Archive for category: emptywheel

Both the WaPo and the NYT have stories today explaining how the crisis in the warrantless wiretap program got so bad that Congress got punked into passing a shitty bill. The story is simple, on its face. The FISC rejected a government subpoena in March, another in May, and those two rulings resulted in the government losing the ability to wiretap a great deal of foreign communication. Voila! The President gets to tell Congress it can’t take vacation.

But something’s missing from this process: the appeals process.

Like most legal decisions, FISA allows for a review process. If the FISC rejects a subpoena, the government can appeal that decision to the Foreign Intelligence Surveillance Review Court (FISRC). And if they uphold the rejection, the government can appeal to SCOTUS. Here’s how it works:

If [FISC] judge so designated denies an application for an orderauthorizing electronic surveillance under this chapter, such judgeshall provide immediately for the record a written statement of eachreason of his decision and, on motion of the United States, the recordshall be transmitted, under seal, to the court of review established insubsection (b) of this section.

[snip]

If [FISCR] determines that the application was properly denied, thecourt shall immediately provide for the record Read more →

You know how Thomas Friedman’s six months always seem to end up being indefinite forevers? Well, the reverse seems to be going on with Republican accusations that:

For months, congressional Democrats ignored warnings from Director ofNational Intelligence Michael McConnell that FISA’s antiquatedprovisions were tying the hands of U.S. intelligence agencies fromcollecting against terrorist communications.

In fact, it appears that Director of National Intelligence Mike McConnell actually sat on the information for months, from February or March until July, before leveling with Congress (if that’s what he did). The NYT reports:

At a closed-door briefing in mid-July, senior intelligence officialsstartled lawmakers with some troubling news. American eavesdropperswere collecting just 25 percent of the foreign-based communicationsthey had been receiving a few months earlier.

Congress needed to act quickly, intelligence officials said, to repair a dangerous situation.

That mid-July briefing came at least four months after a FISA Court judge denied (in February or March) a warrant on communications that the Administration could not verify took place outside of the United States. The Administration had first explained the problems to Congress in April, but held off describing the scope of the problem for three more months.

Intelligence Committee members acknowledged that they learned in Maythat the secret court ruling Read more →

Josh marvels at the (big surprise) latest galling corruption from a member of the Alaska delegation: Don Young snuck an earmark into a 2005 bill after it had been passed by both houses of Congress, but before Bush signed it.

The ‘Coconut Road’ earmark wasn’t in the bill passed by the Houseand Senate. I don’t mean it wasn’t in the original bills before theywent to conference (where the separate bills from the House and theSenate are reconciled into a single bill). It wasn’t in the final,reconciled piece of legislation passed by both houses of Congress after conference. 

But it is there now. 

So here’s what happened. Apparently Young added the text afterCongress had already passed it but before the president signed it. AsLaura McGann explainsin this post, this must have occurred during the process called "billenrollment" when revisions of grammar and technical but not substantivechanges are permitted to be made.

The president did sign the bill. But the portion apparentlyadded by Young, if I understand anything about our system ofgovernment, was never passed by Congress. So it means nothing.

He goes on to ask how common it is.

The details aren’t entirely clear from Laura McGann’s reporting on this. But the scheme may, in fact, be legal (or at least have legal precedent) based on a ruling issued by John Bates last year. At issue was a fiscal bill from the previous year, which passed in slightly different form in the House and the Senate. It included some politically controversial items (and passed only with typical Republican arm-twisting). So rather than pass the bill for real, BushCo just picked one and signed it into law.

TPMM reports that there is a non-public hearing on whether the plea bargain hearings for Tommy Kontiagiannis will be unsealed.

Tomorrow morning, three judges of the 9th U.S. Circuit Court of Appealswill gather in a courtroom inside an elegant 104-year-old building inPasadena for an extraordinary hearing involving one of theco-conspirators in the Randy “Duke” Cunningham bribery scandal.

The court hearing will be closed to everyone – the public, the newsmedia, the defense attorneys – save for the judges and a few lawyersfrom the U.S. Attorney’s Office.

The extreme secrecy is highly unusual. Veteran lawyers couldnot remember another time when the appeals court held a completelyclosed hearing.

The subjects to be discussed are transcripts and documentsrelated to the February guilty plea of Thomas Kontogiannis, a New Yorkdeveloper who admitted to a single count of money laundering in theCunningham case. Kontogiannis’ checkered past includes convictions forbribery and bid-rigging, an estimated $70 million fortune, and a knackfor staying out of prison.

Now, the problem here, for District Court Larry Burns is that the government didn’t say the contents of those hearings were classified until recently. Which is why we’re at the Appeals Court in the first place.

I’m sitting here with Kagro X, wating for Glenn Greenwald to interview Anthony Romero. I suspect the FISA bill will be a topic of hot conversation.

Meanwhile, I wanted to point to the "clarification" given by the guy whom Congress wants to give complete power to decide whom to wiretap and whether those wiretap targets are in the US or not. I may come back to it later (though given my posting of late, maybe not). But here’s an interesting detail about the hospital visit:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

I find this interesting for several reasons. First, it suggests that Ashcroft was complaining that his staffers weren’t given security clearances to be read into this program. Recall that Bush refused to give some Office of Professional Responsibilities investigators security clearances, which meant they couldn’t investigate the program. We also know that Cheney and Addington were working directly with John Yoo, bypassing Ashcroft, to pull off their shredding of the Constitution. But this detail suggests they were also shrouding their program by Read more →