Republicans Back Sound Minimization Oversight

by emptywheel

I'm watching HJC's first hearing on FISA Amendment, and I think the Republicans may be giving us a superb opportunity to address one of the big problems of the FISA Amendment.

You see, the Republicans have no fucking clue that the reason McConnell chose the Republican bill over the Democratic one is because it removed all oversight over minimization.

Thus far--and at 12:04 we've only had questions from 3 Republicans--Dan Lungren has already said the way to deal with concerns about civil liberties is to ensure the minimization procedures protect Americans. And the designated Republican shill, Robert Turner, said precisely the same thing.

Since the absence of any way to do that is one of the big defects with the current bill, I propose we use these public Republican comments to push a revision of the minimization oversight to ensure the Administration can't sneak into my underwear drawer.

Comments

[Jodi]

emptywheel,

if you are going to generate these threads at your current rate, then perhaps you need to increase the number of Recent Posts listed over on the right. People don't get to comment before the Posts have dropped out the bottom of the Recent Posts list. You are only keeping 10 over there now.

[drational]

12:33 and the panelists are now talking about liberty in response to Lee interrogation.
Still haven't seen any indication that anyone talking can delinieate the exact scope and limits of the revision...

[katie jensen]

From your fingertips to their ears, E.W.

(that didn't sound right and the visual is darn right displeasing.)

From your fingertips to their eyeballs.

(still not right)

Crap, just get them the plan. Yes, sounds good. Do great ideas EVER come from the floor??

[selise]

i'm listening to the HJC hearing also - and my head is about ready to explode. FISA is an "agreement" and not a law the president is required to follow?

and does anyone understand the law they just passed? let alone why?

[drational]

Why in the heck didn't we have hearings before the law was passed?
And who is this Professor?
The president is controlled by a "higher power" than congress?

[drational]

Professor Robert F. Turner:

"And in this instance [FISA before August 3, 2007], it is
absolutely clear that Congress has grossly usurped presidential power. In so doing, it has
contributed to the success of one major terrorist attack and may soon bear responsibility
for others if no quick solution is found."

[cboldt]

-- Why in the heck didn't we have hearings before the law was passed? --

The House passed a functional equivalent of this bill last year. "Minimization concerns" and all.

There are all sorts of smokebombs being tossed out. One is "minimization," and anoter is "warrants for foreign to foreign acquisitions." Smokebombs, like satire, work best when they have some attachment to facts.

[emptywheel]

Turner is kind of stupid (he really hasn't read the new amendments). And he's also completely unaware that BushCo refused any oversight on minimization.

[bmaz]

Katie Jensen - "Do great ideas EVER come from the floor??" Well, sometimes late into Drinking Liberally sessions.....

[selise]

"The House passed a functional equivalent of this bill last year."

cbolt - do you have resolution number for that bill? thanks!

[drational]

Rep Cohen just called for James Comey to be nominated as AG.
Fat chance.

[cboldt]

-- do you have resolution number for that bill? --

Noted here (TNH) on August 12, 2007 at 13:38

[emptywheel]

Argh!!

Rep Cohen just said, effectively, "If Bush appointed Jim Comey, this law would be okay."

I appreciate the attempt, presumably, to give Bush a reason to appoint Comey (not that it'll happen). But you need laws first before you have a rule of law.

[selise]

cbolt - thank you, i should have remembered that!

[katie jensen]

Bmaz,

Yeah, like "why don't I just wait here until the room stops spinning..."

That's a good idea from the floor...

[drational]

They are still missing 503b changes that allow sifting or mining of Domestic-Domestic data:
the approved bill merely requires the acquisition to be information CONCERNING persons reasonably believed to be outside the United States. This means the approved bill allows warrantless acquisitions of any communication that "concerns" foreigners. THIS BILL ALLOWS ACQUISITION OF PURELY DOMESTIC COMMUNICATIONS if it concerns foreigners. In other words, this bill permits data mining looking for "foreign" keywords in ALL of the communication traffic.

[emptywheel]

drational

The former CIA lawyer hit that liberally early on.

Turner has no fucking clue that they gutted the minimization oversight.

[drational]

I suspect Turner knows but doesn't care.
Executive Privilege is a "higher power".

Missed the domestic-domestic discussion. any highlights?

[emptywheel]

Nope, but the CIA lawyer addressed it very specifically, in her prepared comments and a bit of follow-up--she has made clear distinction between the two, and actually raised the possibility that a stored email would fall under that part of the law.

[cboldt]

The new "clearly erroneous" review is directed at exactly ONE finding. And that ONE finding has little, if anything to do with "minimization."

The ONE finding that FISC -must- render, to the standard of "clearly erroneous," is to the logic the snooper uses to conclude that a snoop has one end foreign. That's easy, "we snoop on wires that enter the US from outside the US."

The DNI/AG's statement relating to minimization pertains to a statement/certification that justifies an individual order to (probably) a telecom, and a telecom who owns the US-end of the international wire. That "minimization" regime is supposed to be -exactly- as protective of US privacy interests as minimization procedures that were submitted to FISC for approval before the snoop. But ... certain factors must be in play before FISC would look at the certification. As a practical matter, I think the DNI/AG can prevent the FISC from -ever- viewing the certification. They could put blank pages in the sealed package.

The law provides that a "frivolous" challenge (by a telecom) does not result in viewing the certification. As long as the snoop order is directed at a wire that crosses a US border, a challenge to the snoop order is "frivolous."

[Darclay]

Comments
emptywheel,

if you are going to generate these threads at your current rate, then perhaps you need to increase the number of Recent Posts listed over on the right. People don't get to comment before the Posts have dropped out the bottom of the Recent Posts list. You are only keeping 10 over there now.

Read faster!

EW are any of these congressmen qualified to (lawyers who practice fisa laws) actually understand what they are doing. seems to me that would be a prerequsite to sit on this commitee.

[Mary]

Amen on needing laws first EW - and you need CONSEQUENCES for breaking the laws, consequences that apply to the President, the Dir FBI, the AG, the DOJ, the NSA head, the NSA eavesdroppers, the telecoms - CONSEQUENCES.

Here is the result of all the Democratic "nicey nicey" post 9/11.

In so doing, it has contributed to the success of one major terrorist attack and may soon bear responsibility for others if no quick solution is found."

No one has ever chosen to nail Hayden's hide to the wall over his failure to cooperate, the failure to stay on top of the bin laden intercepts they had despite the CIA and FBI and Clarke "hair on fire" aspects. No one has ever called bull on the fact that the illegal program would have done anything to prevent 9/11, when the CIA report (and how many of the stories on that report that mentioned failings at NSA FAILED to mention that Hayden - the head of the failing grade NSA effort, is now promoted to the head of the CIA that is still in the torture and kidnap and no consequences business? No one has challenged his lack of candor when testifying before Congress and the real issues that still exist.

All the illegal and illicit surveillance in the world and they have done LESS WELL at being able to figure out where bin laden is and what he is up to than they did under the legal program - where they had lots of info, they just weren't sharing it or translating it.

So idiot shills get by with inventing a fairy tale and the crap that keeps getting repeated, over and over, becomes the reality.

http://www.washingtonpost.com/wp-dyn/content/article/2007/09/03/AR2007090300933_pf.html
discussing a Center for Disease Control pamphlet on disease truths and myths and the way in which people processed the informtaion:

he found that within 30 minutes, older people misremembered 28 percent of the false statements as true. Three days later, they remembered 40 percent of the myths as factual.

Younger people did better at first, but three days later they made as many errors as older people did after 30 minutes. Most troubling was that people of all ages now felt that the source of their false beliefs was the respected CDC

Iraq/911
Illegal programs are needed to save us.
Torture is good.
Kidnapping children is fun for the whole CIA.
Congress sux.

[selise]

"Missed the domestic-domestic discussion. any highlights?"

i'm recording the audio and will post an mp3 later today.

[drational]

Just reviewed the Spaulding written testimony- she pretty much nails the breadth issues. I take it back my earlier comments that the witnesses are not informed....
hopefully the committee members and congressmen will become informed.
I still lament that the discussion did not occur before the law was passed.

[drational]

So here is Davis;
He cast his vote to expand wiretapping authority, because he trusts the next person in the white house will be responsible.

Cut his mic.

[emptywheel]

Artur Davis, beating up on Turner:

Expansive portrait of an executive, idea that he'll be restrained. What I worried most about when I cast this vote. Bush Administration has no history of executive restraint. I trust the next person will be much wiser in the use of those powers. What has made it near impossible to establish bipartisan consensus around these issues, people on your side of the aisle have taken the position that you're not sufficiently serious about security. The consequence of that kind of rhetoric, a sharp partisan divide, over issues that six years ago commanded a broad consensus.

If Administration takes this law and treats it as cavalierly as the war in Afghanistan, as the PATRIOT act, if this authority is pushed in the direction that this Administration is capable of pushing it, it'll have a long term relationship between exec and leg.

Of course, that all suggests Davis shouldn't have voted for the damn thing. But it was an interesting rant.

[drational]

Davis:
I'm giving the admin another chance to prove they can be trusted....

Of course, the way the update is set up YOU WILL NEVER KNOW whether the Administration is abusing their power.

JEEBUS!

[cboldt]

-- He cast his vote to expand wiretapping authority, because he trusts the next person in the white house will be responsible --

Policy by personality. What do you expect? That's how Congress works, and that's how elections are won -- popularity contests decided by a gullible public.

EW - thanks for the link to the hearing. I'd have missed it otherwise.

[eyesonthestreet]

Let us not forget this conversation:

"RICE: I remember very well that the president was aware that there were issues inside the United States. He talked to people about this. But I don't remember the al Qaeda cells as being something that we were told we needed to do something about.

BEN-VENISTE: Isn't it a fact, Dr. Rice, that the August 6 PDB warned against possible attacks in this country? And I ask you whether you recall the title of that PDB?

RICE: I believe the title was, "Bin Laden Determined to Attack Inside the United States."

Now, the...

BEN-VENISTE: Thank you.

RICE: No, Mr. Ben-Veniste...

BEN-VENISTE: I will get into the...

RICE: I would like to finish my point here.

BEN-VENISTE: I didn't know there was a point."

from:http://www.cnn.com/2004/ALLPOLITICS/04/08/rice.transcript/index.html

[eyesonthestreet]

on the conversation quoted above:

Just drive home the point, that was August 6, 2001, in case you forgot. Trust them?

[bmaz]

Why doesn't someone enterprising ask why we even have a FISC if this is to be the protocol scheme; as their ability to determine anything is fully dependant on the AG transmitting honest certifications?

[selise]

here's the audio file of the hearing, for anyone who missed the hearing and is interested...

[cboldt]

-- their ability to determine anything is fully dependant on the AG transmitting honest certifications? --

Other than the trivially easy job of showing a snoop order is limited to international wires, the ability of the FISC to determine anything is also fully dependent on a order recipient (e.g., AT&T) challenging the order, and the Court finding the challenge to be non-frivolous.

And the Congressional hearings haven't yet reached the point of asking "what is to be done with the information?" questions.

[bmaz]

Um, yeah. Precisely. With no one to supply them with credible information, and no one to request it (at least with standing/jurisdiction/ whatever); exactly what is it that the FISC is going to do at this point and why should they even exist?

[cboldt]

-- exactly what is it that the FISC is going to do at this point and why should they even exist? --

There is some amount of foreign intelligence information acquisition activity outside the FISA-2007 framework. See, for example, bugs, to less than 100 targeted people inside the US and activity that involves physical entry.

What will be interesting will be the change in number of FISA orders issued. One might expect a radical reduction in volume from the present clip of about 2,500 orders per year. So, instead of having eleven FISA judges (recently increased from seven), the system could get by with one part-timer.

At the other end, there is also some amount of activity as prosecutors use FISA-related acquisitions to support cases and defendants petition to have FISA-related acquisitions excluded from their trials. Somebody has to keep the lights on at the FISC until the possibility for cases is extinguished.

[bmaz]

Well, ok, you know i was not talking about a skeleton crew for clean up....

[freepatriot (in black)]

if you are going to generate these threads at your current rate, then perhaps you need to increase the number of Recent Posts listed over on the right. People don't get to comment before the Posts have dropped out the bottom of the Recent Posts list. You are only keeping 10 over there now.

Posted by: shitstain | September 05, 2007 at 12:17

so emptywheel writes too fast for the shitstain to keep up

how many of us are surprised that the shitstain can't keep up, show of hands ???

(crickets)

hey shitstain, we already know you're "a little slow"

try telling us something we don't know

[eyesonthestreet]

Wasn't the whole gist of the repubs, "starve the beast?" i guess that is thier ultimate goal.

here is John Dean on conservatives, which i have yet to read, but he helps explain the unexplainable: " How Conservatives Think (Or Fail To Do So) ", a paragraph heading from his findlaw article;

http://writ.news.findlaw.com/dean/20070905.html

[dead last]

A good political ad this election cycle would be to have a middle aged couple sitting around the dining table,, drinking coffee saying,

Him:
"When I voted for George W Bush, I thought I would be safer. I didn't know that he didn't believe in protecting my rights."

Her:
"Now the government is reading my emails, checking my medical records, and monitoring what shows I watch on TV."

Him:
"Not that we did anything wrong, it is just that we have taken a couple of trips on foreign airlines (Her: they were cheaper), called our daughter who is studying abroad in Vienna a couple of times a week. It just so happens that someone who the government believes is a terrorist has similar calling and travel patterns. So know the government is watching us."

Her:
"And we don't think that is right."

Him:
"Its not American....But we can't do anything about it."

Voiceover:
"GWB has pushed legislation through congress that gives him, not the courts, the right to issue search warrants on Americans who have done nothing wrong. Yet their financial data, thier shopping patterns, thier travel destinations, and thier internet usage has all been collected and analyzed. And if their behavior is similar to that of what the government says is similar to that of a terrorist, the government can search your home, your financial dealings, and everything about you. And you can't do anything about it. Hiring a lawyer won't help because Bush and his cronies have removed this program from review by the courts. Funny thing is that the Republican members of Congress who voted for this bill didn't realize that Bush removed the most basic of Constitutional protections -- Court Oversight."

[holleahock]

OT

Scene of the (non-)crime
Submitted by ryanteaguebeckwith on September 5, 2007 - 12:37pm.

Tags: Duke University | John S. and James L. Knight Foundation | Kobe Bryant | lacrosse | Mike Nifong | Reggie Walton | Richard Brodhead | Scooter Libby | Under the Dome

It will be an academic conference held at the scene of the crime.

Duke University's law school hold a conference later this month with a very Mike Nifongish flavor: "The Court of Public Opinion: The Practice and Ethics of Trying Cases in the Media," Rob Christensen reports.

Nifong, of course, was the former Durham district attorney, who had a lot of very unflattering things to say about four Duke lacrosse players acused — wrongly as it turns out — of rape.

The panelists will include Judge Reggie Walton, who presided over the Scooter Libby trial, and Harold Haddon, who defneded Kobe Bryant against charges of sexual assault. Duke President Richard Brodhead will participate.

The conference will be held Sept. 28-29 at the Duke Law School. It is sponsored by grant form the John S. and James L. Knight Foundation.

[bmaz]

holleahock - There are other extremely bright and famous intellectuals participating in that forum. In fact, one of them authored the post you have commented at.

[emptywheel]

Um, holleahock,

There's a new media panel--I'm participating too.

[cboldt]

Did Professor Robert F. Turner read his entire statement at the hearing?

Man, that has some extremely inflammatory rhetoric in it.

More than a few non sequiturs too. [my paraphrase] "You (Congress) are going to be in trouble if you pass a law that is so bad, the president doesn't follow it (because it impinges on a constitutional power) and the country has another terrorist attack." Huh?

His (and Suzanne Spaulding's) prepared remarks are useful to markup/critique. I don't think either one is "on the money," but both raise good issues, and each raises some issues that the other doesn't. Sometimes inadvertently by making extreme or erroneous claims, etc.

[emptywheel]

cboldt

I hadn't turned it on yet, but I doubt it.

[bmaz]

Gee, it was real nice of Bullet Bob Turner to give us a picture of himself in his prepared statement. That way we always be certain of who the biggest jackass there was.

[freepatriot (in black)]

Yo, emptywheel, you're gonna be a part of a panel discussion ???

since when did DFHs get invited to panel discussions

oh, wait, nevermind ... /Emily Latela

along with discussing the Duke University case, and the Kobe circus, I hope you discuss Michael Vick"s case as well

we need a national discussion regarding the celebrity criminal defendants who proclaim their innocence this week, and then plead guilty next week (and maybe a discussion of the rare people like senator craig who do the opposite {WTF ???})

idiots who falsely proclaim their innocence and then plead guilty to the charges that they just denied are undermining the presumption of innocence in our society

outside of the problems that ruined Mr Nifong, there is a serious problem in America with famous criminal defendants lying to our faces

when I hear a celebrity defendant say he looks forward to clearing his name, I start the timer to measure how long the guilty plea will take to clear the Judge's desk

"and the Men who hold high places, must be the ones who start, to mold a new reality, closer to the Heart" Neil Pert

nuff said ???

[cboldt]

Some FISA related stuff at this link at Howard Bashman's HowAppealing.law.com

Including a link to a D.D.C. decision on an EPIC/ACLU FOIA request for FISC material. More or less following the path that the government argues should be taken. FN 5 is the D.D.C. expressing frustration at being stiffed by the DOJ.

[Mary]

bmaz - left a long answer with quotes for you on the Scottish thread, but short answer is, "I'd like you for my lawyer please."

Congratulations on the panel EW. I know its not the favorite topic, but I'd sure like some explanation of how Comey's Padilla presser, using the press to try a non-existent dirty bomb case (for the purpose of leaving an American in military abuse that a Pentagon report issued just the month before the presser said violated the Geneva Conventions) was whole lots different from Nifong's presser. I realize the difference in result - adulation, cushy landings, Senators sucking up over your integrity, etc. v. disbarrment and public shame, but I'm thinking there were some steps I missed.

[mighty mouse]

Mary and bmaz--I'd like you both for my lawyers, please. Ironically, the last few times I entered guilty please was in Hennepin County, Minnesota, and I ended up doing eight days of a ten day sentence (two off for good behavior) in the Hennepin County Workhouse. I had trespassed at Honeywell in a nuclear protest with hundreds of others. It was a life-changing experience. The women inmates were--what?--unbelievably fine human beings. And that's pretty much why I don't practice law anymore. Anyway, the Hennepin County Workhouse may not be all that Craig fears it is....

[Jodi]

Well, I can see that the remark about 10 Recent Posts showing over on the right being too few, left me open for a few "slow reader" comments, but I am talking about followups to interesting dialogues.

I know how to go below the thread blocks, or even go to the archives, but it would be easier at this generation rate to be able just to click on the pointers to the right under Recent Posts.