Accountability, Oversight, Rule of Law

SENATORS INTRODUCE PATRIOT ACT FIXES TO SAFEGUARD AMERICANS' RIGHTS

JUSTICE Act, Introduced on Constitution Day 2009, Would Fix Long Standing Problems with the PATRIOT Act and Other Surveillance Laws

From the press release via Russ Feingold's office:

Washington, D.C. – U.S. Senators Russ Feingold (D-WI), Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR) have introduced legislation to fix problems with surveillance laws that threaten the rights and liberties of American citizens. The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect Americans’ constitutional rights, while preserving the powers of our government to fight terrorism.

The JUSTICE Act reforms include more effective checks on government searches of Americans’ personal records, the “sneak and peek” search provision of the PATRIOT Act, “John Doe” roving wiretaps and other overbroad authorities. The bill will also reform the FISA Amendments Act, passed last year, by repealing the retroactive immunity provision, preventing “bulk collection” of the contents of Americans’ international communications, and prohibiting “reverse targeting” of innocent Americans. And the bill enables better oversight of the use of National Security Letters (NSLs) after the Department of Justice Inspector General issued reports detailing the misuse and abuse of the NSLs. The Senate Judiciary Committee will hold a hearing on Wednesday, September 23rd, on reauthorization of the USA PATRIOT Act.

“Every single member of Congress wants to give our law enforcement and intelligence officials the tools they need to keep Americans safe,” said Feingold. “But with the PATRIOT Act up for reauthorization, we should take this opportunity to fix the flaws in our surveillance laws once and for all. The JUSTICE Act permits the government to conduct necessary surveillance, but within a framework of accountability and oversight. It ensures both that our government has the tools to keep us safe, and that the privacy and civil liberties of innocent Americans will be protected. When he was in the Senate, President Obama was a strong ally on these issues, and I look forward to working with his administration to find common ground on commonsense reforms.”

I am pleased that both New Mexico Senators were on board with this (Tom Udall and Jeff Bingaman). Props to all the Senators involved in this.

John Brennan's non-answer

Just because I have not posted much about FISA and warrantless wiretapping lately you surely have not concluded that it no longer matters or that I have forgotten.

John Brennan is a holdover of Bush's counterterrorism team now working for Obama. He speechified today and got asked a question.

You can read about Brennan's evasive response here. Emptywheel concludes:

Here, Brennan is suggesting either that the aspects of the program that have come out in the press aren't the aspects he was involved in, or that the reporting on it has been inaccurate. Or rather, "either" ... "and/or." No matter which conjunction you use, he's avoiding admitting he was involved in Bush's illegal surveillance program by simply claiming the parts he was involved in haven't been accurately portrayed, if they've been portrayed at all.

But worse than Gonzales, Brennan is making an appeal to following orders.

I fulfilled all my responsibilities at NCTC [National Counterterrorism Center] that I was asked to fulfill. ... And when I look back in terms of my service at the NCTC and those places I believe I fulfilled those responsibilities to the best of my abilities.

We don't really give a goddamn whether you fulfilled all the orders Dick Cheney gave you, Mr. Brennan. We want to know how many of those orders were illegal. How many of those orders did you know to be illegal?

Indeed.

--the BB

The issue has NOT gone away

I realize it has been a long time since I have posted much about warrantless wiretapping (or torture). Neither has had as much press of late though both remain very much on the radar.

Marcy Wheeler continues to do the most amazing work trying to sift through evidence, work through timelines, and connect the dots so the rest of us can understand what has happened and what is, or is not, being done about it.

This won't make sense if I don't cite a larger than usual chunk. If I am violating fair use, Marcy, tell me and I will whack this down to a link. My intent is to keep people alert and informed.

There were several things going on at once (see this post for more detail). There was some debate about the AUMF--but that got signed on September 18. There were initial discussions about the PATRIOT Act--including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that--Nancy Pelosi understood--was part of expanded NSA authorities. And--according to Barton Gellman--the warrantless wiretap program was approved on October 4, 2001, and it began on October 6, 2001.

In other words, the program was formally approved on the 16th day after the AUMF.

But at least according to Nancy Pelosi, Congress was briefed on ongoing underlying activities as early as October 1.

Meaning, the Bush Administration was already using those expanded authorities--but they were doing so by exploiting the 15-day exemption written into FISA!

So Yoo's analysis is not just dead wrong because FISA clearly contemplates its application even during wartime. But it's even worse because during this particular wartime situation, the Administration had already used that 15-day exemption period as it debated what and how to implement its warrantless wiretap program.

The Administration showed, by its actions, that it knew the AUMF didn't trump FISA. But then it proceeded to base its entire wiretap program on that very assumption.

[Emphasis mine]

You can see Marcy's documentation at emptywheel.

AUMF = Authorization to Use Military Force against Terrorists (September 18, 2001)
FISA = Foreign Intelligence Surveillance Act (October 25, 1978)
HPSCI = House Permanent Select Committee on Intelligence
USA PATRIOT Act: " The contrived acronym stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" (October 26, 2001)

Why is all this a big deal? Because it is patent that the Bush administration violated the Constitution with impunity.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

--the BB

Now the clean-up begins

Now that the two arch-criminals are gone (but not forgotten), tidbits are going to be coming out. Count on it.

Mcjoan opened with this paragraph yesterday evening:

Russell Tice, one of the NSA whistleblowers who exposed the NSA's warrantless wiretapping program, is speaking out now that the Bush administration is gone. On Countdown, Tice described, partially, the extent of the illegal wiretapping program.

She then goes on to share excerpts of the Tice interview with Olbermann and concludes:

We went into the fight over warrantless wiretapping and the FISA Amendments Act last year with far too little information. That was why we fought so hard against telco amnesty--because the legal fight against the telcos was one of the last avenues available, at the time, for finding out just what was going on with this program. With a new administration, we should have another avenue or two open up, in the form of our new Justice Department. ...

The questions we had then are now tripled: Who was targeted and why? When did this program begin? What exactly was behind the NSA's efforts to enlist Qwest in warrantless wiretaps in February, 2001--months before 9/11, and what other telcos did they approach at that time, and to what purpose? That's just scratching the surface of questions that need to be asked, and it's about fucking time we get some answers. And that the FISA Amendment Act that legalized so many of these abuses, including bulk collection of data, be repealed.

Yes.

Read it all here.
--the BB

Catapulting the propaganda - updated

Attorney General Michael Mukasey gave a speech to the Commonwealth Club this past weekend.

Officials "shouldn't need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that's the call that we may really want to know about. And before 9/11, that's the call that we didn't know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn't know precisely where it went."

The press played up how, at his following comments, the AG got all choked up. Let's skip the emotion, real of faked for effect, and focus on what he said.

If there was a call from an al Qaeda safe house in Afghanistan into the US prior to 9/11/2001, then the government did not need a warrant to listen in, according to then current law. So if they knew about such a call and did not act on it, the level of malfeasance is staggering.

If there was such a call, why was it not mentioned at any point in the 9/11 Commission's investigation? It such a call was not mentioned because it never really happened, this would be the worst sort of public lying to achieve a political goal.

Either of these options should be alarming.

And in any case, it hardly touches upon the issues that are actually relevant to FISA law.

But it clearly constitutes highly emotional fearmongering. And is highly misleading.

Again, did anyone in their right mind really believe he would not be a Bush toady once appointed as Attorney General?

To reiterate the issue, in Maddow's words:

MADDOW: The implication of Mukasey‘s story here is that these pesky, restrictive FISA laws kept us from tapping that call from Afghanistan and blocked us stopping 9/11. That‘s complete bull pucky. The laws then, the laws now, the laws since the FISA court has been in existence; the laws have said that you can tap without a warrant that kind of communication from outside the United States into the U.S., particularly if you knew it was an al Qaeda safe house and it had a link in terrorism.

What Mukasey said is either a terrible lie about the law or it‘s terrible admission about the Bush administration leaving us unprotected on 9/11.

Glenn Greenwald encapsulates it this way:

Mukasey's new claim that FISA's warrant requirements prevented discovery of the 9/11 attacks and caused the deaths of 3,000 Americans is disgusting and reckless, because it's all based on the lie that FISA required a warrant for targeting the "Afghan safe house." It just didn't. Nor does the House FISA bill require individual warrants when targeting a non-U.S. person outside the U.S.

Danger durden has a great post on this up at Daily Kos, including commentary on this issue by Keith Olbermann and Rachel Maddow. There is also information provided (including a very good form letter) for contacting the House Judiciary Committee, urging them to call AG Mukasey in to testify under oath on what he's talking about here.

Did the government have all the tools it needed and still do nothing?
Is the government making shit up to scare us?

The answer may well be "both of the above" but I think it is reasonable to demand answers.

UPDATE:
Glenn Greenwald follows up on this issue. Lee Hamilton, c0-chair of the 9/11 Commission would not comment but Philip Zelikow, the executive director of the commission, responded with this:

Not sure of course what the AG had in mind, although the most important signals intelligence leads related to our report -- that related to the Hazmi-Mihdhar issues of January 2000 or to al Qaeda activities or transits connected to Iran -- was not of this character. If, as he says, the USG didn't know where the call went in the US, neither did we. So unless we had some reason to link this information to the 9/11 story ....

In general, as with several covert action issues for instance, the Commission sought (and succeeded) in publishing details about sensitive intelligence matters where the details were material to the investigative mandate in our law.

Glenn comments:

That's polite Beltway talk for saying that nothing like what Mukasey described actually happened. Does anyone on TV other than Keith Olbermann care that the Attorney General of the United States just invented a critical episode about 9/11 that never actually happened -- tearing up as he did it -- in order to scare Americans into supporting the administration's desired elimination of spying restrictions and blame FISA supporters for the 9/11 attacks? We still ought to hear from Hamilton and/or Kean.

[Emphasis mine]

--the BB

Credibility at the highests levels: why we don't have it

Senator Feingold calls Mike McConnell to task:

Dear Director McConnell:

I have received a copy of your March 28, 2008, speech at Furman University. In it, you described Senate action on the FISA Amendments Act of 2008, stating:

"We had a bill go into the Senate. It was debated vigorously. There were some who said we shouldn't have an Intelligence Community. Some have that point of view. Some say the President of the United States violated the process, spied on Americans, should be impeached and should go to jail. I mean, this is democracy, you can say anything you want to say. That was the argument made. The vote was 68 to 29."

As you correctly noted, the bill was the subject of vigorous debate. Many members of the Senate expressed serious concerns about the lack of checks and balances included in the legislation and the potential impact of the new authorities on the privacy and civil liberties of Americans. Many Senators were also concerned that retroactive immunity for companies alleged to have cooperated with the President's warrantless wiretapping program would undermine the rule of law.

However, I am not aware of any Senator saying or suggesting that "we shouldn't have an Intelligence Community" or that President Bush "should be impeached and should go to jail." I would therefore appreciate your providing a list of all statements made by Senators during the debate that you believe support these assertions. If there are no such examples, you should issue an immediate correction and an apology.

While all sides of this debate deserve to be heard, to falsely attribute statements to United States Senators serves only to mislead the American people. It also undermines your credibility and that of the position of Director of National Intelligence.

Sincerely,

Russell D. Feingold
U.S. Senator

[Emphasis mine]

Yes, they're making shit up, as this administration has tended to do from the beginning, and spouting it out there for public consumption on the assumption, I am guessing, that no one will pay enough attention to verify whether they are lying or not.

Remember the old rule: If their lips are moving....

In the same speech, McConnell asserted that the Senate would agree with the White House. And why shouldn't he assume that? Unless they grow spines and uphold the rule of law. What a concept.

h/t to mcjoan, once again.
--the BB

You knew I wasn't going to let this drop

Warrantless wiretapping, retroactive immunity, Operation Total Information Awareness, passport file breaches, a toothless Oversight Operations Board stacked with cronies. Each a head on the monster that is the Bush administration's approach to intelligence, one in which political expediency trumps the Constitution every time. Trying to get a grasp on the magnitude of what we already know about the administration's efforts to break down the wall between foreign and domestic spying and to end all oversight of those activities either by Congress or the Judiciary is an enormous task.

--Mcjoan at Daily Kos


FISA and all the issues related to it have not gone away, nor will they. As the slogan goes: "Freedom Isn't Free." That means more than that some people risk, and sometimes love, their lives in its defense. It means none of us can take if for granted and we all need to do our part to preserve our constitutional government and the values on which the nations was founded. Part of that is debunking some of the values that folks would like to add to or substitute for our nation's values (such as crap that leads toward theocracy, just to name one that's a sore issue for me).

We the People must be vigilant, responsible, and outspoken if we want to maintain our freedoms.

Mcjoan, who has done so much to track the FISA debate, put up an article today that includes an interview with Sen. Ron Wyden of the Senate Intelligence Committee plus information on one the largest-scale poll on warrantless wiretapping so far.

Guess what?

Even after hearing the administration's arguments on not tying their hands,"62% say the government should have to get a warrant from a court before wiretapping Americans’ international conversations." It's not like the American people don't know that our legal system calls for warrants!

We need to keep up the pressure on Congress to stand firm for our Constitution. You CAN protect America AND follow the law.

Go read it all here.
--the BB

Compare and contrast

Sounds like one of those essay questions on a final, doesn't it?

This morning, for your entertainment and edification, we offer two videos. This first is a Republican effort using the imagery and style of the television series "24" that is every neocon's masturbatory fantasy--where laws can be bent in the name of a higher good and torture may be a necessary thing.



The next is an answering take-off on the first put together by Crooks and Liars:



Your task, should you choose to accept it, is to compare and contrast these messages. Explain which you are more inclined to believe, and why. Double-spaced, 14-pt, maximum two pages.

h/t to mcjoan at Daily Kos for the second video and Glenn Greenwald at Salon for the first one. Greenwald includes clips and season trailers from 24 so you can check out the inspiration.

If you are really inspired you may, for extra credit, compare and contrast what the White House says about the Protect America Act of 2007 and what the ACLU says about it. You may consult John Dean if you wish. Charlie Savage at the Boston Globe discussed it when it was passed.

This is an open-book test. Google away.

--the BB

The FISA battle continues

McJoan at Daily Kos lets us know that "AG Mukasey and DNI McConnell say the nation's security agencies have "lost intelligence" because Congressional Democrats haven't capitulated to Bush's will."

Cry me a flippin' river.

As mcjoan puts it so very clearly:

There's also a completely reasonable and simple solution to gain the telcos' cooperation even without amnesty: go the damned FISA court--which is still there, and not as busy as it used to be since they decided to bypass it--and get the damned warrants.

Harry Reid has this to add:

"But for the President, this debate isn’t about protecting America; it’s about protecting the telecommunications industry and his own Administration. He has explicitly refused to compromise on immunity for telecommunications companies even as he claimed the law’s expiration endangers Americans. I can only conclude, then, that the President would put Americans’ lives on the line to let phone companies off the hook. Democrats have different priorities."

[Emphasis either in the original or in mcjoan's posting thereof.]

Update:
In earlier post mcjoan gives us this quote from Bush:

Asked about a potential deal with Democrats, Bush said, "I would just tell you there's no compromise on whether these phone companies get liability protection."

"No compromise" is Bush-speak for "deal with Democrats."

Don't forget this reminder from mcjoan:

Let's just point out again that it was the Democrats who offered to extend the Protect America Act to "keep us safe," and Bush and the Republicans who forced that law to lapse.

Update 2:
Listen to the people:



h/t to Kagro X


--the BB

Your Tuesday update

Christy Hardin Smith reports on SCOTUS' rejection of a warrantless wiretapping challenge. You can read it all here. She notes the following:

This decision does not, however, negate the pending case(s) in San Francisco in which the EFF and ACLU, among others, represent the interests of plaintiffs who discovered their phones had been monitored through whistleblower information that the government inadvertently produced in discovery -- those cases are ongoing.

Glenn Greenwald's comments on this topic are here.

McJoan reports on it here.

The House of Representatives is resisting potential pressure from the White House.
--the BB

The omnipotent presidency-updates (2)

McJoan writes today of the history behind the FISA Law, including the work of the Church Committee. Now that the FISA Law is turning thirty, a little review doesn't hurt. She also writes of the constant goal of Dick Cheney to return presidential power to where it was before Watergate, and perhaps beyond that.
Emptywheel discusses related issues, including minimization.

Jane Hamsher talks about the administration lying about the Protect America Act and where things actually stand.

Glenn Greenwald's post from yesterday ("The Leader isn't protecting us and keeping us safe") also helps clarify the differences between what is being claimed and reality.

There, now y'all can stay in the loop.

No, I don't plan to drop this topic. Thanks for asking.

UPDATE:
Kagro X explains minimization and FBI screw-ups (oopsie, we gathered EVERYTHING) here.

UPDATE2:
Mark Fiore has one of his animated cartoons, explaining about "The Spies Who Love You" (with Snuggly the Bear).
==the BB