Punk’d

WaPo:

McConnell viscerally objected to a Democratic proposal to limit warrantless surveillance of foreigners’ communications with Americans to instances in which one party was a terrorism suspect. McConnell wanted no such limits. “All foreign intelligence” targets in touch with Americans on any topic of interest should be fair game for U.S. spying, he said, according to two participants in the Aug. 2 conversation.

McConnell won the fight, extracting a key concession despite the misgivings of Democratic negotiators. Shortly after that exchange, the Bush administration leveraged Democratic acquiescence into a broader victory: congressional approval of a Republican bill that would expand surveillance powers far beyond what Democratic leaders had initially been willing to accept.

Yet both sides acknowledge that the administration’s resurrection of virtually unchecked Cold War-era power to surveil foreign targets without warrants may be only temporary. The law expires in 180 days, and Democrats, smarting from their political defeat, have promised to alter it with new legislation to be prepared next month, when Congress returns from its recess.

“The real train wreck happens in September,” said a senior administration official involved in the negotiations with Congress. He was referring to House Speaker Nancy Pelosi’s declaration hours after the bill’s passage that portions are “unacceptable” and that the public will not want to wait six months “before corrective action is taken.”

1) The 180 day expiration date is a red herring. Careful reading of the law reveals a clever little provision that allows the president to re-authorize warrantless surveillance for one year after the law sunsets, which means that president Bush will never lose the powers that Congress just gave him.

2) As the saying goes, tough talk from Democrats and six bucks will buy you a venti mochacchino at Starbucks. Last week all Dems needed to defeat the Orwellian bill was to not pass it. Today Harry Reid will have to corral Lieberdems and several Republicans to break a filibuster.

Then, after the Earth reverses its orbit, Israel and Hamas settle their differences and the Pirates win a World Series the Dem leadership can try gathering enough Republican support to override a presidential veto. Think about how likely that is. Physicists estimate that Reid and Pelosi would be better off building a time machine to travel back and assassinate the grandfather of whatever idiot counseled that capitulating to the White House was a great way to look strong.

***

So far I have seen zero legally informed responses to my Grandma Test post (there was a good comment that did not quote the law), so I will ask again. How does the law define who “can” and “cannot” be wiretapped? What is the process for determining whether a given tap meets the criteria? Who oversees the operation to prevent abuse? Who is responsible for detecting, reporting and judging violations and what are the penalties? If you can answer or if you have written a blog post that answers my questions, drop a line and I will promote it. Many thanks.






25 replies
  1. 1
    dslak says:

    2) As the saying goes, tough talk from Democrats and six bucks will buy you a venti mochacchino at Starbucks

    They might give you discount if you forget about the tought talk.

  2. 2
    Mr Furious says:

    Silly Tim. As Superman demonstrated, as soon as the Earth reverses its orbit, we’ll already be going back in time…

    Problem solved. See, Harry Reid really was a boxer.

  3. 3
    Zifnab says:

    How does the law define who “can” and “cannot” be wiretapped? What is the process for determining whether a given tap meets the criteria? Who oversees the operation to prevent abuse? Who is responsible for detecting, reporting and judging violations and what are the penalties?

    Have they codified the “Pony Test” into this law yet? The one that states “If the President thinks you are secretly harboring ponies, he can do whatever the hell he wants and damn the consequences”?

  4. 4
    sparky says:

    I think (having read some but not all the posts on this topic) the answer is that the law permits surveillance of anyone and anything “concerning persons reasonably believed to be outside the United States.” The operative words here are concerning and reasonably believed. Concerning is an incredibly broad word that can be stretched in any direction. Try it yourself and you’ll see–anything can be said to be “concerning”something else. And reasonably believed? Well, that means that the government simply has to say “well we believed it.” And yes, the person who says that is Mr. Gonzales. Is the picture getting any clearer now?

    I think it is probably the case that the law was drafted in a fashion that defies definition precisely so as to permit any executive branch interpretation that can be uttered with a straight face. In other words, yes, we can wiretap any commmunication, with anyone, anytime, anywhere. After all, it might reasonably be concerning a person outside the US. And you can’t prove otherwise because your proof would compromise national security.

    The best posts on this topic are at Anonymous Liberal and Balkanization (Lederman).

  5. 5
    sparky says:

    Balkinization not Balkanization. My bad.

    http://balkin.blogspot.com/#3025793336985140173

  6. 6
    RSA says:

    I don’t know the answer to Tim F.’s question, but the issue reminded me of recent poll results from a Democratic outfit: President Bush wants the power to wiretap the phone calls and emails of Americans without a search warrant from a judge. Approval versus disapproval, by party affiliation:

    Dem: 11% / 87%

    Ind: 17% / 80%

    Rep: 42% / 51%

    I can’t say I’m surprised, but I am disappointed.

  7. 7
    Dungheap says:

    I’d also add that the only people in place to prevent abuse are the communications service providers by refusing to give the government the information that they want, at the risk of being held in contempt of court. Of course, the law also immunizes the same communications providers from lawsuits based on their compliance with the government. Where’s the incentive?

  8. 8
    Wilfred says:

    I don’t think the Democrats had much choice since not giving in on this would have meant one more rhetorical hammer to be bashed over their heads, The real test will come when Bushco is deposited in they trash and they get to use Fisa against the Republicans, assuming enough Americans still care about preventing such authoritarian measures.
    It’s not even about politics, IMO. More of a characterlogical tendency towards authoritarianism and repression that has always existed in American society, a throwback to the Puritans, perhaps. Without considering that tendency, it’s difficult to understand how self-proclaimed ‘conservatives’ can support such measures.
    Once again, however, this calls for civil disobedience, perhaps flooding e-mails and correspondence with the kind of key words they look for.

  9. 9
    dslak says:

    I don’t think the Democrats had much choice since not giving in on this would have meant one more rhetorical hammer to be bashed over their heads,

    You mean how they accused Democrats of being terrorist sympathizers, thus costing them the elections in 2006?

  10. 10
    dslak says:

    Let’s try that again.

    I don’t think the Democrats had much choice since not giving in on this would have meant one more rhetorical hammer to be bashed over their heads,

    You mean how they accused Democrats of being terrorist sympathizers, thus costing them the elections in 2006?

  11. 11
    Mithras says:

    Careful reading of the law reveals a clever little provision that allows the president to re-authorize warrantless surveillance for one year after the law sunsets, which means that president Bush will never lose the powers that Congress just gave him.

    Cite?

  12. 12
    Punchy says:

    Who is responsible for detecting, reporting and judging violations and what are the penalties?

    If you’re not doing anything wrong, then what’s the problem?

  13. 13
    dlw32 says:

    Re: RSA’s poll
    What amazes me about the GOP’s support for this warrantless wiretapping is that it’s not limited to GOP Presidents. I wonder what the GOP response would be if the question was asked as:
    President Bush wants to give Hillary Clinton the power to wiretap the phone calls and emails of Americans without a search warrant from a judge.

  14. 14
    Tim F. says:

    Cite?

    Radio report. This is not exactly how I heard it described earlier, but it comes fairly close:

    The power may last longer than some people expect, Graves noted, thanks to a little-noticed provision of the bill. While the law expires in February unless Congress acts to extend it, any surveillance orders that are in place when it sunsets can last up to a full year, she said.

    Without a repeal, lawmakers “weren’t just giving them the power for six months. They were giving it to them for the rest of the administration,” Graves said.

  15. 15

    I don’t understand what the Democrats were thinking.

    They’re not going to be able to get a followup bill passed. Bush will veto it.

    Morons.

  16. 16
    RandyH says:

    Tim-

    Se this post by Anonymous Liberal. It’s his latest on this subject but he has written quite a bit on this from the start. His has been the best informed commentary on the NSA surveillance issue I’ve read anywhere.

  17. 17
    Dave says:

    I don’t understand what the Democrats were thinking.

    It’s obvious, they weren’t.

    The amount of stupidity involved here by the Democrats is breathtaking for lack of a better word. I’m so fucking pissed at them and especially my “wonderful” Senator, Feinstein (who will never see my vote again).

  18. 18
    demimondian says:

    Tim — the one year provision is a little more complicated than you read it. If the law is not renewed, then any on-going surveillance may continue for up to a year. No new ones may be initiated after that time, so Bush still needs the Congress to renew the law.

  19. 19
    Rome Again says:

    I don’t understand what the Democrats were thinking.

    How many times have we said this recently?

  20. 20
    Dave says:

    Tim—the one year provision is a little more complicated than you read it. If the law is not renewed, then any on-going surveillance may continue for up to a year. No new ones may be initiated after that time, so Bush still needs the Congress to renew the law.

    Yeah I was relieved a little when I read that in the WaPo article. Tim’s original statement was quite a way to wake up this morning.

    I’d still be curious to see if I can find an archive of the original report Tim was referring to, if he’d kick down the what/where/when.

    Oh, and Tim as been pointed out, I think the Anonymous Liberal is answering all your Grandma Test questions and more.

  21. 21
    LITBMueller says:

    How does the law define who “can” and “cannot” be wiretapped?

    OK, first, we have to eliminate the word “wiretapped,” because this bill does not address just traditional wiretapping in the conventional sense. Instead, it concerns what it refers to as “acquisitions”:

    “the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;”

    50 U.S.C. 1801, Sec. 105B(a)(3)

    So, we’re talking about the government either obtaining phone records of past calls, or plugging into the system to listen as a call is made (more traditional wiretapping, but different in that this is with the compliance of the phone co., and not using a “bug” or listening device).

    Plus, note that the bill refers broadly to “communications” – that leaves open the possibility of intercepting incoming, outgoing, or stored emails, faxes, and other data transmissions.

    As for “can” and “cannot,” this bill leaves it entirely up to the Administration:

    there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act.

    50 U.S.C. 1801, Sec. 105B(a)(3)

    This, and other language, shows that the bill only require the DNI & AG to “reasonably believe” that the person who will be listened in on is outside the US. Can you imagine the amount of wiggle room this leaves them?

    What is the process for determining whether a given tap meets the criteria?

    There is a certification process:

    This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made.

    50 U.S.C. 1801, Sec. 105B(a)

    The highlighted language essentially makes the Senate’s participation in oversight completely optional, at the discretion of Administration officials. They don’t have to certify anything to Congress. And, anything they declare themselves to be an emergency, they can do the certification post hoc.

    The certification then goes to the FISA court for review. And, remember, the belief that the subject is outside of the US only needs to “reasonable.” “Reasonableness” is a term of art in the law: if the government is held to a “reasonableness” standard, then it wins 9.95 times out out of 10. So, don’t expect the FISA court to question the government’s determination of reasonableness.

    Who oversees the operation to prevent abuse?

    Well, FISA reviews the certification, but as to the actual surveillance, the fox is in charge of the hen house.

    Who is responsible for detecting, reporting and judging violations and what are the penalties?

    Congress is supposed to get a report from the AG & DNI on “a semi-annual basis” that informs them of:

    incidents of non-compliance by an element of the Intelligence Community with guidelines or procedures established for determining that the acquisition of foreign intelligence authorized by the Attorney General and Director of National Intelligence concerns persons reasonably to be outside the United States

    S.1927, sec. 4(1)(A)

    And, that’s it! The AG & DNI are supposed to detect their own violations and report them to Congress. Congress can judge them all they want, but there is no mechanism in place for addressing violations.

  22. 22

    It’s important to note that the procedures and (weak) oversight mechanisms LITBMueller is describing only come into play if the AG and DNI choose to invoke the authority under 105B. Because section 105A of the new law redefines “electronic surveillance” in a way that excludes everything that is being done under 105B, 105B’s provisions do not fall within the scope of FISA’s exclusivity clause or penal provisions. In other words, the president retains the concurrent authority to conduct this sort of surveillance on his own, and the procedures under 105B are optional and toothless. For a longer explanation of this point, see this post.

  23. 23
    KCinDC says:

    Marty Lederman posted on the relative meaninglessness of the sunset provision, as far as the remaining time for this regime goes.

  24. 24
    LITBMueller says:

    I would also add that the term “acquisitions” is really striking. They seem to be admitting by that this not a program where an analyst at CIA determines that ONE guy in Saudi Arabia who is a suspected terrorist is contacting someone in US, so they need to eavesdrop. “Acquisitions” seems to imply that the electronic communications data is being collected on a large scale. Perhaps massive (which would explain why Congresscritters are so amped up about passing a law that protects telecommunications companies from being sued over this stuff)

    Plus, there is the “chicken before the egg” problem. How does the government determine that such “acquisitions” are necessary regarding any target…without first listening in and actually determining first that, yes, Terrorist A is making phone calls and sending emails to someone in the US?

    Know what I mean?

    I wouldn’t be surprised if the administration has been using some tortured reading of the statute under which placing a computer program in telephone company “switchboards” or Hotmail’s servers that alerts them whenever a Suspected Terrorist makes a phone call or sends an email to the US is NOT monitoring or an acquisition.

    Cuz nobody has asked them how do they know to start monitoring certain phone calls in the first place.

  25. 25

    […] Thanks to many who responded to my request, particularly to commenter LITBMueller for this highly informed comment. […]

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