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FISA Update

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Apparently, Reid has brokered a Unanimous Consent agreement that everyone, from Feingold and Dodd to Jeff "Mutual Defense" Sessions, have bought off on.

cboldt’s description is, not surprisingly, the best description of what we’re looking at. What the UC sets up is the following:

  • Four uncontroversial amendments that will pass with the UC. These cover getting the FISC rulings for the past five years, emphasizing prohibitions on domestic targeting, and eliminating a 7-day deadline.
  • Two Bond amendments that will receive very little debate (20 minutes) and will pass–and I do believe they will pass–with a 50 vote margin. One of these permits wiretapping those proliferating in WMDs without a warrant. From CQ:

One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction. Its adoption would require a simple majority vote.

  • Three Feingold amendments that shouldn’t be controversial–basically two just raising the bar on whether nor not the government is really after foreign intelligence or not, and another allowing FISC to require the government to stop wiretapping if their application sucks (though via a Bond amendment, they still get to tap for 90 days). I assume they’re accorded a 50 vote margin because the Republicans don’t find them controversial.
  • Two of the three immunity provisions–both the one striking immunity altogether, and the one substituting the government for the telecoms. I assume they’ve been subject to a 50 vote margin because the Republicans know they won’t win 50 votes. In other words, our chances of using the courts to learn what Bush did will almost certainly lose.
  • One Feingold/Whitehouse amendment on sequestration–probably a better guarantee on minimization than is in the bill. I’m guessing the Republicans have wagered this won’t get the votes to pass, since they’ve agreed to a 50 vote margin. Read more →

SJC Mukasey Hearing, Part Two

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DiFi: I’ve been reading your letter. For the first time you disclose that waterboarding is not part of the approved methods. You disclose the method by which a new method is approved. Was this the case in the past?

MM: I’m not authorized to say what happened in the past.

DiFi: It is widely alleged that at least three people were waterboarded. Did the President approve that?

MM: I can’t speak to that.

DiFi: Both MCA and Detainee Treatment act, loophole is CIA. I proposed amendment that would put the entire govt under Field Manual. Accepted by House and Senate. If it comes to floor and remains in bill, once and for all, waterboarding be prohibited by govt.

MM: CIA director becomes aware, however he becomes aware of a technique, describes circumstances by which it’ll be done, to me, I consult with whomever I have to consult with, then it goes to President.

DiFi: I know how they say it works, I don’t know if it’s legal or not.

DiFi: What about contractors?

MM: I don’t know?

DiFi: I’d like to know if it’s legal to contract out enhanced techniques to a contractor.

DiFi: Why hasn’t DOJ responded to Scott Bloch?

MM: There are investigations going on by OPR and OIG into those subjects. A response has gone out to Mr. Bloch is in process.

DiFi: After receiving no cooperation for four months, Mr. Bradbury reiterates the request that we step down. I assume there is some conflict with this.

[So this is coming from OLC? Wow]

MM: Bloch is in an office that is not within the department. I will see to it that he gets a response.

DiFi: Will you copy us on that?

Kyl: Thanks for writing us a letter. Can you send up a list of all vacant slots that this committee needs to act on? [plus lots of stuff about putting brown people in jail]

Leahy: In addition to the list of empty spots, will you also send a list of those spots for which we have not nominee, and a list of letters to which DOJ has not yet responded.

Feingold: Thanks for call regarding treatment of GLBT employees at department. You appear to be embracing the Administration’s position without judgment. You say you don’t want to say whether waterboarding is torture, bc it would tip off our enemies. We have a system of public laws. Your statement suggests you’d not prosecute a govt official for violating such laws. Read more →

Not Just Immunity

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Home now! More details on my trip over the day. And thanks to bmaz for holding down the fort yesterday (though I will pester him to do his part two).

This is the video Matt Stoller took of Russ Feingold speaking to a bunch of us DFH bloggers yesterday, mostly about FISA. Feingold argued that immunity was just one part of the SSCI version of the FISA bill that sucks: just as importantly, the SSCI has inadequate protection for the privacy of Americans, particularly when they communicate with people in other countries.

Now, Feingold suggested no one had been blogging about these other topics–to which I complained that I had (and McJoan from DailyKos pretty much agreed I won’t shut up about them). Here are some highlights:

Minimization (the process by which the government segregates out US person data and eventually destroys it):

Overseas Spying (addressing the fact that through the use of Pixie Dust, Bush appears to have made it legal to spy on Americans overseas)

Mass Collection (the FISA program aims to allow basket warrants, which will provide the legal justification to do data mining)

Read more →

Anti-Immunity Porn

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Senators Dodd and Feingold aren’t waiting for Monday to keep fighting the good fight on FISA. Feingold has issued the following statement:

The conduct of Senate Republicans yesterday was shameless. After weeks of insisting that it is absolutely critical to finish the FISA legislation by February 1, even going so far as to object to a one-month extension of the Protect America Act, they obstructed all efforts to actually work on the bill. Now they want to simply ram the deeply flawed Intelligence Committee bill through the Senate. They refused to allow amendments to be offered or voted on, including my straight-forward amendment to require that the government provide copies of FISA Court orders and pleadings for review in a classified setting, so that Members of Congress can understand how FISA has been interpreted and is being applied. If the Republicans succeed in cutting off debate on Monday, the Senate won’t even get to vote on the amendment Senator Dodd and I want to offer to deny retroactive immunity to telecom companies that allegedly cooperated with the administration’s illegal wiretapping program.

Democrats should not allow the Republicans to ram this bill through the Senate without amendments. Monday’s cloture vote will be a test of whether the majority is willing to stand up to the administration and stand up for our rights. [my empahsis]

And Dodd just finished kicking some serious ass on the floor of the Senate. He has called those who claim the telecoms will go out of business "amateur economists" and pointed to AT&Ts huge profits. He explained, "the point of immunity is to challenge Bush’s assertion that he is the law." And he accused the telecoms of using the Nuremberg defense. Finally, after listing all the abuses of power that can’t be undone–including the destruction of the torture tapes and AGAG’s lies before Congress, he described immunity as one thread that we can use to combat the Administration’s abuses. "We can grab hold of the one thread left to use here and pull on it until the whole garment unravels."

Update: Whitehouse just finished speaking. Two of his best lines were, the Administration "couldn’t be troubled to get a court order, to protect these companies they’re so concerned about now" and if we pass telecom immunity, "we are taking away real rights of real Americans that are being litigated in courts right now. I don’t know if Congress Read more →

Michael Mukasey, the Shortest Honeymoon Ever

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Hoo boy, Mukasey’s having a heck of a honeymoon, isn’t he? In addition to running the joint CIA-DOJ investigation of the destroyed terror tapes, now Feingold (on both SJC and SSCI) wants him to answer the questions he refused to answer in his nomination hearings.

Dear Attorney General Mukasey:

During the hearing on your nomination to be Attorney General and in your answers to questions submitted for the record, you repeatedly refused to answer questions related to interrogation techniques on the grounds that you had not yet been briefed on the CIA’s interrogation and detention program. I was disappointed with these responses. Familiarity with the CIA program should have been irrelevant to a legal opinion about practices such as waterboarding, which have been employed by dictatorships for generations and historically condemned by our own government.

Nonetheless, now that you have been sworn in as our nation’s Attorney General and presumably have been briefed on the program, I urge you to provide your views on its legality to Congress at the earliest possible date. As a member of the Senate Intelligence and Judiciary Committees, I believe that a full and informed exchange between yourself and Congress is critically important if our intelligence activities are to be conducted consistent with our laws and Constitution and subject to appropriate congressional oversight. Such transparency would also be long overdue, given the refusal of the Department of Justice to provide to Congress any legal opinions on the program.

I oppose any interrogation techniques not authorized by the Army Field Manual, as do majorities of the Senate and House Intelligence Committees. I do not believe that their use is legally or morally defensible or that it makes our nation safer. It is my hope that, under your leadership, the Department of Justice will take a fresh look at the CIA’s program, and that you will urge the President not to veto legislation that would end the use of so-called "alternative interrogation techniques." I request that you provide current and any past Department legal analyses to Congress, and that you provide your views on the program to Congress at the earliest possible date.

That said, I think this is good politics. It takes the pressure caused by the news of the torture tape destruction and ratchets it up another level. All, hopefully, to force Bush to accept restrictions against torture.