Liveblog of SJC Reauthorization of PATRIOT Act

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You can watch the hearing here.

Durbin joins Feingold in complaining that the substitute bill took out the Section 215 oversight.

Durbin: I’m especially concerned that the substitute removes one of the most important reforms from bill–the requirement that govt show some connection to terrorism. Real reason why that has been taken out has been cloaked in secrecy.   I believe that each member of this committee seek a classified briefing to understand why this has been taken out.

Kyl asking for more time, and a classified briefing. 

Kyl: Every time you include a sunset with a bill it provides bargaining leverage for those trying to cut back on authorities in the bill.

[Gee, you think?]

Kyl: Rowley warned of lone wolf problem with Moussaoui.

[Ignoring that they could have gotten a criminal warrant.]

Kyl: Why would we sunset the NSLs? Abuses that occurred are not continuing. 

Franken: Yield for clarification. You said passed on recommendations of the 9/11 Commission?

Kyl: Yes, DiFi and I had a series of recommendations from terrorism subcommittee. For the most part acted on right after 9/11, but not in entirety. 9/11 Commission made series of recommendations, three different laws. My point was that in trying to respond to recommendations.

Cardin: If this gets delayed until December because of differing views, we’ll do a disservice. Compliment you and DiFi. SJC and SSCI both have goal of protecting security and rights of people. Judicary focused on rule of law. 

Whitehouse: Compliments to Leahy and DiFi, and staffs of SSCI and SJC. With adoption of Leahy/DiFI substitute, I be added to cosponsor bill.

DiFi: Respond to two things. Roving wiretap. Has been suggested that roving wiretaps can be used against anyone. In fact roving wiretap can only be used after court order, probable cause that agent of foreign power. W/o that power, terrorist can thwart surveillance by switching phone. That has increasingly happened. Court must also find that target trying to avoid surveillance. NSLs: carefully targeted to make sure can’t be used for highly sensitive information. Subscriber information. Name when phone number is known.

Feingold: As to issue of whether this bill will have to be passed by end of year. Record is when difficulty, extend sunset of bill. No one trying to have PATRIOT die. Never opposed having this in place. No rush to this. As to NSL issue. I am not seeking to have scenario where NSL authority dies. We proposed NSLs that does not have sunset. Notion Read more →

Feingold’s Opening Statement on PATRIOT Reauthorization

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His statement–as prepared–is below. Note, in particular, that the substitute bill dumped last night takes out oversight on the Section 215 that was originally in Leahy’s bill.

Thank you, Mr. Chairman. When Congress reconsidered the sunsetting provisions of the Patriot Act reauthorization four years ago, I was unable to support the final reauthorization package because I did not believe that it contained adequate oversight and safeguards for some very intrusive surveillance powers.

But I have to acknowledge that Congress did some things right back in 2005 and 2006. First and most importantly, it included new sunsets for three provisions, which is why we are here today. Although it is my preference to pass the right law in the first place, sunsets at least require us to reconsider laws that are controversial or have been passed in haste, as the original Patriot Act was.

Second, during the 2005 reauthorization process, Congress looked at the list of sunsetting provisions and recognized that there were other controversial surveillance laws that had been broadened or codified by the Patriot Act that did not sunset, but that were nonetheless worthy of attention. So Congress did not limit its reconsideration to the sunsetting provisions. It also took up ‘sneak and peek’ criminal search warrants and National Security Letters, neither of which was subject to a sunset. I believe Congress should similarly take a comprehensive approach to the reauthorization process this year, and should take this opportunity to revisit not just the three expiring provisions, but rather a broad range of surveillance laws enacted in recent years to assess what additional safeguards are needed.

Finally, Mr. Chairman, as you well know, early during the reauthorization process in 2005 the members of this committee were able to reach a compromise and report out a bill 18 to zero. It was a difficult negotiation and the bill was far from perfect, but it included enough privacy protections that I was able to support it. That bill went on to pass the Senate by unanimous consent. During the conference process, key elements of that carefully negotiated package were removed. But that 2005 Senate bill nonetheless proved that unanimous bipartisan agreement is possible on these complex issues.

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DiFi: Zazi Investigation Biggest Since 9/11

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I’m watching the Senate Judiciary Committee hearing on the PATRIOT Reauthorization. DiFi and Pat Leahy apparently revamped the bill last night.

She started by saying that the ongoing investigation into Najibullah Zazi is the biggest domestic terror investigation since 9/11.

An interesting claim…

Updae: And, 10 hours later, I fix the typo in the headline, thanks to Bob in HI.

On PATRIOTs and JUSTICE: Feingold Aims for Justice

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Over the last two days, I described what Patrick Leahy’s bill renewing the PATRIOT Act does and noted Russ Feingold’s complaints that, thus far, the debate on PATRIOT is happening without we citizens knowing how PATRIOT (and FISA) have been used. Today, I wanted to talk about how I think Leahy’s PATRIOT renewal (and a bill to reverse retroactive immunity) appears to be an attempt to forestall Feingold’s efforts to roll back those unrevealed uses of PATRIOT and FISA.

Before I get into what is in Feingold’s JUSTICE bill, first understand the timing. Feingold introduced his bill before Leahy (with Ed Kaufman, the Vice President’s stand-in, co-sponsoring) introduced PATRIOT renewal. Leahy explicitly integrated select aspects of Feingold’s bill into the PATRIOT renewal. And tomorrow, the Senate Judiciary Committee will mark up the PATRIOT renewal.  Since Feingold’s JUSTICE is premised on improving FISA while renewing PATRIOT, Feingold’s measures that don’t get included in tomorrow’s markup will be much more difficult to pass.

As a reminder, here was my summary of Leahy’s bill:

So to summarize, the Leahy bill (which is co-sponsored by Ben Cardin, Ed Kaufman, and Bernie Sanders) would do the following:

  • Extend the roving wiretap, Section 215 (tangible things), and “lone wolf” provisions of the PATRIOT Act to 2013
  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism
  • Gives recipients of NSLs and Section 215 orders greater means to appeal the gag order associated with it

In his testimony at least week’s hearing, Leahy had the following to say about Feingold’s bill:

I have consulted with Senators Feingold and Durbin, who introduced a more expansive bill last week, and, with their encouragement, borrowed a few accountability provisions from their proposal.

[snip]

Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities — such as wiretaps, physical searches, and pen register and trap and trace devices — that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin. Read more →

On PATRIOTS and JUSTICE: What We Don’t Know

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The first thing Russ Feingold said in last week’s hearing on the PATRIOT Act renewal is that there’s something about the way the PATRIOT Act works that has not been made public.

Mr. Kris, let me start by reiterating something you and I have talked about previously. And that’s my concern that a critical information about the implementation of the PATRIOT Act has not been made public, information that I believe would have a significant impact on the debate. I urge you to move expeditiously on the request that I and others on this Committee have made before the legislative process is over.

In his statement, Feingold reiterates that concern, comparing the current debate with the earlier debates on FISA and PATRIOT reauthorization.

I welcome the administration’s openness to potential reforms of the Patriot Act and look forward to working together as the reauthorization process moves forward this fall.

But I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate.

[snip]

This time around, we must find a way to have an open and honest debate about the nature of these government powers, while protecting national security secrets.

As a first step, the Justice Department’s letter made public for the first time that the so-called "lone wolf" authority – one of the three expiring provisions – has never been used. That was a good start, since this is a key fact as we consider whether to extend that power. But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

You get the feeling that Feingold wants to draw attention to this aspect of the Section 215 of the PATRIOT Act that hasn’t been made public, huh?

Before we look at what that might be, let me attend to the earlier references Feingold makes. Read more →

On PATRIOTs and JUSTICE: Leahy’s PATRIOT Renewal

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The House and Senate had hearings on the reauthorization of the PATRIOT Act last week while I was traipsing around the Big City. You can access links to watch the Senate hearing here and the House hearing here. In addition, four Senators (including Feingold, Dodd, Leahy and Merkley) have introduced a bill to repeal telecom immunity, and Senators Feingold and Durbin introduced a JUSTICE bill to further roll back the PATRIOT Act as well as parts of FISA.

I’m going to try to do a blizzard of posts between now and Thursday, when the Senate Judiciary Hearing will be marking up its version of the bill. For now though, let me review what Leahy’s reauthorization bill–S.1692–does. As described by Leahy in his testimony, the PATRIOT reauthorization extends the sunset for some PATRIOT provisions to 2013, but adds in additional oversight as follows.

I introduced a bill with Senators Cardin and Kaufman that aims to strike the kind of balance the administration urges. It will extend the authorization of the three expiring provisions with new sunsets. It adds checks and balances by increasing judicial review of Government powers that capture information on U.S. citizens. It expands congressional oversight and public reporting on the use of intrusive surveillance measures.

[snip]

In response to these concerns, our bill would impose higher standards on the issuance of NSLs and improve judicial oversight of their use. The bill also addresses the constitutional deficiency recently identified by the Second Circuit Court of Appeals, which found that the nondisclosure, or "gag orders," issued under NSLs infringe constitutional rights, as I have long maintained. The bill establishes a procedure giving the recipient of an NSL greater ability to challenge a gag order, eliminates presumptions that allow the Government to ensure itself of victory in defending such orders, and imposes a renewable one-year time limit on these orders.

[snip]

The power of the Government to collect records for tangible things under Section 215 of the original Patriot Act, commonly referred to as the "library records" provision, is another authority that I fought hard to reform during the last reauthorization. The Leahy-Cardin-Kaufman bill adopts the appropriate constitutional standard that I supported in 2006. The standard we propose eliminates the presumption in favor of the Government and, instead, requires the Government to show the connection between the items sought and a suspected terrorist or spy.

This bill would also establish more meaningful judicial review of Section 215 orders and the gag orders covering them. Read more →

Dennis Blair’s Not Going to Touch Bush’s “Inaccuracies”

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Fresh off his fishing vacation break from retirement, MadDog found this declaration that Dennis Blair submitted in the al-Haramain case affirming that the documents correcting Bush’s inaccuracy are, themselves, classified.

There’s a really fascinating paragraph in that document:

I have reviewed the public and In Camera, Ex Parte Declarations of then-DNI Negroponte lodged in June 2006; the public and In Camera, Ex Parte Declarations of Lieutenant General Keith B. Alexander, Director of the National Security Agency, also lodged in June 2006; the public Declaration of John F. Hackett of the Office of Director of National Intelligence submitted in May 2006; and a copy of the classified "Sealed Document" that I understand was inadvertently disclosed to the plaintiffs and then lodged with the Court at the outset of this case. I have also reviewed the public and classified declarations submitted in February 2009 in connection with the declassification review ordered by the Court. This includes the public and classified declarations or John F. Hackett of the Office of Director of National Intelligence submitted on February 27, 2009; the public and classified declarations of Joseph J. Brand of the National Security Agency submitted on February 27, 2009; the classified Declaration of Anthony J. Coppolino, Department of Justice, Civil Division; and the classified Declaration of Andrea M. Gacki, Department of the Treasury, Office of Foreign Assets Control. [my emphasis]

To summarize, here’s what Blair said he had reviewed:

  • Public and classified Negroponte declarations, June 2006
  • Public and classified Alexander declaration, June 2006
  • Public Hackett declaration, May 2006
  • Sealed Document (the wiretap log)
  • Public and classified Hackett declarations, February 2009
  • Public and classified Brand declarations, February 2009
  • Classified Coppolino declaration, February 2009
  • Classified Gacki declaration, February 2009

See what’s missing?

Blair reviewed Hackett’s public declaration from May 12, 2006–but not his classified one. Nor did he review Coppolino’s or Gacki’s classified declarations from the same date. [Correction: I was working from memory–only Hackett submitted a declaration in May 2006. Update: I’m reviewing the language about this declaration from 2006, and they don’t say Hackett authored it (lots of the use of passive throughout), though it appears to come from ODNI, so Hackett.]

Back in March, I suggested that this classified declaration was the source of the "inaccuracy" that needed to be corrected before Judge Walker reviewed the record.

On May 12, 2006, in response to the judge’s skepticism that the document and a subsequent government filing needed to be handled ex parte, DOJ submitted superseding ex parte in camera material, and filed a motion opposing efforts to unseal these documents. 

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al-Haramain Reply Filed; Constitution & Rule Of Law In Judge Vaughn Walker’s Hands

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images5thumbnail1.thumbnail.jpegIn a spring and summer of noteworthy and important legal cases winding in and out of the national conscience, or at least the conscience of the enlightened readers of this blog, perhaps none have as much weight and significance as al-Haramain v. Obama, pending before Judge Vaughn Walker in the Northern District of California. Subsequent to oral argument set before the court on the morning of September 23, Judge Walker will issue a most critical opinion on Plaintiff al-Haramain’s motion for summary judgment.

We have previously discussed in depth the initial motion for summary judgment by plaintiffs and the timeline for the subsequent briefing thereto.

Today, Plaintiff al-Haramain filed their Reply, the last brief joining the issues and argument on plaintiffs’ motion for summary judgment prior to argument and decision.

At long last, the time has come for this Court to adjudicate the merits of this lawsuit and confirm, in the words of lead defendant Barack H. Obama, that “[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”

Indeed the time has come, and no less than the sanctity of the Fourth Amendment, Constitutional separation of powers, the continuation of unbridled unitary executive power and the rule of law sits in the hands of Judge Walker. And the plaintiffs’ counsel has teed up the ball quite nicely for him.

On whether the government’s surveillance program was lawful:

Sometimes a litigant’s brief is more significant for what it does not say than for what it says. That is the situation here. After three and one-half years of litigation in which the government has exploited multiple procedural devices to evade an adjudication on the merits, defendants say nothing on the ultimate question now posed for decision: Was the TSP unlawful?
…
Given the present procedural posture of this case, however, that silence has consequences. “[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.” Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146, n. 7 (C.D. Cal. 2005); accord, e,g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432 (E.D. Pa. 2008) (failure by party opposing summary judgment to address moving party’s claims “constitutes abandonment of those claims”). On this motion for partial summary judgment of liability – where plaintiffs have squarely presented and argued their claims on the merits as to why the TSP was unlawful – defendants’ Read more →

The Royce Lamberth-Vaughn Walker Golf Match

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Call me crazy. But reading yesterday’s Royce Lamberth opinion on the Richard Horn case (see bmaz’ post for background) makes me think that Lamberth–Chief Judge for the DC District–and Vaughn Walker–Chief Judge for the 9th District–have been playing golf together recently at some Chief Judges August retreat or something. Because Lamberth’s opinion could have been written by Walker in the al-Haramain case, except of course the underlying facts–but not the Obama Administration’s legal stance–are totally different.

Here are the similarities:

Appeals Court Ruling in Favor of State Secrets Set Aside

In both cases, the Appeals Court in question at least partly ruled in favor of the government’s State Secrets invocation only to have something set that aside. In the Horn case, it was the discovery that the CIA had been lying its ass off in its declarations for years. In the al-Haramain case, it was Walker’s ruling that FISA trumped State Secrets.

This is of course the biggest difference between the underlying facts: the Appeals Court has already substantially rejected the State Secrets invocation in this particular case, whereas in al-Haramain, a statute has (at least for now) been ruled to set aside the State Secrets invocation. But the practical result is the same: the government is still, functionally, insisting on treating the litigation as if State Secrets still held and with that stance, basically arguing that executive authority over classification and secrecy trumps separation of powers. 

Government Refusal to Acknowledge a Court Ruling

In order to proceed as if the State Secrets claim still held in each case, the government is simply proceeding as if the Court judgments have no authority. In al-Haramain, the government repeatedly refused to acknowledge Walker’s decision that FISA did trump State Secrets, continuing on as if it still could protect all the information in the suit. In so doing, it was basically trying to negate the very idea that FISA restricted executive branch actions.

In Horn, the government is trying to claim privilege to prevent the plaintiff from making even a circumstantial case that the government illegally wiretapped him.

Notably, the government’s protective order, supposedly based on the assertions of privilege by Director Panetta, would not even allow the plaintiff to build a circumstantial case that U.S. Government eavesdropping equipment was used to eavesdrop on him, because the protective order would prohibit the plaintiff even from making this argument.

[snip]

The government’s interpretation of Panetta’s assertion of the privilege, if sustained, would eviscerate the Court of Appeals decision that the very subject matter of Horn’s action is not a state secret.

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Bush’s Info Sharing Memo and the Warrantless Wiretap Revelations

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Okay, this is going to be a bit weedy, but bear with me.

In the wake of the recent domestic spying revelations and the news that the NCTC center–and current Deputy National Security Advisor John Brennan–were key players in Bush’s illegal spying program, I’ve been reading the October 2007 National Information Sharing Strategy.

And I couldn’t help but notice that the day Risen and Lichtblau first exposed the domestic wiretap program, Bush issued a Memorandum to Heads of Executive Departments and Agencies setting up a framework for information sharing.

On December 16, 2005, in accordance with section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004, the President issued a Memorandum to Heads of Executive Departments and Agencies prescribing the guidelines and requirements in support of the creation and implementation of the [Information Sharing Environment]. In the December Memorandum, the President directed that the ISE be established by building upon “existing Federal Government policies, standards, procedures, programs, systems, and architectures (collectively “resources”) used for the sharing and integration of and access to terrorism-related information, and … leverage those resources to the maximum extent practicable, with the objective of establishing a decentralized, comprehensive, and coordinated environment for the sharing and integration of such information.” [my emphasis]

Now, the memo–and the creation of ISE itself–is not suspicious. As noted, it was required by the Intelligence Reform and Terrorist Prevention Act of 2004. It’s the timing I find curious.

If I read section 1016 correctly, it requires the President to start pushing agency heads to share information 270 days after passage of the law–or roughly September 13, 2005. 

(d) Guidelines and Requirements.–As soon as possible, but in no event later than 270 days after the date of the enactment of this Act, the President shall–

[snip]

(3) require the heads of Federal departments and agencies to promote a culture of information sharing by–

(A) reducing disincentives to information sharing, including over-classification of information and unnecessary requirements for originator approval, consistent with applicable laws and regulations; and

(B) providing affirmative incentives for information sharing.

Now, perhaps Bush fulfilled this requirement with EO 13388, signed on October 25, 2005. But the language in Bush’s own Information Sharing Strategy–with its explicit invocation of section 1016–seems to suggest this Memo fulfilled that requirement. Only he sent it three months late. And, coinkydink of all coinkydinks, he sent it just as it became known that he was spying on Americans.

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