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DiFi’s Amendment

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I raised DiFi’s rather interesting amendment to the FISA bill in this post. Now that the transcripts are up from yesterday’s debate, I’d like to fine tune what I said about the amendment.

First, I was mistaken when I told a few people that Leahy and Jello Jay were co-sponsors of DiFi’s amendment. They are co-sponsors of her exclusivity amendment, but only Bill Nelson is co-sponsor of her immunity amendment.

I ask unanimous consent that Senator Nelson of Florida be added as a cosponsor of the FISA Court evaluation on the immunity question amendment.

Second, here’s what DiFi says about her reluctance to vote for the bill with immunity that doesn’t include her amendment.

I voted for telecom immunity in the committee. I am not inclined to vote for it, to be candid with you, unless this amendment is adopted.

Not an absolute commitment, particularly coming from DiFi. But a start, at least.

Now here’s her description of what her amendment says. She starts with a characterization of the immunity included in the SSCI bill:

So let me begin by talking about the immunity provision of the bill. It is not as expansive as some would make it sound. The language would only cover cases where the Attorney General certifies that the defendant companies received written requests or directives from top levels of the Government for their assistance.

In other words, the Government, in writing, I stress in writing, assured those companies that the program was legal, the President had authorized the program, and that its legality has been approved by the Attorney General.

DiFi’s first paragraph is curious. It describes immunity broadly, including "written requests" or "directives"–I can’t tell whether the "directives" here, given the context, are written or not. She further says it would cover those who got these written and possibly non-written requests from "top levels of Government," but doesn’t specify that, by law, the immunity should be restricted to those who received written requests from the AG.

That said, I’m not sure what her following paragraph means. Is it conditional, implying that companies would only get immunity if they had something in writing. Or does DiFi’s, "I stress, in writing," mean the companies did, in fact, get something in writing? Also, her second paragraph seems to imply that only those who got authorization beforehand from the AG would qualify for immunity, which is different from what her first paragraph says. Read more →

Dick versus Scottish Haggis: The Grudge Match

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Arlen "Scottish Haggis" Specter took the opportunity yesterday to enter a letter exchange he had with Dick Cheney into the Congressional Record. Here’s that exchange (see below the letters for my analysis; h/t for Selise to alerting me the transcripts were up):

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.

Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance,

No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration’s continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration’s electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration’s position on this legislation, I have been unable to get any response, including a “no”. Read more →

Leadership

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As you’ve likely heard, Senator Reid has pulled the FISA bill. We win–for today, at least.

Here’s Nico PitneyThe HuffPo’s write-up.

The Dead Tree Media is a little behind. At 9:16, the headlines read:

Telecom Immunity Bill Advances

Telecom Industry Wins a Round on Eavesdropping

Um, no they didn’t.

A statement of thanks from Senator Dodd:

Today we have scored a victory for American civil liberties and sent a message to President Bush that we will not tolerate his abuse of power and veil of secrecy. The President should not be above the rule of law, nor should the telecom companies who supported his quest to spy on American citizens. I want to thank the thousands of Americans throughout the country that stood with me to get this done for our country.

And if you’d like to return the favor, this might be a good place to start.

Senator Dodd Tries to Save the Constitution

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Senator Dodd is on the Senate floor, explaining why, later today, he will filibuster immunity for the telecoms. Via email, here he is knocking down the claim that AT&T will go out of business if the suits go forward.

"State secrets," "patriotic duty"—those, as weak as they are, are the arguments the president’s allies use when they’re feeling high-minded! When their thoughts turn baser, they make their arguments in dollar signs.
 
Here’s how Mike McConnell put it:
 
"If you play out the suits at the value they’re claimed, it would bankrupt these companies. So…we have to provide liability protection to these private sector entities."
 
Mike McConnell is quickly becoming an accidental truth-teller! Notice how the president’s own Director of National Intelligence concedes that if the cases went to trial, the telecoms would lose. I don’t know if that’s true, Mr. President—but we can thank Adm. McConnell for telling us how he really feels.
 
Of course, it’s an exaggeration to claim that that these companies would surely go bankrupt, even if they did lose. Read more →

Did Nacchio Lie, or Just Misunderstand?

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The Rocky Mountain News has a good summary of the issues the Tenth Circuit will consider this week in Joseph Nacchio’s appeal. It’s worth reading the whole thing to get an idea of all the issues. But I’m most interested in the representation the RMN makes of the government’s claim regarding Nacchio’s claim that he lost business because he refused to wiretap Americans.

The judge should have let Nacchio present his classified, national security defense. Previous filings indicate Nottingham ruled the defense was irrelevant.

Defense argument

The CEO was optimistic about Qwest in early 2001 because he knew the company was in line to receive top-secret government contracts. Redacted court documents suggest Nacchio planned to argue that Qwest didn’t get the contracts because he refused to participate in a phone spying program.

Prosecution argument

Nacchio’s version of events was "a lie," said First Assistant U.S. Attorney Cliff Stricklin, lead prosecutor on the case, while speaking at a Denver luncheon in October. He said prosecutors were ready to discredit the defense if Nacchio presented it.

Now compare that to what a government source told the NYT for last night’s article.

A government official said the N.S.A. intended to single out only foreigners on Qwest’s network, and added that the agency believed Joseph Nacchio, then the chief executive of Qwest, and other company officials misunderstood the agency’s proposal. Bob Toevs, a Qwest spokesman, said the company did not comment on matters of national security.

One source is saying Nacchio’s lying, the other is saying Nacchio just misunderstood the ask. Read more →

Someone Doesn’t Want the Telecoms to Get Immunity

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Because they’re leaking–and leaking big–to James Risen, Eric Lichtblau (and Scott Shane) again. Almost two years to the day since their first big scoop.

For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

I need to go hang at FDL for the book salon thread (come meet Bob Drogin!). Afterwards, I’ll come back and fill this thread out some.

One comment though: this story says the change came bc everyone went on fiber. David Kris has shown pretty persuasively that’s not true–the wire/air split wasn’t that different in 1978 when FISA was written. The difference, I suspect, is that now everything is digital. 

All Your Data Belong to George

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There’s a striking passage in one of the documents released in yesterday’s document dump.

Would NSA object to a legislative codification of E.O. 12333 minimization?

Yes because it can be difficult to change a statute if the procedures need to be changed in order to meet operational needs.

The passage refers to minimization, the process by which intelligence agencies protect the privacy of Americans whose communications are collected incidentally to their wiretapping activities. I find the passage striking, first of all, because it (indeed, the whole document) emphasizes the basis for minimization requirements in EO 12333, and not FISA. In response to a question about where minimization comes from, the document points to the EO.

Where does the need for minimization procedures come from?

The most direct answer is Executive Order 12333. Section 2.3 of that Order specifies that agencies in the Intelligence Community are authorized to collect, retain, or disseminate information concerning U.S. persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.

This basically repeats that passage of EO 12333, which says,

Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order.

And then goes on to describe the kind of information that can be collected.

But why refer to an Executive Order, when FISA imposes a statutory requirement on minimization? And FISA’s minimization requirements provide more detail about what can and cannot happen with US person data. Read more →

Nacchio’s Hearing–before the Judges Who Gave Him Bail–Set for Next Week

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I said yesterday that the lawsuits against the telecoms were the only means left for us to find out how the government spied on Americans. I forgot about Joseph Nacchio, whose appeal will be heard by the same folks who decided his appeal addressed a "substantial issue."

The same three appellate judges who ruled that Joe Nacchio could remain free pending an appeal of his conviction of insider trading will hear his case next week, the 10th Circuit Court of Appeals announced Monday.

That could favor the former Qwest CEO because the judges already decided when they granted Nacchio’s request to stay out of prison that there was "a substantial question of law or fact" that could lead to a reversal of his April conviction.

"Nacchio has to be very happy," said Jay Brown, a University of Denver law professor who has followed the case.

The judges already have drawn some conclusions about the case and are sympathetic to Nacchio, Brown added.

But Marcy Glenn, head of the appellate practice group for the Holland & Hart law firm, didn’t think one should read too much into the fact that the panel is the same.

"The earlier decision was an interim decision, and it was made before there were any briefings on the merits of the case," Glenn said. "I would expect (the three-judge panel) to be absolutely open to all arguments at this point."

Oral arguments are scheduled for 2 p.m., Dec. 18. The case is being heard on an expedited basis, though no deadline for a decision has been set and the panel may issue its ruling at any time.

Jeralyn Merritt live-blogged a good deal of Nacchio’s trial, so hopefully she’ll give us her expert opinion on this appeal.

Phone Slip

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MadDog points out that the documents released through FOIA to EFF are available. These are documents, remember, relating to communications about the FISA amendment between DNI McConnell and Congress or representatives of telecom companies.

Declaration of what’s included

Document dump one

Document dump two

I’m reading through things now. But one thing is immediately apparent. There is almost no trace of any conversations between telecom companies and ODNI employees–there’s just one phone slip.

ODNI located one document that is potentially responsive to request number one. This document is a telephone message slip that contains the handwritten personal notes and mental impressions of an ODNI employee. This document is being withheld because it is not an agency record under FOIA. In addition, the documents qualifies to be withheld pursuant to FOIA exemptions 1,3,5 and 6.

Boy, those phone companies, they’re pretty careful, huh? Read more →

We’re Not Getting the FISA Opinions … Which Leaves Just the Lawsuits

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The FISA Court announced today that it will not release its opinions to the public.

The nation’s spy court said Tuesday that it will not release its documents regarding the Bush administration’s warrantless wiretapping program.

The Foreign Intelligence Surveillance Court, in a rare on-the-record opinion, said the public has no right right to view the documents because they deal with the clandestine workings of national security agencies.

So um, yo, Senate? If you give the telecoms immunity, we’ll never know how they spied on us.

I’m struck by how similar this opinion–written by John Bates–is to the opinion he wrote in the Wilson lawsuit. He acknowledged that there’s merit to the request, as he suggested that Valerie’s outing was troubling.

Bates acknowledged that the public would benefit from seeing the documents. The decision-making process would be understood, he said, and public oversight could help safeguard against government abuse.

And then, as he did with the Wilson opinion, he said, "um, no."

But the dangers of releasing such sensitive materials far outweigh that public benefit, Bates said.

Public opinions from the court are so rare, it’s not immediately clear what the ACLU’s options are. Because Bates alone signed the ruling, the group might be able ask for a review by the full panel. Or, it might be able to challenge the ruling before a federal appeals court.

Update: Here’s a copy of the opinion.