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August 16, 2007


Just read the redacted notes at TPM.

Last meeting of the week is with Cheney.

I guess that is where the buck stops.

I'm sorry. This discussion, by it's very nature, is a matter of national security and cannot be allowed under the Government's State Secrets Guidelines. This must be taken down at once, all evidence, including servers, written copies, and brain cells, seized and retained by the government. Furthermore, ANY discussion of the fact that this action and seizure has occurred is also a matter of national security and cannot be permitted in any manner or forum, subject to Federal prosecution and incarceration.

Sound crazy? That is effectively the position staked out yesterday, with arrogant impunity, by the United States Government in a Federal Circuit Court of Appeals.


I left a question for you at the end of the last thread, in case you're not planning on going back there...

bmaz, your comment reminds me of this post from last October, pointing to an incredible story told at Balkinization by Brian Tamanaha.

The following cautionary tale will help make the risks more concrete. It is about a young federal public defender handling a case, United States v. Rewald, which involved the CIA and several hundred documents containing classified information. One day, about a month into the trial, following a grueling cross-examination by the defense attorney of a witness from the CIA, which clearly harmed the government’s case, the federal prosecutors asked the judge for a closed hearing. In the closed hearing, with only the lawyers and the judge present, the lead prosecutor, from the U.S. Department of Justice, requested that the judge hold the defense attorney in criminal contempt for asking questions of the CIA witnesses that elicited prohibited classified information in open court.

Despite the protestations to the contrary of the public defender, Federal District Judge Harold Fong immediately agreed with the prosecutor. At that very moment, he ordered that the public defender would be put on trial for three counts of criminal contempt 30 days after the completion of the ongoing trial. Judge Fong also ruled that the public defender would be entitled to representation by counsel, which signaled that the judge contemplated that the lawyer could be sentenced to a year or more in prison if found guilty. The ongoing trial was recessed for the remainder of the afternoon, but it resumed the next day as if nothing had happened.

And that was back in the mid-80s. Ramp that up to today's insanity levels, and you have a real horror show.

bmaz: please report to the nearest Ministry of Truth office for reprogramming.



Ah huh. A code word for jihad taken from Padilla's playbook. Lock her up, storm troopers.

Wow. I knew a bit about the Wilson case; but was not aware of Tramanaha and US v. Rewald. I sure would have like to have helped him sue after the dismissal with prejudice was issued. I didn't see any evidence of him having done so; he certainly should have and I hope he did. There is a fairly giant problem because of the initial judge, Fong, being in the middle of the probable cause/charging on the contempt; given enough time I could figure some way to get at them though.


Heh heh. Laughter and frivolity is about all we have left. They will be coming for that soon; cause, you know, free speech in the form of laughter must give way to protecting the motherland in a time of war......

welcome to the machine
what did you dream?
we know
we told you what to dream

somebody please wake me up

EW, What's cooking beside tyranny-misu and the end of freedom fries as we know it? The cleanup is going to be a lot hardy than I ever imagined.

Did anyone else choke on "General Ashcroft?" I know it's a mis-spokement, but...


Actually, it's correct. The proper term for an Attorney General is General.

Which means AGAG is actually Judge General Gonzales. That, I choke on.

It's a mouthfull too...it sounds more appropriate for a third world dictator name...bleh.

In your post regarding the AG not having access to info on NSA, I remember reading at the beginning of this story that Ashcroft and the man who he delegated to check on the NSA original certification were both denied any access to the "classified" materials and for 2 years Ashcroft continued to go ahead and sign the certification sight unseen. Only when Comey and Goldsmith took over their new duties and Goldsmith pursued the info to make a determination did they find out that they too were not going to be allowed to see info. They pushed back and after finally getting to see some of the nuts and bolts went to Ashcroft and they all decided that the DOJ would not recertify as it was. I can't remember where I read it and have mentioned this first 2 years of "blind" certification, without ever seeing the program, to many politicians but nobody has followed up on it. Now Conyers says he is "particularly disconcerted" as if he wasn't aware of the hiding of the NSA program from DOJ for 2 1/2 years. This is the really crux of the story! http://uspolitics.about.com/b/a/208099.htm
This has some inferences to that affect but I can't find the original story I read.

"Just read the redacted notes at TPM.

Last meeting of the week is with Cheney.

I guess that is where the buck stops."

One other interesting thing that strikes me is that the only time Junya gets involved is on Friday, 03/12/04 after FBI Director Robert Mueller finishes his daily morning briefing.

It seems that the Puppet gets wound up by Cheney, Gonzo and Card just this one time to use his Texas bullsh*t schmooze to try and get these friggin' DOJ lawyers back in line.

And we all know how well that worked out.


I just finished a post on this subject. You may have already highlighted this in a previous post, but there's a key exhange been Sen. Whitehouse and Gonzales on this point in his July testimony. I think the DOJ was kept in the dark for two years about key aspects of this program, and that's a big deal.

A.L. - I have to run out to Bank and FedEx (there are aspects of self employment that suck) so i will read your post later; but if this hypothesis is true, I have a real problem with the certifications made by DOJ during that period (on the order of false swearing when you know you are making it with incomplete information) and the knowing proffer of the same by the Executive with not only the knowledge that the DOJ was making the cert with incomplete info and, knowing that they (the Administration) are the ones malevolently withholding the accurate information (which undoubtedly indicates unconstitutional and/or illegal behavior). If this is truly the case, it is hard to describe how serious it is.


I put some more detail at end of last thread, but I do not know the specific Office that you mentioned.

Yeah, AL, I think I called attention to that in the liveblog. The "Angler series" and a few more things make it clear that Cheney was working around Ascroft by going directly to Yoo, so that wasn't really news at the time, but still, they could have pushed AGAG even further.

EW - I remember your stuff, but I did not believe the restricted information necessarily included Ashcroft, or the actual person signing off on the cert, themselves. I guess my supposition was that it was just difficult because they didn't have the assistance of staff, not that they, themselves, were operating in the dark.

it's late summer. time for canning. a wonderful, if very demanding, old custom that is fading fast.

there used to be, in appalachia at least, community canneries with giant boilers and stainless steel prep tables, dating from the new deal era i believe. families and neighbors would go there to "work up a batch" and "process" two or three dozen quart jars at a time in those boilers (think very large pressure cookers) - tomatoes, green beans, shelley beans, corn, peaches, apples, pickles of all kinds, tomato sauce/ketchup, etc.

i remember canning as a very social activity, mainly because doing it by yourself was like building a house by yourself, intolerably hard and tedious work.

congrats on keeping the tradition alive, e'wheel. what's mr. e'wheel's job?

AL - I only skimmed through the part of the exchange you had up, but didn't see the other part that I remember - something along the lines of Whitehouse saying to Gonzales "if there was a program operating in secret without the AGs knowledge that would be a serious matter, wouldn't it?" or something like that. Whitehouse is on Intel as well as judiciary.

I have a real problem with the certifications made by DOJ during that period (on the order of false swearing when you know you are making it with incomplete information) and the knowing proffer of the same by the Executive with not only the knowledge that the DOJ was making the cert with incomplete info and, knowing that they (the Administration) are the ones malevolently withholding the accurate information (which undoubtedly indicates unconstitutional and/or illegal behavior). If this is truly the case, it is hard to describe how serious it is.

Now factor in what it would be if the "certifications" were being made by the AG bc they were being passed on to the FISA court, bc of a demand by the FISA court for certain kinds of certifications so they could be certain the orders they were issuing were not being tainted by the illegal programs.

Bc really - why else would there be certifications, if they weren't going to anyone? Are there "certifications" that go out every 45 days, reaffirming the President's rights to hold people at GITMO? Reaffirming his ability to engage in extreme renditions? I have to believe that the 45 day renewals and certifications were being given to/had an impact on someone outside the oval office.

And if it was a court - and involved mistatments to the court by the AG, ...


The Ashcroft avoidance program was not me--I believe it was from the Angler piece and one other article, though perhaps I should track it down. The idea being NOT that DOJ was not read into the program, but that someone besides the AG was the one getting read into the program. We also know that Larry THompson NEVER got read into the program. Comey likely did because 1) he had been involved in some of these cases, and 2) Goldsmith went apeshit.

That said, I will do a post tomorrow, but I don't think this--or Whitehouse's questioning, amounts to full non-disclosure to DOJ. That is, what has been said is more consistent with AG not being read in, and other allies being read in. Still means AG should not sign off on the program, though, as bmaz suggests.

Oh, that was my assumption. They do not execute sworn certifications and affidavits unless absolutely forced to do so. There is no evidence Congress required the certs; had to be judicial.

Oh, and Orion--my friend and I canned together today. It was her first time. We had a bad day, losing one jar to a crack in the water bath, and two more to incomplete seals. But she brought her gallon and a half home, and we managed to clear the tomoatoes in my garden for at least one day or two before the romas come in.

But I've got to do peach jam tomorrow, which is the real necessity--can't have mr. emptywheel's sourdough pancakes without either MI syrup (and it was a bad year for syrup in warm MI), or peach jam.

-- Bc really - why else would there be certifications, if they weren't going to anyone? --

They would go to telcos - I'm of the impression that FISC was out of the loop. Even 1802(a) activity involves communicating a detailed acquisition justification to FISC, albeit under seal.

My sense is that DoJ/NSA were making their pitch to the telcos (with the EO as their ultimate authority), and not to the FISC at all -- unless the EO had a provision to transmit something to the FISC.

In the same vein, but looking from a different direction, I'm wondering if AG Gonzales' careful use of "he believed" (vs. "he was right") when referring to AG Ashcroft's sense about the statutory legality of the TSP is based on "discovering" the AUMF later in the game.

That is, as a matter of legal justification purely under the statutes (without reference to Article II power to justify acting outside of a statute), Ashcroft would have to use either flawed statutory analysis, or work from false assumptions (e.g., no acquisitions in the US) to conclude the TSP was "within the [statutory] law." AG Gonzales, in his public analysis, always uses the AUMF as part of the statutory framework. Did AG Ashcroft always rely on the AUMF too?

The certification I am thinking of is at 18 USC 2511 section (2)(a)(ii)(B)

18 USC 2511 (2)(a)(ii) describes the contents of two forms of communications acquisition authority transmitted from the government to a telco. Section (2)(a)(ii)(A) reads "a court order directing such assistance signed by the authorizing judge, or"

Section (2)(a)(ii)(B) reads ...

a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required ...

A section (2)(a)(ii)(B) certification is NOT transmitted to the Court. It is transmitted to the telco.

FISA 1802 describes certifications to be sent to the FISC to support warrantless acquisition under the terms of FISA.

The TSP as described by the administration, when the acquisition is "in the US," is not in accord with the terms of FISA. Ergo, one would think the administration would not feel bound to transmit ANYTHING to the FISC, that would memorialize the activity the administration dubs "TSP."

A plausible hypothesis. I still have an inkling that the court is involved in their panic; there are to many ways around simply the telcos. They were under a fear of some sort to pull the hospital stunt; telcos may have played a role in that, but it doesn't strike me as by any means the sole basis. Smells like FISC to me.

-- I still have an inkling that the court is involved in their panic --

"Involved" before the fact, as in AG Ashcroft had been submitting things to FISC all along?

Or "involved" as in hadn't been contacted at all about the TSP, and would probably disagree with the DoJ's analysis if it had to rule on it."?

And by "hadn't been contacted at all," I mean not even so much as a sealed filing, not to be opened by the FISC "unless," as is spelled out under the warrantless procedure of 1802.

Yeah, well that is the question that ought to be asked of my statement. I don't know. Honestly, the former explanation you delineate was pretty much primary; but I find your arguments on the latter explanation compelling as well. It could be one, the other, or some combination such as the FISC being excluded, putting 2+2 together, and initiating a dressing down chat with the Administration. I just don't know; but the panicked and crazed nature of the events surrounding the hospital affair has always creamed judicial problem to me, and i mean at that time, not just prospective. I could be wrong, but that is still my feeling.

"creamed" should read screamed. I really have to get lasik or glasses or something.

-- the panicked and crazed nature of the events surrounding the hospital affair has always screamed judicial problem to me --

I agree. But if the concern was ONLY with the FISC, then the dressing down would be classified too, since rejected applications for court orders, etc. are (properly, as far as I'm concerned) done with no public awareness.

Somebody had a cat in the bag, they knew they had a cat in the bag, and they did not want the cat to come out of the bag. And dialog with the FISC won't let the cat out of the bag. At worst, it results in continued surveillance after being told by the court what they likely already knew, "this acquisition activity is outside of what is permitted in the statutory framework of FISA."

I'm biased toward the "had no contact with FISC or any other Court," at first because the program is openly described as "warrantless" (i.e, no court order), then by administration statements about "first submitting this to FISC in January 2007," and then by reading some of the relevant statutes, all of which provide some sort of filing with the court, even where there is no requirement for the court to review or approve the filing. If they DO submit it, and it's rejected, and they continue, then they're running a program with an independent opinion from another branch of government. FWIW, I think that scenario is embodied in the recent March-May 2007 events between FISC and the administration.

And if the snoopers had been misleading not just AG Ashcroft, but also the FISC, well, even more hell to pay.

I don't see AG Ashcroft making the 50 USC 1802 certification to the FISC. It's too easy to figure out that the 1801(a)(1),(2), or (3) category of person permitted to put under 1802 warrantless surveillance expressly excludes people under

1801 (a) "Foreign power" means-- (4) a group engaged in international terrorism or activities in preparation therefor

... and it's EXACTLY that group of people that is aimed to be covered by the warrantless surveillance of "one person in US, one person out of US, one person al Qaeda."

In short, TSP was a solo-operation of the administration from the get-go, with the risk of rejection by a court -but only if- a court ever found out.

I find what you are saying compelling as to why it is not likely "only with the FISC". By the same token, for the reasons I previously stated, I don't see it being just telcos or whatever creating the extreme level of what went on. I guess that leaves some combination, perhaps such as the FISC figuring out some or all of what was going on and creating a stink of some sort. I want to know, but just don't. The following is part of something I said to EW about this: We can postulate and argue till the cows come home on the specifics of how it went down, but no matter how you slice and dice it, a fraudulent scheme and artifice, a con game, was run on the Congress, the Judiciary, the People and, amazingly, even on individual members of their own cabal. This is the most insidious and cancerous plague on what we are, or at least are supposed to be, imaginable. This is exactly, and I mean exactly, the type of situation that the Constitutional framers feared the most, and thought the biggest threat to the form of government they were creating.

What's really amazing is that the shadow operation is being legitimized via statutory buy-in from Congress and "secret" Court decisions.

It'll still be a shadow operation, but by golly, it'll be a LEGAL shadow operation.

For your protection, of course.

And therein lies exactly why I started going ape-shit about two weeks ago yesterday and have been a very cranky bear ever since. And just so you know, if you didn't already, i am just as hot under the collar about the Dem leadership as I am the Bushies at this point. In one sense, disjunctive political parties is nothing but a semantical exercise. What counts is what they do and what result they form. We currently have the answer to that on this issue.

cboldt - I've talked about and written about the telecom certification - 2511 (2)(a)(ii)(B) and that this is an issue - especailly the certification that all "statutory requirments" have been met (which basically ties to FISA that they are only doing the specialized foreign powers warrantless taping that gets the one year reports), but that is not what I am talking about here.

I can see where it might be a part of the issue, and I've had that speculation before, but I don't think they would be re-issuing at 45 day intervals for that type of certification and I don't think that there would be any way to claim some sudden realization that they couldn't make that type of certification to the telecoms, two years into the program. Could be - but that's not my chief spec and I don't think it would explain the FBI Dir. involvement as well.

My spec ties to the fact that it has been reported several times that both the FISA chief judges were briefed in on the program. First Lamberth, then Kollar-Kotelly. It has also been reported that both thought the program illegal and unconstitutional, but that there was nothing they could do bc a case was not before them. Also that both implemented procedures - - and that's where it gets vague - - to keep the illegal plan and the fruits thereof out of the FISC.

Among other things, one of the revealed procedures was that for anyone who had been an object of the illegal program surveillance, if a FISA warrant/order was sought for that subject (let's call them A) then the AG and Director (who are often sign offs for the applications)were to make sure those applications only went to the Chief FISA Judge (who was briefed in) and that they guarantee that no information from the illegal program was forming a part or basis of the application.

Not much else is revealed about procedures, but if you look at how FISA is set up, and what the FISA statutes already contemplate - and at the way courts operate when they require ongoing compliance obligations from attorneys, I find it hard to believe that the procedures did not include a certification of some kind given to the Chief Judge that the procedures were being complied with and that they did not have to worry about the orders/warrants being issued for other cases being tainted bc they were certifying compliance with the procedures.

There have also been reports that, during the same time frame as all this "showdown," the FISC Chief Judge (Kollar-Kotelly) discovered that her procedures were NOT being complied with and that she read the riot act to the AG and was threatening contempt against the folks at main justice who were signing off on the applications. umm - that would include the AG and FBI Dir. That story has been pretty buried and not received the attention that it should, IMO, but it is pretty darn telling. Part of that story is that "the program" was temporarily shut down as a result of the court's reaction.

Do you think the program was shut down two different times in the same time frame - once bc of Comey and once bc of the court? Or is it maybe more plausible that they are related? That the court threatening actions against the attys involved made them get religion?

I did a kos diary awhile back on this, but I think I will rework it and add more facts. In particular, I think that it is interesting that, soon after Comey's testimony, Lamberth got chatty about how "George Bush's way" was a bad way, how fast FISA warrants can get issued (issuing them in the middle of the night after the embassy bombings and from his car on 9/11) and, more importantly, suddenly reciting the story of an FBI agent tossed out of the FISC court, even though they were a top counterterrorism operative, bc of lies. Either Lamberth or Pincus really chose to emphasize Lamberth's statements that the FISC court(well, at least some of them) won't tolerate lies - from anyone.

cboldt - as I read what you have, I think your position is based on the assumption that the FISC did not know about the program originally. But that is not the case.


The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush's program. ...

FWIW - here's my old kos diary, although it needs update and expansion. http://www.dailykos.com/storyonly/2007/5/2/15117/77338

Thanks for those. Now that you mention it, I do recall the FISC-judge-expressed concerns about taint.

It's encouraging in some ways, and discouraging in others, that the judges had a concern, and acted to the extent of their authority to deal with that concern.

They knew about the TSP, and they didn't want the taint to contaminate the cases that were within FISA process.

But there is also that material outside of the FISA process - action unknown, and constitutionality of the surveillance untested (maybe untestable) by a Court. I don't know the scope of material in that land of limbo, but it bugs me that the government is inclined to "grow" it instead of "shrink" it.

Just to expand a bit, the "certification" that Comey couldn't give wasn't one that appears in a statute - it was one that was in an agreement between Justice and FISC, "off the books," where the agreement was designed to prevent taint to the FISA materials.

The renewal period on this could be anything those parties worked out between them, and Lamberth/Kollar-Kotelly may have obtained a 45 day period for review and "no taint" certification.

That Washington Post story has more that helps characterize the nature of the surveillance:

... then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broadhunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement

This one caught my eye too ...

Justice higher-ups viewed [James A. Baker, the counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review] as suspect, but they also recognized that he had the judges' confidence and kept him in the pivotal position of obtaining warrants to spy on possible terrorists

He's a suspect?

Anyway, thanks again for the leads, comments, analysis, corrections, etc. Very much appreciated.

And this sort of "off the books" agreement between the head judges at FISC and AGs Ashcroft and Gonzales provides a possibility of having conflicts on different levels.

On one level, as to the "legality" of the TSP, there may have been an "agreement to disagree, just don't taint the FISA pool." IOW, there needn't be agreement about the ultimate legality/constitutionality of the TSP -- there was agreement to not argue about it, and let the perpetrators take whatever legal/political fallout would accompany disclosure.

On another level, there may be disagreement as to whether or not the "no taint" measures were effective.

Comey may have been fine with continuing the "agree to disagree" as to the TSP itself, if he in fact disagreed with it - yet still be of a mind to make sure the FISC court's interests were protected.

Don't know about the last sentence re Comey, head to cluttered to think about that. But the remainder of the last two consecutive posts is along the lines of what I have long been thinking. That some kind of accommodation was reached, FISC was probably still uneasy about it and then reached a blow up point.

the "certification" that Comey couldn't give wasn't one that appears in a statute

Right - that was part of why I don't think it could be the telecom certification. That certification is provided for arguably by statute - although they would have been dancing on the heads of a few pins to get there.

I can't say I KNOW, one way or the other, what the certification was for. But I do think that the reactions of the lawyers involved (and Mueller himself for that matter) indicated that they were suddenly concerned on a personal liability level - and one where they could arguably also invoke damage to the institutions to make their personal concerns seem more grandiose and appealing.

But when you look at the things the players in this piece were willing to do, and did do, up through and including personal involvement in torture policies and coverups for cases where individuals were tortured, they aren't really the idealistic group to have a showdown over some esoteric legalism that may have existed without quibble for a couple of years and might not cause the ruin of the world if they had to work on the President for another month or two to get their way.

But if what was happening would require them to knowingly make a false statement to a court that KNEW THE TRUTH, and in particular a court that - per the WaPo article - was threatening perjury charges, then that might just explain the sudden finding of backbone. Also might explain why no one's "ethics" were so offended that they went and said anything to anyone during the Gonzales nomination. They were mostly players in the go along and get along sense; only the brink of personal liability with a hot court changed that. Once that was off the table - they were fine to go along with Gonzales moving in as AG and the story staying hidden, while they went on to academia and private industry payoff slots. Now that the Congress is turning and the Presidency may turn, that private industry benefits by playing kissup with some Dems, so lo and behold - the story emerges.

That's my cynical take.

So it is just spec that the certifications involve the court, but you connect the dots and I think there is a lot there to make you wonder. It also makes the referral to OPR for the Gonzales investigation, as opposed to the IG, make more sense. The "nature of the legal advice" issue aside, OPR is dead on the right entity to deal with a Gov lawyer's efforts to make misrepresentations to the court.

Another overlay that may or may not have any impact. During that early spring discovery was proceeding in the Harimain case. That's the one where the NSA log on the illegal surveillance pops up. But that case also involved a broad and seemingly legal and legitimate effort by DOJ to crack down on Islamic charities that were actually serving as a front for funneling monies to terrorists or for terrorist supplies or money laundering etc.

So as a part of that "out in the open" effort, how likely is it, do you think, that there were applications for FISA orders/warrants?

I bet there were.

Now, that spring gov got a shocker in doc production and ended up not only having lawyers working on the case become aware of the NSA log for the illegal taps, but also the DEFENSE lawyers. This wasn't going to stay under wraps long. IMO, it might have been the trigger event and the disclosure to the FISA court, if it was about this case, may have been less tied to altruism by ANYONE at DOJ, and more tied to the fact that the Judges were going to find out anyway and better to go to Kollar-Kotelly hat in hand and apologetically.

My approach is also why I think that they could settle for a "more oversight" approach. Not more oversight in the sense of protecting civil liberties and the Constitution, but more oversight from the standpoint of better enforcing the FISC firewalls, so that it was less likely that a fuming court would discover violations of its orders.

all fwiw

but it bugs me that the government is inclined to "grow" it instead of "shrink" it.

James Baker

No, he's not a suspect *grin*

But he is someone who was not in the inner circle or a koolaid drinker and he is someone they (the loyal Bushies at DOJ) had to deal with in connection with the FISA court.

Here's some info from him in connection with a pretty good Frontline program that apparenly no one much ever got to see.


So it is interesting that the Waas article points out that Baker was one of the guys that OPR really wanted to talk to in connection with the Gonzales investigation. Baker is supposedly the guy who had to tell FISC that their firewalls were being disregarded and suddenly he's the one they want to talk to about - - - Gonzales? To me, that makes the most sense if Gonzales was trying to get DOJ to lie to the court and cover up the firewall breaches and sign off on a certification that was demonstrably false at that point in time.

And I meant, cboldt, to not just quote your:

but it bugs me that the government is inclined to "grow" it instead of "shrink" it.

and leave it hanging at the end, but to also say, AMEN.

Check this out. The FISC has ordered the government to respond to ACLU Motion to obtain the FISC order approving, then not approving the surveillance orders. That is, the stuff from January and then March-May this year.

Balkinize: Now, This is Interesting

Interesting, indeed. The government has until August 31 to reply.

I comment on the FISC Order at FISA Court Order re: ACLU Motion to Unseal

Long story short, this Order is dead in the water, as a matter of law. It may stir some public debate, but that is the only thing it is capable of producing.

How many blogs you got? Cliff Notes analysis: could be wrong, but so far I am not biting on the jurisdictional bar; however, the classification argument is problematic for the good guys (yes that is what I generally consider the ACLU).

-- How many blogs you got? --

Two. The technorati link shows 'em both. I mostly follow the Senate, but have a few other significant interests that wouldn't fit well under that umbrella.

Yeah - I backed off on the jurisdictional bar. Especially for a motion to unseal.

I'm not clear on the timing of the previous go-round, on "the wall," becoming public. the CRS publication seems to indicate the FISC decision was made public by the Senate in August, following which amicus briefs by ACLU, etc. and the FISCR ruling known as "In re: Sealed Case."

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