Balkinization  

Sunday, October 14, 2007

It’s the Secrecy, Stupid: Why the FISA Immunity Debate is Important

JB

The Bush Administration has announced that the most important feature of any amendments to the Foreign Intelligence Surveillance Act will be retroactive immunity for telecommunications companies that cooperated with the Administration in its domestic surveillance programs. Indeed, the President has threatened to veto any bill that does not contain a blanket immunity. Why is this immunity so important to the Administration, and what does it tell us about the real issues in the debate over foreign intelligence surveillance, and indeed, the debate over Presidential power generally?

The argument for immunity for telecom companies is straightforward. The President– backed up by Justice Department opinions– told the telecom companies that the NSA domestic surveillance programs were perfectly legal and appealed to their patriotism to induce them to cooperate. The telecom companies acted in reliance on those representations. If Congress does not provide retroactive immunity, telecom companies will be reluctant to cooperate in the future with legally controversial programs. Because public-private coordination is essential to the government’s practices in the emerging National Surveillance State, this will cripple the government’s efforts to fight terrorism and engage in effective law enforcement. Moreover, Congress already granted immunity from violations of the War Crimes Act and the anti-torture statute in the Detainee Treatment Act and Military Commissions Acts. Aren’t war crimes, torture and cruel, inhuman and degrading treatment more serious offenses than domestic surveillance? Therefore shouldn’t Congress also forgive these potential violations of law?

The argument against immunity is that the telecom companies were also represented by high priced counsel and they could determine for themselves whether the program was legal. If they believed it to be legally dicey, they should have hesitated without legislative or judicial authorization. If Presidents can go to any private company and encourage them to violate the law and then get retroactive immunity for the violation, this will undermine the separation of powers. Presidents will be encouraged to violate all sorts of laws-- even laws like FISA that are carefully crafted to constrain executive action-- secure in the knowledge that they can always get Congress to clean up their mess later on. The Detainee Treatment Act and the Military Commissions Act are not precedents for even more immunities; they are bad precedents that show that Congress is all too willing to immunize even the worst offenses-- including war crimes-- as soon as the President says the magic words “terrorism” and “national security.” Many Congressmen and Senators have been outraged by the Yoo-Bybee Article II argument that contends that the President need not obey any Congressional laws that he believes limit his Commander-in-Chief powers, effectively giving the President carte blanche to violate law in secret as he sees fit. But if Congress gives the President and those who cooperate with the President retroactive immunity every time he breaks the law, this in effect vindicates the Yoo-Bybee theory. Even worse, it gives the President the blessing of Congress for doing so. With Congressional immunity, he has no pressure to prosecute private companies who cooperate with his prior illegal activities. And if Congress is willing to say retroactively that their acts were justifiable, he has even less reason to prosecute his own subordinates for following his orders.

There is an equally important structural feature that is likely to be neglected in these debates. It’s not just the illegal surveillance. It’s the secrecy, stupid. The President’s strategy throughout his Administration, but particularly since his approval ratings crashed, has been to try to keep everything his Administration does secret in order to avoid accountability and oversight. Take the state secrets doctrine as one example. This doctrine was invoked sparingly in the last fifty years of the National Security State. The Bush Administration has begun to invoke it routinely, arguing that nothing it does can ever be examined by courts on grounds of national security. Similarly, this Administration has invoked executive privilege early and often to prevent Congressional oversight and investigation.

What does this have to do with immunity for private companies? Simple. The President can use his pardon power to immunize subordinates and private companies from criminal prosecutions. But the pardon power does not allow him to nullify private suits against telephone companies. Moreover, using the pardon power in the midst of the debate on FISA would inflame public opinion and embolden Congress on many other fronts. Instead, the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law. (Recall George H.W. Bush's pardons of the Iran-Contra conspirators, which effectively ended further judicial inquiries into that national scandal.).

We should understand the recent revelations by a Qwest executive, Joseph Nacchio, who is under prosecution for insider trading violations in this light. Because Nacchio now faces significant penalties, he has every incentive to provide embarrassing information about the White House in the hopes of shoring up his defense. This case involved a telecom company that refused to participate in the NSA program. The White House is understandably concerned that civil suits against corporate officials who did participate will produce even more embarrassing revelations.

The Democrats have argued that it is premature to offer retroactive immunity for telecom companies until the White House turns over documents describing the nature of the government’s surveillance practices from 9/11 onward. (Indeed, if Nacchio's story is to be believed, some of these practices actually began prior to 9/11). The President has refused to provide any documents and has threatened to veto any legislation that does not contain retroactive immunity. It should now be clear why this provision is so important for an Administration that has regularly flouted the laws and seeks to avoid any future accountability for doing so.

The Democrats are right to use the debate over the new FISA bill to engage in oversight and investigation. However, they should also recognize that the Administration will do everything in its power to avoid ever being held to account for its illegal activities. Moreover, once Congress passes retroactive immunity legislation, the Administration has no incentives to offer any more information. And this Administration has demonstrated repeatedly (for example, with Torture Memos 2.0 and 3.0) that they will read new laws restricting their power as if nothing has changed. Whatever Congress passes, they should assume the Administration will do its best to undermine.

For this reason, Congress must build structures of oversight, reporting, and auditing into the new version of FISA, designing them so that if the Administration tries to avoid compliance– as it inevitably will-- this becomes easy to spot and easy to publicize. They must also restore the FISA exclusivity provision so that the Administration will have a harder time rearticulating the theory that it may act outside of FISA because of the September 18, 2001 Authorization of the Use of Military Force. Indeed, Congress should specifically state in the new legislation that nothing in the AUMF authorizes the President to engage in foreign intelligence surveillance that is contrary to the provisions of FISA. And Congress should limit the use of the state secrets privilege in litigation arising out of FISA.

The Bush Administration has claimed that everything it has done in the past seven years is legal. On the pages of this blog in the past five years we have tried repeatedly to show that this is not true, and that in fact that the Bush Administration has repeatedly broken the laws and tried to cover things up. Congress must understand that is it not dealing with an Administration that tries to play fair when it comes to respect for the rule of law. That is not meant to impugn the many fine lawyers at the Justice Department who have tried to do their jobs honorably under increasingly difficult conditions. Rather, my point is that at the top ranks of this Administration is a cabal of people who think that rules are made to be broken, or at the very least bent into unrecognizable shapes. Unfortunately they have been enabled by a handful of very bright and ambitious young lawyers who have combined sycophancy to power with ideological zeal. If this were a Mafia movie, we would call these practices an ongoing criminal conspiracy. Given the systemic nature of the lawbreaking, a RICO action might be appropriate. But this is no episode of the Sopranos. These people run the government of the United States, and they really don’t care much what the law says.

Comments:

George W might use the pardon power to veto, as a practical matter, a failure of Congress to include retroactive immunity.
 

Professor Balkin:

The argument for immunity for telecom companies is straightforward. The President– backed up by Justice Department opinions– told the telecom companies that the NSA domestic surveillance programs were perfectly legal and appealed to their patriotism to induce them to cooperate. The telecom companies acted in reliance on those representations. If Congress does not provide retroactive immunity, telecom companies will be reluctant to cooperate in the future with legally controversial programs. Because public-private coordination is essential to the government’s practices in the emerging National Surveillance State, this will cripple the government’s efforts to fight terrorism and engage in effective law enforcement. Moreover, Congress already granted immunity from violations of the War Crimes Act and the anti-torture statute in the Detainee Treatment Act and Military Commissions Acts. Aren’t war crimes, torture and cruel, inhuman and degrading treatment more serious offenses than domestic surveillance? Therefore shouldn’t Congress also forgive these potential violations of law?

I believe the last element of the argument has nothing to do with interrogation methods. Rather, the argument is that Congress' last FISA reform legislation ratified the TSP as it existed since its inception. Therefore, the legislative protection the telecoms enjoy now should also be retroactive to the inception of the TSP.

The argument against immunity is that the telecom companies were also represented by high priced counsel and they could determine for themselves whether the program was legal...

Many Congressmen and Senators have been outraged by the Yoo-Bybee Article II argument that contends that the President need not obey any Congressional laws that he believes limit his Commander-in-Chief powers, effectively giving the President carte blanche to violate law in secret as he sees fit. But if Congress gives the President and those who cooperate with the President retroactive immunity every time he breaks the law, this in effect vindicates the Yoo-Bybee theory.


Immunity has nothing to do with whether the TSP was legal or not.

Indeed, Congress has essentially conceded the fact that it does not have an Article I authority to limit the President's Article II power to determine the targets of foreign intelligence gathering by gutting FISA and ratifying the TSP.

Rather, the purpose of immunity is to stop years worth of costly litigation and fishing expeditions into top secret government or company records before it begins.

It is unlikely that ACLU & Co. will be any more successful than they have been to date because they do not have the evidence to prove standing and cannot conduct discovery under the state secrets privilege. However, that will not prevent them from continuing this frivolous litigation for several more years in an attempt to punish the telecoms for assisting NSA.

(Indeed, if Nacchio's story is to be believed, some of these practices actually began prior to 9/11).

That was an interesting story. Nacchio claims that Verizon was approached by NSA a few weeks after the new Bush Administration came to power and had a chance to appoint anyone to run NSA. This suggests that the idea for the TSP as an tool against al Qaeda extended back into the Clinton Administration. Too bad the NSA had not implemented the TSP at that time. If it had, chances are excellent that the Atta cell would have been discovered and captured prior to 9/11.

The Democrats have argued that it is premature to offer retroactive immunity for telecom companies until the White House turns over documents describing the nature of the government’s surveillance practices from 9/11 onward.

In fact, the Intelligence Committees have been fully briefed. This complaint is by Dems from other committees who are pissed that they do not have clearance for these briefings.

The Democrats are right to use the debate over the new FISA bill to engage in oversight and investigation.

The Dems do not have a majority to re-implement your suggested 70s era legislation. The GOP is nearly united against any such encroachment and the newly elected moderate Dems do not want to be tossed out of office in their Red districts by voting to blind the NSA at a time of war.

The President will get nearly everything he demanded by next Spring.
 

When executive branch secrecy - however "justified" - prevents Congress and the courts from performing their oversight and balancing functions under the Constitution, the secrecy itself should be seen as the impeachable offense of subverting the Constitution. Democrats have been reluctant to consider impeachment, for a host of good reasons, not the least of which are that (i) removing Bush without removing Cheney would only make matters worse, but elevating Nancy Pelosi to the White House would smack of a political coup, and (ii) no one wants to tie up Congress with lengthy impeachment hearings and trials.

But suppose the Democratically controlled House - unconstrained as it is by filibuster or veto - were to pass a resolution stating that the President shall, upon pain of impeachment for subverting the Constitution, produce such-and-such documents to Congress by Date X, together with (for good measure) a list of all statutory provisions that the "unitary executive" is violating, not enforcing or otherwise ignoring, for whatever reason.

Since Bush (and in his turn, Cheney) would have the means to cure their subversions of the Constitution - by producing the demanded information - the appearance of a coup would be mitigated. And the Administration - with its record of debacle after debacle in the unconstrained use of executive power - would have a hard time explaining why "trust us" is even a good idea, let alone a necessary one. By focusing on whether or not a production deadline had been met, there would be no need for lengthy hearings or trials in Congress. The factual predicate would be undeniable, and the only question for the Senate would be a question of law - whether the Administration's known record of stonewalling has so incapacitated the Congress from performing its Constitutional duties that Bush and Cheney should be removed from office.

Why undertake all this so near to the end of the Bush/Cheney terms? Because inaction validates their secretiveness, yes, but also because, underlying all administration stonewalling is an assertion that Congress is not entitled to the information it demands because it has no say in the matters it seeks to investigate. That is the unstated corollary to administration intransigence; and that whole line of Constitutional theorizing - poised as it is to become the majority view on the Supreme Court - needs to be aired, and purged, in the coming presidential election.
 

Unlike Scooter Libby, the president cannot pardon companies, but if Bush doesn't get what he wants here, maybe he'll try that anyway. If corporations are persons, can't they be pardoned? Maybe the civil suit is the problem?
 

The Administration just ratcheted up the pressure on Congress again by leaking the timeline the DNI provided Congress detailing the nearly 10 hour delay in using the TSP to track the al Qaeda terrorists who kidnapped three of our soldiers in Iraq while the DOJ attorneys drafted up probable cause for FISA warrants and hunted down a FISA judge to approve them.

Is this any way to fight a war?
 

Aren't you allowed to get FISA warrants 72 hours after the search in question?
 

Prof. Balkin:

Take the state secrets doctrine as one example. This doctrine was invoked sparingly in the last fifty years of the National Security State. The Bush Administration has begun to invoke it routinely, arguing that nothing it does can ever be examined by courts on grounds of national security.

I think you'll find a strong positive correlation between invocation of a "state secrets privilege" by the executive against a challenge or inquiry, and the level of illegal gummint conduct.

It's not so much that Dubya likes the "state secrets" privilege as that he needs it....

My further thoughts here (scroll down).

Cheers,
 

anderson:

Aren't you allowed to get FISA warrants 72 hours after the search in question?

DoJ would not agree to the emergency authorization by the AG until they had probable cause because they must justify the emergency authorization later to the FISC.

The real question is why DoJ and any court is involved with foreign intelligence gathering in the first instance.
 

Prof. Balkin:

What does this have to do with immunity for private companies? Simple. The President can use his pardon power to immunize subordinates and private companies from criminal prosecutions.

Pardons do not pertain to civil actions, and these are perhaps more frightening to the telcos, given the statutory penalty on a per-violation basis.

Cheers,
 

arne langsetmo said...

I think you'll find a strong positive correlation between invocation of a "state secrets privilege" by the executive against a challenge or inquiry, and the level of illegal gummint conduct.

"Illegal" has nothing to do with it.

The government only needs to use the state secrets privilege when a civilian plaintiff attempts to discover top secret materials for which he or she does not have clearance.

There is no state secrets privilege in a criminal investigation and there are no criminal investigations of the TSP by Congress or DoJ because there are no crimes.
 

Prof. Balkin:

We should understand the recent revelations by a Qwest executive, Joseph Nacchio, who is under prosecution for insider trading violations in this light. Because Nacchio now faces significant penalties, he has every incentive to provide embarrassing information about the White House in the hopes of shoring up his defense. This case involved a telecom company that refused to participate in the NSA program. The White House is understandably concerned that civil suits against corporate officials who did participate will produce even more embarrassing revelations.

This brings up an interesting situation. While one is entitled to all records in a civil case (no "pleading the Fifth") and winning such a case is less difficult (no "beyond reasonable doubt"), the "state secrets" provision can be used to effectively stymie such a civil case. However... A criminal case involves more of a substantial interest in access to all materials necessary for a defence, and even the Reynolds case acknoweldges that a "states secret" privilege may not apply in a criminal prosecution (or that the defendant must be let free) [Id at 12]. Which may be what Nacchio's awyers are angling for....

Cheers,
 

"Bart" DePalma:

Rather, the argument is that Congress' last FISA reform legislation ratified the TSP as it existed since its inception. Therefore, the legislative protection the telecoms enjoy now should also be retroactive to the inception of the TSP.

This can't be true. The law is "sunsetted", so it obviously doesn't apply for all time.

Not only that, but if "Bart"'s thesis here were true, there wouldn't be any need for amending it with retroactive immunity.

Cheers,
 

The government only needs to use the state secrets privilege when a civilian plaintiff attempts to discover top secret materials for which he or she does not have clearance.

# posted by Bart DePalma : 2:32 PM


That simply is not true.

http://www.boston.com/news/globe/editorial_opinion/letters/articles/2007/10/11/dirty_little_secret_of_state_secrets_privilege/


"...traces the origin of "state secrets" privilege to a 1953 Supreme Court ruling in a case brought by widows of three civilians who died in the crash of a military aircraft. In seeking compensation, the widows were denied access to accident reports on the grounds that the plane had carried equipment that needed to be kept secret in the interests of national security.

In 2000, when accident reports relating to that crash were declassified, there was no mention of any secret electronic equipment or sensitive mission. But there was ample evidence that the military's failure to do proper maintenance caused the crash."

 

"Bart" DePalma:

The Administration just ratcheted up the pressure on Congress again by leaking the timeline the DNI provided Congress detailing the nearly 10 hour delay in using the TSP to track the al Qaeda terrorists who kidnapped three of our soldiers in Iraq while the DOJ attorneys drafted up probable cause for FISA warrants and hunted down a FISA judge to approve them.

Even the 1978 FISA law allowed for 72 hours emergency surveillance. This is pure maladministration hogwash/persiflage ... and as expected, "Bart" not only swallows it but flogs it. You'd think he'd be embarrassed but....

Cheers,
 

... the nearly 10 hour delay in using the TSP to track the al Qaeda terrorists who kidnapped three of our soldiers in Iraq while the DOJ attorneys drafted up probable cause for FISA warrants and hunted down a FISA judge to approve them.

And of course this was for warrants to tap the U.S.-based al Qaeda spymasters and ring-leaders as they transmitted information from the U.S. to the Terra-ists on the ground in Iraq ... because if it was just Iraqi traffic, then FISA wouldn't even apply....

Cheers,
 

And of course this was for warrants to tap the U.S.-based al Qaeda spymasters and ring-leaders as they transmitted information from the U.S. to the Terra-ists on the ground in Iraq ... because if it was just Iraqi traffic, then FISA wouldn't even apply....

That's what I don't get. Since these were foreign-to-foreign transmissions (and in a war zone, no less), I don't see why FISA would apply at all, or why any sort of warrant would be required.
 

[anderson]: Aren't you allowed to get FISA warrants 72 hours after the search in question?

["Bart"]: DoJ would not agree to the emergency authorization by the AG until they had probable cause because they must justify the emergency authorization later to the FISC.


Are you saying, "Bart", that AGAG thought he didn't have enough to get a FISA warrant in this situation?!?!?

That ain't the fault of Congress ... good thing we're rid of the incompetent.

Cheers,
 

[Arne]: I think you'll find a strong positive correlation between invocation of a "state secrets privilege" by the executive against a challenge or inquiry, and the level of illegal gummint conduct.

["Bart"]: "Illegal" has nothing to do with it.


It shouldn't. Nevertheless, I say it does.

The government only needs to use the state secrets privilege when a civilian plaintiff attempts to discover top secret materials for which he or she does not have clearance.

True. But the facts are otherwise. One fault of the Reynolnds doctrine is that the department with the main role of determining whether the subject matter is "secret" and thus privileged is the very same organisation that, should it be violating the law and/or tortiously injuring people, would want to cover such up. And if the actions at base are criminal or illegal, these people are hardly above "bending" other laws (such as the secrecy laws) to their own personal benefit.

Cheers,
 

More on the N.Y. Post RNC "spin point" here:

McConnell told the committee today that restrictions derived by the FISA Court this year on wiretapping foreign-to-foreign communications that pass through the U.S. prevented the NSA from surveilling Iraqi insurgents who had kidnapped U.S. soldiers for 12 hours. But the source, who is privvy to the timeline of the incident, says "internal bureaucratic wrangling," and not court-based restrictions, were responsible for the lag time. "To get an emergency warrant, you just have to believe the facts support the application that someone is an agent of a foreign power," the source says. "That takes approximately five seconds to establish if you're going after an Iraqi insurgent."

Why did so much time elapse before the surveillance? Top Justice Department officials needed to approve the emergency order. But according to the source, Attorney General Alberto Gonzales was out of town; Deputy AG Paul McNulty had resigned already; Solicitor General Paul Clement "had left the building"; and the other responsible official, Assistant Attorney General Kenneth Wainstein was not yet authorized to approve the emergency order. Wainstein testified today, but demurred from answering questions about the incident in open session.


Cheers,
 

Bartbuster said...

BD: The government only needs to use the state secrets privilege when a civilian plaintiff attempts to discover top secret materials for which he or she does not have clearance.

That simply is not true.

"...traces the origin of "state secrets" privilege to a 1953 Supreme Court ruling in a case brought by widows of three civilians who died in the crash of a military aircraft. In seeking compensation, the widows were denied access to accident reports on the grounds that the plane had carried equipment that needed to be kept secret in the interests of national security."


Try reading your own cut and paste.

The 1953 Supreme Court ruling concerned a civil lawsuit for money damages against the government. Some or all of the evidence being sought in discovery was classified. Thus, the state secrets privilege.
 

Some or all of the evidence being sought in discovery was classified.
# posted by Bart DePalma : 4:08 PM


No, there wasn't any classified evidence being sought. That was the entire point of the article, you imbecile.
 

In 2000, when accident reports relating to that crash were declassified, there was no mention of any secret electronic equipment or sensitive mission. But there was ample evidence that the military's failure to do proper maintenance caused the crash."
 

Arne Langsetmo said...

"Bart" DePalma:Rather, the argument is that Congress' last FISA reform legislation ratified the TSP as it existed since its inception. Therefore, the legislative protection the telecoms enjoy now should also be retroactive to the inception of the TSP.

This can't be true. The law is "sunsetted", so it obviously doesn't apply for all time.


Huh? The comparison to which I am referring is within the new FISA reform legislation without sunset provisions. This is one of the primary arguments being used right now in Congress by the GOP members and some of the Blue Dogs.

[anderson]: Aren't you allowed to get FISA warrants 72 hours after the search in question?

["Bart"]: DoJ would not agree to the emergency authorization by the AG until they had probable cause because they must justify the emergency authorization later to the FISC.

Are you saying, "Bart", that AGAG thought he didn't have enough to get a FISA warrant in this situation?!?!? That ain't the fault of Congress ... good thing we're rid of the incompetent.


FISA requires individualized probable cause, which as I have pointed out repeatedly, is nearly impossible to obtain before the fact because the TSP is used to obtain such probable cause.

Since you believe that the DoJ are incompetent lawyers, why don't you draw on all that law school experience of yours to draft me up an affidavit establishing individualized probable cause under these facts.

This should be amusing.
 

Bartbuster said...

In 2000, when accident reports relating to that crash were declassified, there was no mention of any secret electronic equipment or sensitive mission. But there was ample evidence that the military's failure to do proper maintenance caused the crash."

No, there wasn't any classified evidence being sought. That was the entire point of the article, you imbecile.


The privilege was granted on the allegation that the reports contained descriptions of classified equipment.

An internal Air Force accident report is hardly likely to identify the equipment which is classified because the consumers of the report all have clearance to know about the equipment.

Even assuming that the Air Force lied about the report containing classified information, the privilege was granted on the assumption that civilians were requesting classified materials.

If you still do not get it, go talk to arne.
 

the privilege was granted on the assumption that civilians were requesting classified materials.

If you still do not get it, go talk to arne.

# posted by Bart DePalma : 4:24 PM


Dumbfuck, there were no classified materials. The Air Force LIED to cover up negligence. What part of that are you having so much trouble understanding?
 

["Bart"]: Rather, the argument is that Congress' last FISA reform legislation ratified the TSP as it existed since its inception. Therefore, the legislative protection the telecoms enjoy now should also be retroactive to the inception of the TSP.

[Arne]: This can't be true. The law is "sunsetted", so it obviously doesn't apply for all time.

Huh? The comparison to which I am referring is within the new FISA reform legislation without sunset provisions.


Read your own quote, "Bart". Do pay attention to the bolded part. If you're talking about a law that doesn't exist, go do it on your own log.

FWIW, though, the PAA doesn't "ratif[y] the TSP as it existed since its inception."

Cheers,
 

"Bart" DePalma:

["Bart"]: DoJ would not agree to the emergency authorization by the AG until they had probable cause because they must justify the emergency authorization later to the FISC.

[Arne]: Are you saying, "Bart", that AGAG thought he didn't have enough to get a FISA warrant in this situation?!?!? That ain't the fault of Congress ... good thing we're rid of the incompetent.

FISA requires individualized probable cause, which as I have pointed out repeatedly, is nearly impossible to obtain before the fact because the TSP is used to obtain such probable cause.


You're just making stuff up. See above.

I'd note that this claim that "FISA [warrants are] nearly impossible to obtain" is based on facts that exist only on the planet Uranus. Here on Earth, thousands of FISA warrants have been obtained, and only a handful modified or turned down. Once again, if you want to 'discuss' these specifics, please do so on your own blog.

Cheers,
 

"Bart" DePalma:

Even assuming that the Air Force lied about the report containing classified information, the privilege was granted on the assumption that civilians were requesting classified materials.

If you still do not get it, go talk to arne.


When you're right, you're right, "Bart". I got it. The point is that the gummint lies its fool head off to protect itself from embarrassment (or worse). I must admit that you're quite honest to refer BartBuster to me (although he's certainly in no need of such advice), because you clearly aren't "getting it".....

Cheers,
 

Arne Langsetmo said...

Read your own quote, "Bart". Do pay attention to the bolded part. If you're talking about a law that doesn't exist, go do it on your own log.

Touche. I should not have referred to the last FISA reform because the argument being used by the GOP is based on the current bill. I stand corrected.

I'd note that this claim that "FISA [warrants are] nearly impossible to obtain" is based on facts that exist only on the planet Uranus. Here on Earth, thousands of FISA warrants have been obtained, and only a handful modified or turned down.

DoJ uses and abuses FISA warrants for anything which touches upon classified national security matters, not just the TSP.

Indeed, the TSP was not placed under the supervision of the FISC until the FISC agreed to essentially waive the individualized probable cause required under language of FISA.

When a subsequent FISC judge reneged on that agreement, TSP production plunged by 75% because Justice could not (as you could not) come up with individualized probable cause.

TSP production did not return to normal until the last FISA reform essentially took the TSP out of the statute.

If you had ever drafted warrants, the difficulty in providing individualized probable cause in cases where you only have a telephone number with no real idea who will be using the number and for what purposes will become readily apparent.

The same problems will arise under the Dems' suggestion to require warrants for foreign targets who are calling a US person, but not when they call other foreign persons, because there is no way of knowing who the foreign target might decide to call. The rule would swallow the exception and again require warrants for all TSP surveillance and again hamstring the program.

If you still do not get it, go talk to arne.

When you're right, you're right, "Bart". I got it. The point is that the gummint lies its fool head off to protect itself from embarrassment (or worse). I must admit that you're quite honest to refer BartBuster to me (although he's certainly in no need of such advice), because you clearly aren't "getting it".....


To get around government lying, the plaintiffs need to move the court to review the documents in camera with the government and have the government demonstrate the classification to the court. I believe that Justice has recommended or done just that in some of these cases.
 

I believe that Justice has recommended or done just that in some of these cases.

# posted by Bart DePalma : 5:09 PM


Read the article I posted, you imbecile. There were no classified documents and there was no "review".
 

"Bart" DePalma:

Indeed, the TSP was not placed under the supervision of the FISC until the FISC agreed to essentially waive the individualized probable cause required under language of FISA.

When a subsequent FISC judge reneged on that agreement, TSP production plunged by 75% because Justice could not (as you could not) come up with individualized probable cause.

TSP production did not return to normal until the last FISA reform essentially took the TSP out of the statute.


Objection, Your Honour: Assumes facts not in evidence.

But WTF that has to do with tapping Iraqi terrorists/insurgents is beyond me....

FWIW, I don't think that even months after the disaster, the maladministration has managed to bring the perps to justice. Maybe we ought to give 'em a head-start of not ten days but ten years, eh?

Cheers,
 

"Bart" DePalma:

The same problems will arise under the Dems' suggestion to require warrants for foreign targets who are calling a US person, but not when they call other foreign persons, because there is no way of knowing who the foreign target might decide to call....

Oh, I dunno. You might look for the "+1..." in the CldPA....

Cheers,
 

bartbuster:

["Bart"]: I believe that Justice has recommended or done just that in some of these cases.

Read the article I posted, you imbecile. There were no classified documents and there was no "review".


I think that the deliberately obtuse "Bart" is concentrating on the factual matter of the information sought being "classified". But that just lets the gummint "classify" anything that might be embarrassing. What is needed is judicial scrutiny of whether the information is proerly classified, and in that, the judiciary is supposed do give great deference to the determination of the executive, who's supposedly privy to all the various differen nuances of intelligence operations and the manifold hush-hush, Top-Secry things that might be compromised by examination in camera, as well as being all-round Smarter Than The Judiciary and thus better able to figger out if the classification is appropriate. Thus, on pretty much the gummint's word, the stuff is a "state secret", and no more inquiry is done. Of course, that assumes a reasonably honest and competent administration that actually has the nation's well-being (rather than looting the treasury on behalf of their fat-cat friends and amassing power) in mind; one that would actally do this classification on basis of need rather than on the basis of coverin gtheir own incompetent and criminal behinds. IOW, they're not supposed to cover up criminal or incompetent behaviour of little guys (but see Reynolds for a refutation of that). But when they guys on top are the crooks, this whole scheme falls apart (see, e.g., Nixon, where the court slapped the putz silly), and then it's obvious the courts have to step in and take a closer look....

Cheers,
 

Arne Langsetmo said...

"Bart" DePalma: Indeed, the TSP was not placed under the supervision of the FISC until the FISC agreed to essentially waive the individualized probable cause required under language of FISA. When a subsequent FISC judge reneged on that agreement, TSP production plunged by 75% because Justice could not (as you could not) come up with individualized probable cause. TSP production did not return to normal until the last FISA reform essentially took the TSP out of the statute.

Objection, Your Honour: Assumes facts not in evidence.


C'mon arne, I assume you keep up with current events including the testimony of the DNI to Congress.

But WTF that has to do with tapping Iraqi terrorists/insurgents is beyond me....

The TSP monitors international telecommunications nodes located in the United States, through which can flow calls originating in Iraq to another location in Iraq, a third country or the United States.

FWIW, I don't think that even months after the disaster, the maladministration has managed to bring the perps to justice. Maybe we ought to give 'em a head-start of not ten days but ten years, eh?

This is not a criminal justice matter. The military in Iraq takes care of its own.

I believe I posted this story on this blog some weeks ago, but the military hunted down and killed the Tunisian al Qaeda leader, Abu Osama al-Tunisi, responsible for the kidnapping, torture and murders of two other soldiers kidnapped earlier.

Al Tunisi's al Qaeda gang's area of operations south of Baghdad also included the town of Mahmoudiya, from which Jiminez was kidnapped. Consequently, chances are al Tunisi was also responsible for Jiminez's murder.

And yes, the military summarily killed this SOB with extreme prejudice without the benefit of a trial or even an combatant status hearing. Good riddens to extremely bad garbage.
 

"Bart" DePalma:

C'mon arne, I assume you keep up with current events including the testimony of the DNI to Congress.

Yeah. Of course. Like this.

But feel free to point out any source you think is trustworthy on these points, along with what they said. Say, BTW, are you in the market for a bridge? Cuz' we have a nice one here that just doesn't fit the new decor, fersale cheap....

Cheers,
 

"Bart" DePalma:

The TSP monitors international telecommunications nodes located in the United States, through which can flow calls originating in Iraq to another location in Iraq, a third country or the United States....

You seem to know a lot about this stuff. Are they going to have to kill you for spilling the beans?

I believe I posted this story on this blog some weeks ago, but the military hunted down and killed the Tunisian al Qaeda leader, Abu Osama al-Tunisi, responsible for the kidnapping, torture and murders of two other soldiers kidnapped earlier.

How convenient: "Sentence first -- verdict afterwards." You do know where that comes from, don't you?

Cheers,
 

Today, the House GOP was set to offer a motion to recommit the Dem FISA bill compelling the originating committee to add the following language, stating nothing in FISA "shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization...from attacking the United States or any United States person."

In essence, the new language identifies the targets of the TSP to make it clear to voters who the Dem bill would be protecting and it again removes the TSP and similar foreign intelligence gathering from FISA.

Faced with the defection of all those Blue Dog Dems who face far from sure reelection battles in Red districts and who were ready to vote for the GOP language, the Dem leadership pulled their FISA bill.

By Christmas, look for FISA to die the ignominious death of a really bad idea at the hands of a Dem Congress who has to answer to a center-right electorate.
 

"Bart" DePalma:

Today, the House GOP was set to offer a motion to recommit the Dem FISA bill compelling the originating committee to add the following language, stating nothing in FISA "shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization...from attacking the United States or any United States person."

In essence, the new language identifies the targets of the TSP to make it clear to voters who the Dem bill would be protecting and it again removes the TSP and similar foreign intelligence gathering from FISA.


Political theatre, of course. Blatant plitical theatre.

FWIW, the "new language" does not do any such thing. It is a "get out of jail free" card, saying that FISA applies except where the preznit and his consiglieres says it doesn't apply.

As "Bart" likes to point out, the "targets of the TSP" are whoever the preznit decides are the targets. Surely "Bart" here can't be arguing for an 'interpretation' that says that the lowly Congress can specify who the preznit can wiretap and under what circumstances?!?!? Why, that would be "directing surveillances!!!" Alors!

Cheers,
 

"Bart" DePalma:

By Christmas, look for FISA to die the ignominious death of a really bad idea at the hands of a Dem Congress who has to answer to a center-right electorate.

And Santa Claus too. He "knows if you've been bad or good...."

It is the PAA that is set to expire, not FISA, FWIW.

Cheers,
 

The WP is reporting that the Senate Dems surrendered yesterday and agreed with the Bush Administration to reduce the FISC's role to a review of NSA procedures and to grant full retroactive immunity to the telecoms.

I expect a similar surrender from the House Dems in the next month.

The fact is that the Dems simply do not have majorities in either House to reinstall FISA's blinders on the NSA during a war.
 

You will all be happy to know, especially Bart's annoying ass- that at least one Dem Senator has grown a spine - his name is Chris Dodd. His manuever - a "hold" on the Senate bill with retroactive immunity.

This is a start in the right direction. Let's hope that other Senators follow Dodd's lead. The good professor is quite right - it is the secrecy stupid. If the violations are as numerous as suspected, i.e, tens of millions, then the civil liability would be something even the largest companies would fight tooth and nail to avoid.

The American people wont fall for the selective leaks - no doubt meant as pure political propaganda - to undermine our rights and sanction illegal behavior any more; like this non story about a 10 hr delay to help find kidnapped soldiers!

Dodd will see an increase in campaign funding because of his move and hopefully, others will see the benefits of standing up for the rule of law and the bill of rights. Nobody trusts this administration and nobody buys the claims of anybody who says 1) ive done nothing wrong and 2) i need immunity.

The immunity is essential precisely because everybody knows once this administration is gone, the next President is going to investigate what happened and uncover some semblance of truth, which I suspect will ratify the suspicions we all share.

And i do believe the Qwest guy, he tried to present this defense that is the subject of his appeal at his trial but was stymied by the Judge from introducing evidence because of its classified nature/relevance to insider trading. And I think we will also find out that it started well before the terrorist attacks - and soon after this administration came to power.

Please thank Sen. Dodd for standing by his word and doing everything in his power to prevent any FISA bill with immunity from being passed. He deserves a well deserved pat on the back.
 

Post a Comment

Home