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August 23, 2007


The only change to S.1927 over what was initially filed was one amendment, that being the sunset. (text of bills at this link)

McConnell has a bunch of people chasing "minimization." That's a waste of time. All the bills refer to the same "minimization" process, the difference lies elsewhere.

The differences respecting minimization are, in general:

Who determines the efficacy of the minimization (or, what power does the court have over the snooper in this regard); and the extent, conditions and timing of any court second guessing of the minimization.

McConnell's real objection is to having a court involved in advance of running a surveillance regime where one end of the surveillance is out of the country.

I disagree that there's no difference, cboldt.

The bill that passed provides no way to review whether the government met its own minimization procedures, and it provides no means of holding anybody accountable. You may find that negligible. I find it pretty telling.

Minimization in FISA-1978 and the DEM proposed bills was in an application for court order, and in the resulting court order for surveillance, where the surveillance was apt to pick up the conversation of a person located in the US.

The issue is, obviously I think, that requiring a warrant to obtain conversations where one person is in the US is contra-TSP; TSP is designed to obtain conversations with one end in US, one end out of US, and at least on party terrorist -- all without a warrant. If a warrant is imposed on this TSP activity, then it is an additional burden that was not in place from late 2001 until early 2007.

Minimization in FISA-2007 is merely sent to the FISA Court so they can hold it, under seal, without looking at it. Well, they can look at it, but only if a recipient of a surveillance directive from AGAG/DNI challenges the surveillance directive.

The contents of the minimization rhetoric are substantially the same either way ... the difference is that before FISA-2007, the court ALWAYS had an opportunity to reject the proposed procedure, and that opportunity came earlier in the lifespan of a surveillance regime.

-- You may find that negligible. --

Clearly, you haven't read the significant amount of posting I've done on the subject. If you had, you would know that I certainly do not find the changes worked by FISA-2007 to be negligible. I've used the term "radical change."

My point is that the radical change isn't in "what's contained in the minimization procedures," which is where people who haven't studied the various incantations of foreign intelligence surveillance statutes are wont to poke around when McConnell says "minimization." The minimization rhetoric is the same all around (always refers to unchanged 1801(h)). The differences worked by FISA-2007 lie in a place other than the contents of minimization.


Yes, I have read what you've written. I've just done a comparison that lays out distinct differences in the oversight required under the Dem bills and the Republican one.

The difference, to me, is significant--and significant in a way that is a critical part of the difference between old-FISA and new-FISA and the Administrations head fake let FISA play with it until he get cranky with them.

I'm not sure if you're asserting that McConnell is lying to distract us (possible--though these are significant differences in the bills nevertheless), or whether you just happen to think these differences aren't big deals. I do.

Or perhaps you're misreading what I wrote here. I've shown the difference in minimization is in the review of it--before and after. You've just said the same thing.

As long as we're saying the same thing different ways, here is one more on minimization, and one on the "mandatory court review".

Focusing on the -contents- of minimization tends to miss the radical change that FISA-2007 worked.

-- Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5) --

Under the S.1927 protocol, the minimization requirement is a determination of the DNI and AG, "transmitted to the court under seal" and "to remain under seal (not seen by the court) unless the certification is necessary to determine the legality of the acquisition under section 105B"

That challenge would be triggered at 105B(h), if any telco or ISP is nuts enough to buck the system, and even then, the initial court review may find the complaint to be "frivolous" and not open the sealed package.

In contrast, under the previous procedure, "minimization" was critically evaluated by the court. I suspect that minimization deficiencies (in the court's eyes) were the root source of most FISA warrant modifications.
8.10.2007 7:06am

Here's another ...

-- Section 105(C) requires review of the overall procedures by the FISA court --

That is flat out false, or I am seriously reading comprehension impaired. The only review required at 105C can be read therein. Read it.

Sec. 105C. (a) No later than 120 days after the effective date of this Act, the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The procedures submitted pursuant to this section shall be updated and submitted to the Court on an annual basis. (b) No later than 180 days after the effective date of this Act, the court established under section 103(a) shall assess the Government's determination under section 105B(a)(1) that those procedures are reasonably designed to ensure that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The court's review shall be limited to whether the Government's determination is clearly erroneous.
The only determination that I see in there is for the court to undertake to confirm is "does not constitute electronic surveillance." That's the statutory language.

Maybe you meant a different section says that there is a required review of the overall procedures.
8.10.2007 10:35am

I think we are saying the same thing, cboldt.

I'm just tring to pinpoint this, using McConnell's own language, so we can begin to make hay out of it.

And I think I need to add the "under seal" part into my 1927 analysis.

There is one other aspect that should be kept in mind in this discussion, regardless of which side you take. A warrant issued by a court generally not only means judicial supervision on the front end, i.e. obtaining the warrant; it also contemplates some form of "return" on the warrant if and after the warrant is executed. I do not know what the "return" process in FISC consists of specifically, but there is undoubtedly some process, and that provides a further way for the court to monitor what is being done in the name of the citizenry.

-- I'm just tring to pinpoint this, using McConnell's own language, so we can begin to make hay out of it. --

McConnell's complaints are apt to lead analysis down a useless path. I.e., he's misdirecting. Although given the imprecision in his statements, I suspect the misdirection is as much an accident as it is deliberate. A bit of both, in other words.

He's one of the people who's tried to transmogrify the complaint into one that is solely rooted in "some judge made a bogus call on foreign-to-foreign," which, while the "foreign to foreign" part is half true, the judge was right, and "foreign to foreign on US switches" is not the only issue the administration had -- and "capturing foreign to foreign on US-based switches" is not just an issue of technology either -- that's another red herring tossed out by the misdirectors.

The administration insists on being able to listen to calls with one end in the US, and to do so without a warrant. Resolving "foreign-to-foreign" doesn't even approach the "one end in US without a warrant" issue -- and one end in the US without a warrant is what the TSP is about.

-- I think I need to add the "under seal" part into my 1927 analysis. --

The "opened only if the challenge is non-frivolous" should be in there too. I think AGAG/DNI can keep the minimization stuff buried from the court's sight.

One might give more than a passing thought to what constitutes a "frivolous" challenge.

Well, I don't know about others, but I have no illusions about any challenges being certified by AGSquared to FISC. If there are any, they will be frivolous ones just to say they did it and "Look world FISC said we were clean". The new bill effectively neuters and renders useless the FISC.

Cboldt, I wouldn't be so quick to dismiss McConnell's statement as an attempt at misdirection. He was speaking off the cuff that's what popped into his head. It may well be significant. And as EW points out, there are key differences between the bills with respect to minimization. It's not about what the standard is; it's about who decides whether it's being followed.

This is a very helpful post, EW. I gives a lot to ponder.

A.L. Oh both are absolutely critical Constitutionally. Neither element should be minimized. So to speak.

I think cboldt is partially correct. The minimization is something of misdirection in that it is not the big thing they objected to in the other versions. Here's my suggestion on how to parse through McConnell's interview. We know that the illegal spying is Cheney's program. We know how Team Cheney operates from the Libby trial [1]. It is highly likely that McConnell was sent out to regurgitate Team Cheney's talking points and he bungled them. The clearest indication of this is the "if you talk about this, Americans will die" line which is quintessential Cheneyism, but McConnell can't pull off. Let's all put on our crit-lit hats and try to reconstruct the talking points document (stamped "Treat as Top Secret/SCI", I'm sure) that is sitting in Cheney's man-size safe. From there, we can start to figure out what McConnell was supposed to be hiding. I'll be back later with my version.

[1] No matter what you think the whole mess was really about, the trial revealed how the OVP operates.

The difference is way more than minimization.
The two failed bills both specified foreign targets as the point of the update.
The passed law permits warrantless wiretapping of all persons communicating with a foreigner, and data mining of all communications that "concern" foreigners.

This means that if you mention Vladimir Putin in an email, your communication can be flagged.
They still have to get a warrant to wiretap you in a traditional manner, but the "acquisition of certain infromation" can now be done on anyone communicating anywhere.


drat - yep. Heh heh. People are starting to catch on to what I started screaming on about the Thursday or Friday before passage. You are marginally new here; but i am usually much more lighthearted than I have been lately. I was a real bear when people first started coming out of the Yearly Kos hangover and have only nominally improved since.

It is worse that what you just said though. Think of how Cheney/Addington interpret things in general. You took it to the logical extreme. They will take it to the illogical extreme. So, you don't even have to mention Putin. If somebody you talk to has mentioned Putin to somebody else previously, that is good enough. That is concerning foreign. Picture Six Degrees of Kevin Bacon. That is how they will interpret this. Wish effectively zero judicial oversight, and Autopen Albertoad Gonzales the caretaker/gatekeeper, there is no one to stop them and no reason to believe they won't do it.

There is something funky about the timeline for the Senate versions.

McConnell says he sent over three versions, on Monday, Wednesday, and Thursday. I think it works like this:

*The Monday version is H.R. 3356, introduced Friday.
*The Wednesday version is S. 1927, the one that passed, introduced Wednesday.
*The Thursday version is S. 2011, Rockefeller-Levin, introduced Friday.

On Friday afternoon, McConnell issues a statement, support the Thursday version: "I urge Members of Congress to support the legislation I provided last evening." Rockefeller says "He is talking about our bill."

But then, that evening, as the Senate is considering the two bills, McConnell visits the VP's office on the Hill. He comes out saying "Can't do it."

So, for the Rockefeller version: The bill is introduced. McConnell announces he is behind it. He visits the VP office. He then pulls the rug from under it. And he now claims he just hadn't gotten around to reading it.

Under Ashcroft, there was a directive that the FBI "shall retain" all records from datamining efforts. ("Shall" is legalese for "do it, this is not optional.")

It would be interesting to know if a similar policy was in place for the NSA.

One practical upshot of truncated judicial review under the PAA can be seen through something Just an Observer pointed out about FISA's minimization procedures (in section 1801(h)). (See the thread at Balkinization under "How Many Americans Might Be Under Surveillance?")

Read literally, the procedures have nothing to do with section 1805B (a.k.a. 105B): they relate to "electronic surveillance," which 1805B is not about. Now, as I said in reaction, it would take enormous chutzpah for the AG and DNI to read minimization entirely out of 1805B on this basis, but JaO (rightly, I think) reads FISA-2007 with the jaundiced eye that has produced much that we are now reckoning with (and likely much more we have yet to learn about).

And as he also noted (more tellingly, I think), 1801(h)(4), which implicates FISA warrants, by its terms applies only to (electronic) surveillance under section 1802 (bugging embassies and the like). A mindset that sees minimization as only tangentially related to 1805A/B surveillance would have few if any scruples about reading away warrant requirements on this narrower basis, especially if there is no prospect of judicial review. Thus, it can read the letter as opposed to the spirit of FISA minimization procedures into its surveillance program. This is how I see the interplay between 1805B and 1805C (on scope of review).

Note also that Congress wanted a front-end review of the AG/DNI program, to begin no later than 15 days after enactment, but the PAA back-ends it, to 120 days. This bears on what bmaz said earlier. If no FISA warrants are sought under 1805B, the FISA court will have no occasion to assess minimization through this back door. It may wonder why it is receiving no warrant applications during its three-month wait for something to review, but it will have no occasion to raise a stink. Nor will it at the end of this period given the scope of its review.

How far this takes us from the "clearly erroneous" standard of review shows just how much the general public has to learn about the new law.

Same goes for Congress, since it too is being denied similar information. But that's still another story.

Whoops! I meant "four-month wait."

-- If no FISA warrants are sought under 1805B --

105B is emphatically not a warrant of court order process. Read it again.

Also, the court review of 105C is very limited -- for example, the court review of 105C (if it ever occurs) has absolutely nothing to do with minimization.

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