are intended to truly educate members on the issues and provide them with valuable classified information. Secret sessions should not be used as a cynical, delaying tactic to block the House from voting on critical legislation that would strengthen our intelligence collection efforts and protect the American people from warrantless surveillance. I will be interested to see if Mr. Boehner truly has new classified information on this program to share with members of the House, and I will seek the opportunity to inform my colleagues of what I have learned about this program and the President’s actions in this matter.”

    • klynn says:

      Again, how about a counter offer to hold the secret session after bringing in Klein and Pasdar to testify (on CSPAN).

  40. pdaly says:

    This excerpt from an article at Wired.com has me wondering if the secret session is the Republicans’ way to prevent any talk about the subject once the House returns to open session: looks like both classified and unclassified info discussed during secret sessions cannot be mentioned in open session. I hope this is wrong.

    New York Democratic Congressman Jose Serrano said he’s not going.

    “If I forget and mention some of that debate in this debate [tomorrow], what kind of trouble am I in?,” Serrano asked. “This makes American people think we don’t want to discuss in public some things and may in fact strike fear into members to vote for a bill they should not vote for.”

    Under questioning prior to the debate, Republican whip Roy Blunt (R-Missouri) said he doesn’t have new secret information, just secret information that only members of the intelligence committees have seen.

    “I haven’t suggested it is at the Top Secret level or at the program level,” Blunt said. “This is information it would be helpful for all members to talk about. I’m not going to talk about the Top Secret part of the program, but I have some information that would help the debate that rises to the secret level.”

    While members can’t later speak about any classified or unclassified information discussed in the meeting, Senate Majority Leader Steny Hoyer (D-Maryland) clarified that members were free to say they went to the secret session.

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