Reidblog [The Reid Report blog]

Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.”

The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment’s protection against unreasonable search and seizure.

The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government’s general spying procedures are found insufficient or unconstitutional by the FISC. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime. A provision touted as a major “concession” by proponents of the bill calls for investigations by the inspectors general of four agencies overseeing spying activities. But members of Congress who do not sit on the Judiciary or Intelligence committees will not be guaranteed access to the agencies’ reports.

The bill essentially grants absolute retroactive immunity to telecommunication companies that facilitated the president’s warrantless wiretapping program over the last seven years by ensuring the dismissal of court cases pending against those companies. The test for the companies’ right to immunity is not whether the government certifications they acted on were actually legal – only whether they were issued. Because it is public knowledge that certifications were issued, all of the pending cases will be summarily dismissed. This means Americans may never learn the truth about what the companies and the government did with our private communications.

“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill – soon to be law – is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.”

“This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “

Here is the part of the story that some seem to have forgotten. In January 2005, eleven months before the New York Times broke the story of the illegal wiretapping program, I asked then-White House Counsel Alberto Gonzales at his confirmation hearing to be Attorney General whether the President had the power to authorize warrantless wiretaps in violation of the criminal law. Neither I nor the vast majority of my colleagues knew it then, but the President had authorized the NSA program three years before, and Mr. Gonzales was directly involved in that issue as White House Counsel. At his confirmation hearing, he first tried to dismiss my question as “hypothetical.” He then testified that “it’s not the policy or the agenda of this President to authorize actions that would be in contravention of our criminal statutes.”

Well, Mr. President, the President’s wiretapping program was in direct contravention of our criminal statutes. Mr. Gonzales knew that, but he wanted the Senate and the American people to think that the President had not acted on the extreme legal theory that the President has the power as Commander in Chief to disobey the criminal laws of this country.

The President, too, misled Congress and the American public. In 2004 and 2005, when Congress was considering the reauthorization of the USA Patriot Act, the President went out of his way to assure us that his administration was getting court orders for wiretaps, all the while knowing full well that his warrantless wiretapping program was ongoing.

Here’s what the President said on April 20, 2004: “Now, by the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

And again, on July 14, 2004: “The government can’t move on wiretaps or roving wiretaps without getting a court order.”

And listen to what the President said on June 9, 2005: “Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, a federal judge’s permission to track his calls, or a federal judge’s permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S.”

So please, let’s not pretend that the highly classified notification to the Gang of Eight, delivered while the President himself was repeatedly presenting a completely different picture to the public, suggests that Congress somehow acquiesced to this program. As the members of this body well know, several members of the Gang of Eight at the time raised concerns when they were told about this, and several have since said they were not told the full story. And of course all of them were instructed not to share what they had learned with a single other person.

First, the FISA Amendments Act would authorize the government to collect all communications between the U.S. and the rest of the world. That could mean millions upon millions of communications between innocent Americans and their friends, families, or business associates overseas could legally be collected. Parents calling their kids studying abroad, emails to friends serving in Iraq – all of these communications could be collected, with absolutely no suspicion of any wrongdoing, under this legislation.

Second, like the earlier Senate version, this bill fails to effectively prohibit the practice of reverse targeting – namely, wiretapping a person overseas when what the government is really interested in is listening to an American here at home with whom the foreigner is communicating. The bill does have a provision that purports to address this issue. It prohibits intentionally targeting a person outside the U.S. without an individualized court order if, quote, “the purpose” is to target someone reasonably believed to be in the U.S. At best, this prevents the government from targeting a person overseas as a complete pretext for getting information on someone in the U.S. But this language would permit intentional and possibly unconstitutional warrantless surveillance of an American so long as the government has any interest, no matter how small, in the person overseas with whom the American is communicating. The bill does not include language that had the support of the House and the vast majority of the Senate’s Democratic caucus, to require the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S. The administration’s refusal to accept that reasonable restriction on its power is telling.

Third, the bill before us imposes no meaningful consequences if the government initiates surveillance using procedures that have not been approved by the FISA Court, and the FISA Court later finds that those procedures were unlawful. Say, for example, the FISA Court determines that the procedures were not even reasonably designed to wiretap foreigners outside the U.S., rather than Americans here at home. Under the bill, all that illegally obtained information on Americans can be retained and used. Once again, there are no consequences for illegal behavior.

... Fourth, this bill doesn’t protect the privacy of Americans whose communications will be collected in vast new quantities. The Administration’s mantra has been: “don’t worry, we have minimization procedures.” But, Mr. President, minimization procedures are nothing more than unchecked executive branch decisions about what information on Americans constitutes “foreign intelligence.” That is why on the Senate floor, I joined with Senator Webb and Senator Tester earlier this year to offer an amendment to provide real protections for the privacy of Americans, while also giving the government the flexibility it needs to wiretap terrorists overseas. This bill relies solely on inadequate minimization procedures to protect innocent Americans. They are simply not enough.

Labels: 110th Congress, ACLU, Bush administration, FISA, Russ Feingold, warrantless wiretaps, worse than Watergate

"Listen to their words of three decades ago ... and I quote: "The view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom, that view created the Nixonian secrecy of the 1970s." And the Church Committee wrote those words in part, as a rebuke to our predecessors in this chamber, who for years allowed secrecy, and executive abuses to slide. But today those words take on new meaning. Today, they rebuke us in a way. Today they shame us for our lack of faith that we
cannot at the same time keep our country safe, and our Constitution whole.

As I said before, when the 21st century version of the Church Committee convenes to investigate the abuses of the past years, how will we be judged? When it reads through the records of our debates, not "if" Mr. President, but "when," what will they find? When the president asked us to repudiate the Geneva Conventions, and strip away the right of habeas corpus, how did we respond? How was our Congress? What did we say about that? When stories about secret prisons, outsourced torture, became impossible to deny, what did that Congress do, in 2008, and 2007? And in June of 2008, when were were asked to put corporations explicitly outside the law, and accept at face value the argument that some are literally too rich to be sued, how did that Congress, how did that Senate vote on that matter? All of these questions are coming for us, Mr.
President, all of that and more. And in the quiet of his or her conscience, each Senator knows what the answers are. Remember, this is about than a few telephone calls, a few companies or a few lawsuits. If the supporters of retroactive immunity keep this argument a technical argument, then they will win. The technical argument obscures the defining question: the rule of law, or the rule of men. that question never goes away, as long there are free societies, generations and leaders who are struggling mightily to answer, and each generation must assert an answer for itself. just because our founders answered it correctl, doesn't mean we are bound by their choice. In that, as with all decisions, we are entirely free, the burden falls not on history, but on us, on each one of us. the 100 of us iwho serve n this remarkable chamber.

But we can take council. We can listen to those who came before us, who made the right choices, even when our nation's very survival was at risk. They knew that the rule of law was far more rooted in our character, than any one man's lawlessness. And from the beginning, they advised us to fight that lawlessness, whenever we found it. At the Constitutional Convention, James
Madison said, and I quote him, "the means of defense against foreign danger, historically, have become the instruments of tyranny at home." He also said, and I quote, 'I beleve that there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments by tose in power, than by violent and sudden usuprtions," end of quote. As long as we are temporary custodians of the Constitution, as we are, we have a duty to guard against those gradual, and silent encroachments. And that's exactly what these are; gradual and silent encroachments. ..."

Labels: bush adminsitration, Chris Dodd, domestic spying, FISA, telcom immunity, Telecoms, U.S. Senate, warrantless wiretaps

Labels: Barack Obama, Bush administration, Chris Dodd, domestic spying, FISA, John McCain, Telecoms, U.S. Senate, warrantless wiretaps

The U.S. House of Representatives has approved legislation that would continue a controversial surveillance program at the U.S. National Security Agency with limited court oversight, while likely ending lawsuits against telecommunications carriers that participated in the program.

The House on Friday voted 293 to 129 to approve a bill that was a compromise between congressional Democrats and U.S. President George Bush.

The bill would extend the NSA surveillance of phone calls and e-mail messages going in and out of the U.S., while giving the U.S. Foreign Intelligence Surveillance Court (FISA) an opportunity to review Bush administration requests for wide-ranging surveillance powers. The bill, called the Foreign Intelligence Surveillance Act Amendments Act, allows the NSA to receive blanket surveillance orders covering multiple suspects of terrorism and other crimes.

The compromise also sends the dozens of outstanding lawsuits against telecom carriers for their alleged participation in the NSA program to a district court, which will review whether they should be dismissed. The lawsuits would be thrown out if telecom companies can show that the U.S. government issued them orders for the surveillance that were presented as lawful.

U.S. President George Bush has pushed for the legislation, saying it's needed to protect U.S. residents from terrorism. For nearly a year, the Bush administration has called on Congress to pass long-term changes to the nation's surveillance laws. Congress passed temporary surveillance legislation, called the Protect America Act, in August 2007, but its provisions expired in February.

“The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President’s illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.”

“Let me remind you, that July 4, 1776 was pre 9/11,” said Rep Jay Inslee (D-Wash.) who indicated he would not support the bill because it infringed on Americans civil liberties.

“Heaven help us if those values were shucked aside in fear.”

Labels: 110th Congress, Bush administration, Democrats, domestic spying, FISA, warrantless wiretaps

The White House, Mr. Feingold said Friday in an interview, “has identified the one major remaining weakness in the Democratic Party, and that’s its unwillingness to stand up to the administration when it’s making a power grab regarding terrorism and national security.”

“They have figured out that all they have to do is start talking about an imminent terrorist threat, back it up against a Congressional recess, and they know the Democrats will cave,” he added.

Representative Jane Harman, Democrat of California, said the White House “very skillfully played the fear card.”

Labels: Bush administration, Democrats, domestic spying, FISA, NSA syping, warrantless wiretaps

For the past several months, the White House has been aggressively pressuring Congress to expand the administration's spying powers and update the Foreign Intelligence Surveillance Act (FISA). On Friday, President Bush bemoaned that Congress had not "drafted a bill I can sign." "We've worked hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk," said Bush. The House surrendered and voted 227 to 183 on Saturday to endorse the administration-backed legislation, which expands the powers of Attorney General Alberto Gonzales. Bush hailed the bill, which he signed into law yesterday, because it would give the Director of National Intelligence Mike McConnell "the most immediate tools he needs to defeat the intentions of our enemies." But in reality, the White House had rejected a narrower compromise bill endorsed by both McConnell and the congressional leadership. As the New York Times noted, this episode was another attempt by the President to "stampede Congress into a completely unnecessary expansion of his power to spy on Americans."

CONGRESS 'PLAYING WITH HALF A DECK': Since March, the Bush administration has been building a case for its FISA legislation. But it wasn't clear until last week why it was pushing so urgently. On Tuesday, House Minority Leader John Boehner (R-OH) revealed on Fox News that earlier this year, a judge issued a secret ruling concluding "that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States." Boehner noted that this court order made "a key element of the Bush administration's wiretapping efforts illegal," a fact the White House has attempted to conceal from the public and many in Congress. "It clearly shows that Congress has been playing with half a deck," said Jim Dempsey, policy director for the Center for Democracy and Technology. "The administration is asking lawmakers to vote on a very important piece of legislation based upon selective declassification of intelligence."

WHITE HOUSE OVERRULED INTEL DIRECTOR: The House congressional leadership quickly worked with McConnell to hammer out legislation fixing the holes created by the secret ruling, which included "three points" that McConnell "said the Bush administration needed." Yet instead of accepting the legislation, the White House took advantage of the opening "to write its warrantless wiretapping program into law -- or, more precisely, to write it out from under any real legal restrictions." "We had an agreement with DNI McConnell," said Stacey Bernards, spokeswoman for House Majority Leader Steny Hoyer (D-MD), "and then the White House quashed the agreement." Nevertheless, lawmakers "more concerned with protecting its political backside than with safeguarding the privacy of American citizens" caved in to the administration's demands for increased spying powers. "The only purpose of [the White House-backed] bill is to protect this administration from its own political problems and cynicism, and its own illegal actions it has taken outside the law without any authorization," said Rep. Jerrold Nadler (D-NY), who opposed the legislation, on the House floor on Saturday.

GONZALES HANDED EXPANDED SPYING POWERS: Provisions of the compromise bill attempted to address the "anachronism" of the 1978 FISA legislation, while imposing oversight on the White House. For example, it would have required audits by the Department of Justice's Inspector General to check the Attorney General. It would also make the Attorney General "create guidelines to ensure that the government applies for a regular FISA warrant application when the government seeks to spy on a U.S. person." Yet under the legislation Bush signed into law, Gonzales has "sole authority" to "intercept any communications believed to be from outside the United States (including from Americans overseas) that involve 'foreign intelligence' -- not just terrorism. ... Instead of having the Foreign Intelligence Surveillance Act court ensure that surveillance is being done properly, with monitoring of Americans minimized, that job would be up to the attorney general and the director of national intelligence. The court's role is reduced to that of rubber stamp." Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) called Gonzales's expanded power "simply unacceptable," in light of the fact that he has misled Congress on disputes over the administration's spying program. On Saturday, House Speaker Nancy Pelosi (D-CA), who opposed the bill, sent a letter to House Judiciary Committee Chairman John Conyers (D-MI) and Intelligence Committee Chairman Silvestre Reyes (D-TX) requesting legislation "as soon as possible after Congress reconvenes" to address the administration's overreaching on spying.

THE DEMOCRATIC-led Congress, more concerned with protecting its political backside than with safeguarding the privacy of American citizens, left town early yesterday after caving in to administration demands that it allow warrantless surveillance of the phone calls and e-mails of American citizens, with scant judicial supervision and no reporting to Congress about how many communications are being intercepted. To call this legislation ill-considered is to give it too much credit: It was scarcely considered at all. Instead, it was strong-armed through both chambers by an administration that seized the opportunity to write its warrantless wiretapping program into law -- or, more precisely, to write it out from under any real legal restrictions.

Administration officials, backed up by their Republican enablers in Congress, argued that they were being dangerously hamstrung in their ability to collect foreign-to-foreign communications by suspected terrorists that happen to transit through the United States. The problem is that while no serious person objects to intercepting foreign-to-foreign communications, what the administration sought -- and what it managed to obtain -- allows much more than foreign-to-foreign contacts. The government will now be free to intercept any communications believed to be from outside the United States (including from Americans overseas) that involve "foreign intelligence" -- not just terrorism. It will be able to monitor phone calls and e-mails of U.S. citizens or residents without warrants -- unless the subject is the "primary target" of the surveillance. Instead of having the Foreign Intelligence Surveillance Act court ensure that surveillance is being done properly, with monitoring of Americans minimized, that job would be up to the attorney general and the director of national intelligence. The court's role is reduced to that of rubber stamp.

This is as reckless as it was unnecessary. Democrats had presented a compromise plan that would have permitted surveillance to proceed, but with court review and an audit by the Justice Department's inspector general, to be provided to Congress, about how many Americans had been surveilled. Democrats could have stuck to their guns and insisted on their version. Instead, nervous about being blamed for any terrorist attack and eager to get out of town, they accepted the unacceptable. Most Democrats opposed the measure, but enough (16 in the Senate, 41 in the House) went with Republicans to allow it to pass, and the leadership enabled that result.

• When you're in a hole, stop digging ... unless you have a magic spade
• From the desk of: Bruce Fein

Labels: Bush administration, Democrats, FISA, NSA, political cowardice, spineless politicians, warrantless wiretaps, wiretapping