FISA Overhaul Set to Clear Senate

[ONEBADMK8]

Tim Starks
CQ Politics
June 24, 2008

Despite a deep divide among Democrats, the Senate is expected to clear legislation this week overhauling electronic surveillance rules that would grant President Bush much of what he has sought in a lengthy struggle with Congress.

With no senators threatening to hold up the bill (HR 6304), one of the last hopes for opponents faded June 20 when Democratic presidential candidate Sen. Barack Obama of Illinois announced he would vote for the legislation. Some civil liberties groups that oppose the measure had called on Obama to use his position in the party to derail it.

The bill to rewrite the 1978 Foreign Intelligence Surveillance Act (FISA, PL95-511) would almost certainly lead to the dismissal of lawsuits against telecommunications companies accused of aiding the Bush administration’s warrantless surveillance program. In the House, the measure passed with the support of 105 Democrats and 188 Republicans.

Senators agreed to take up the measure quickly and could clear it as early as Monday.

If the Senate clears the bill, it will give Bush much of what he wants in terms of spying powers and protection for the telecommunications companies.

“My director of national intelligence and the attorney general tells me that this is a good bill,” Bush said on June 20, shortly before the House passed the measure. “It will help our intelligence professionals learn our enemies’ plans for new attacks. It ensures that those companies whose assistance is necessary to protect the country will themselves be protected from liability for past or future cooperation with the government.”

Opponents Counted on Obama
With Congress on the verge of delivering the bill to Bush’s desk, some opponents had sought out Obama to take a stand.

“I would call on Senator Obama to be as vocal as possible in the coming days and weeks and lead his party on this issue,” Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, said prior to Obama’s announcement that he would support the bill. The foundation has filed one of the lawsuits against the telecoms.

Obama voted against the White House-backed bill that passed the Senate in February (HR 3773), and his campaign released a statement last year expressing concern about that bill’s “provision on giving retroactive immunity to the telephone companies.”

While a statement released by his campaign acknowledged that the new legislation would probably result in immunity for the companies, Obama indicated he would support the measure but monitor its results.

“It is not all that I would want,” Obama said. “But given the legitimate threats that we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay.”

Obama said he would try to get the immunity provision stripped, but previous votes to do so in the Senate have failed.

It is scary that the senate is giving over permission for more invasion of personal privacy. The pervasion - perversion- of privacy that is ongoing currently is gross enough.
Though mainstream media has been censored for a long time, there are still things to be learned from it.
Today the network news reported that companies already record people’s computer keystrokes, something many of us have been aware. But it wasn’t reported outright. It was something said in the works, and people are complaining, because they don’t realize this has been happening illegally for quite some time.
The machine is already working, now it’s looking for public validation and acceptance.

 

[shagdrum]

The bill to rewrite the 1978 Foreign Intelligence Surveillance Act (FISA, PL95-511) would almost certainly lead to the dismissal of lawsuits against telecommunications companies accused of aiding the Bush administration’s warrantless surveillance program.

Of course the Dems wanna get the immunity provisions stripped. Their biggest campaign donors are the trial lawyers.

"Accused of aiding the Bush administration's warrantless surveillance program"...and that is somehow a crime?

This article conveniently leaves out the fact that the telecomms aren't involved in wiretapping and that the calls eventually warrantlessly wiretapped as a result of this program are international calls. In fact the article is conveniently vague on the details of what the law actually states and what the telecomms are actually doing.

There is no illegal activity going on here.

 

[ONEBADMK8]

Do you live in a refrigerator?

They listend to ALL contacts foreign & domestic, NO NOTHING ILLEGAL going on here, EVEYTHING OVER THE FIBER OPTIC NETWORKS WAS RECORDED< ALL OUR $HIT MAN! Phone, emails, keystrokes, everything!!

Do you smoke pot all day dude, for real man?

 

[shagdrum]

They listend to ALL contacts foreign & domestic, NO NOTHING ILLEGAL going on here, EVEYTHING OVER THE FIBER OPTIC NETWORKS WAS RECORDED< ALL OUR $HIT MAN! Phone, emails, keystrokes, everything!!

I don't buy into groundless conspiracy theory nonsense.

All this guy can credibly confirm in any way is that certain signals are redirected into a single room. He said himself that he never went in the room and doesn't know what goes on in there.

To say that "all contacts, foreign and domestic" are being recorded is a gross exaggeration without any foundation. As well as the Olbermann groundless exaggerations of, "without any warrant", "with out any mechanism to separate foreign and domestic calls" and "without separating suspect from citizen". That is nothing but groundless hyperbole; conjecture.

Neither of these two can know what is going on in that room. They have no idea what warrants were obtained and what they are and are not listening to. The most they can say is that room was wired to be able to listen in on the signals running through that building.

Just because something is possible doesn't mean it is probable. To say that, because the room is wired to be able to listen in to all communications running through that building, obviously that is what they are doing, without any warrants is a gross non sequitur.

What we know is that the telecomm's provided specific info on phone records to the federal government (namely, the record of the phone number, and the numbers it called, no names). The Supreme Court has ruled that info is not private information in a 1979 case called Smith v. Maryland because there is no "reasonable expectation of privacy". No warrants are necessary.

If a number is red flagged in that program, warrants are obtained, if necessary, for follow up under an executive order issued by Bush in 2002 authorizing the NSA to conduct warrantless surveillance of international telephone and internet communications. The order only allows for monitoring entirely domestic communications after first obtaining a warrant.

This room is most likely the room they are monitoring certain communications that have been red flagged after running through the data-mining program. It is safe to assume that warrants have been obtained when legally required; in other words domestic communications.

FYI: this article explains the program and the appropriate legal issues behind it more accurately, and in greater detail then anything you have offered.

Do you have anything more then baseless conjecture and non sequiturs to back up your absurd claim?

 

[fossten]

Shag, in all fairness, this surveillance tech should have more oversight than it does. It's healthy to distrust government, and our current gov hasn't exactly shown itself to be trustworthy. I'm not saying you should accept all accusations as fact, but is it not at least fair that we demand enough transparency to be certain that the gov a) Is NOT intercepting and listening to everything and b) CANNOT do so in the future without our permission?

You know better than to just accept the "I'm from the government and I'm here to help" sales pitch.

Edit: Thanks for the link. It was very informative. It's interesting to see the Dems bleat about our civil liberties (read: the First) while continually working to undermine our civil liberties (read: the Second).

 

[shagdrum]

Shag, in all fairness, this surveillance tech should have more oversight than it does. It's healthy to distrust government, and our current gov hasn't exactly shown itself to be trustworthy. I'm not saying you should accept all accusations as fact, but is it not at least fair that we demand enough transparency to be certain that the gov a) Is NOT intercepting and listening to everything and b) CANNOT do so in the future without our permission?

You know better than to just accept the "I'm from the government and I'm here to help" sales pitch.

Edit: Thanks for the link. It was very informative. It's interesting to see the Dems bleat about our civil liberties (read: the First) while continually working to undermine our civil liberties (read: the Second).

I understand that. But you really can't have too much transparency when it comes to covert ops and intelligence gathering, which this would qualify as. In an instance like this, the government should get the benefit of the doubt until there is something to substantiate a claim like this. Then, they get held to a very high standard.

Besides, I doubt the government even has the physical capability (manpower) to listen to every communication. The data-mining program weeds down those that need to be listened to, then warrants are obtained as necessary.

There is more then enough info on this available. It is just not put out there by the mainstream media due to BDS. They pick and choose what aspects to put out there that will help paint Bush in a bad light. Rarely, if ever, are the legal aspects of this issue clearly broken down. That article that I posted explains this better then anything you would get in the mainstream media.

Fossten, I think you know that the government tends to be a more reliable source of info then the mainstream media, especially when a Republican is in the White House. Not because the government is overly trustworthy, but because the decided liberal bias and agenda of the mainstream media makes them nothing more then a quazi-propaganda machine against Republicans, for the most part. This is magnified when it comes to Bush and BDS.

Rarely is there ever even a distinction made between domestic and international communications, or is FISA explained as only applying to international communications in the mainstream media. The impression you are left with in the mainstream media is that FISA covers all communications, which is wrong. You also never hear of the KATS rule, or the Supreme Court case of Smith v. Maryland in the mainstream media when discussing the warrantless wiretaps. But you do hear FISA and vague allusions to the 4th Amendment (which they never point out, doesn't cover FISA, or international communications at all).

When it comes to transparency on this issue, look at the media who has been actively and intentionally obfuscating this issue. If they are stonewalling, then a lack of transparency (as much as can reasonably be expected on intel gathering) is more their fault. The "lack of oversite" on this issue is simply the distorted picture painted in the media.

Even most of the alternative media hasn't done a very good job explaining this. Rush, Hannity, O'Rielly, Beck, never break down this issue as adequately as they should, IMO.

I didn't have much of an understanding of this issue until I was forced to study it for a political science class; specifically a constitutional law class. Then I researched it and found how much the media was distorting this.

This story is mostly hyperbole and conjecture. This specific example cited here by Geno is taking the given fact of this room and spinning it negative. Nothing more. The negative claims are just assertions that do not follow from the confirmed facts.

 

[Marcus]

Shag, your article describes a program (collection of phone records) that is separate and distinct from the NSA spying program altogether and has nothing to do with FISA whatsoever.

I think it is you who doesn't understand FISA. It has everything to do with the Fourth Amendment. The whole purpose of FISA was to ensure that the government isn't spying on American citizens, and was primarily a reaction to Nixon's spying on and infiltrating anti-war and civil rights groups in the 60's.

FISA only comes into play if ONE of the parties in a targeted overseas communication is an American. In that case, a warrant is required, as per the Fourth Amendment. It places no restrictions on foreign to foreign communications whatsoever, and it never has. So the argument that some people (terrorist-loving Democrats and the ACLU) are trying to prevent us from spying on terrorists overseas is complete and utter BS. There is no one who is opposed to that.

I'd also remind you that it wasn't the Democrats who held this up. Congress proposed nearly identical legislation months ago, but without the telecom immunity provisions, and Bush promised to veto it. If it was so damned important to get the program back on track immediately, and if precious intelligence was being lost, why did Bush presumably put people's lives at risk over something that could have been dealt with separately?

The assertion that the telecoms needed to be protected from lawsuits is bunk. If the kind of things they were doing was indeed lawful, as the administration insisted, then they had nothing to fear from lawsuits other than an annoyance. They would have been thrown out eventually. Yet one telecom refused to participate in the program (Quest as I recall), so there were obviously some serious questions about it from some quarters.

If the objections to the lawsuits were about revealing methods, those details could have been kept sealed by a judge. The only logical conclusion, then, is that the administration was deathly afraid that the lawsuits would reveal activities that were either very questionable legally or massive and blatant disregard for the law completely. Knowing Bush's utter contempt for the rule of law and the concept of checks and balances, I would assume the latter.

But with this immunity provision, we'll never know the scope (size) of the program, or the legality or illegality of it. And let's not be naive here. Everyone (including the terrorists) expects our government to be intercepting terrorists' communications. So it's not like we're giving away any secrets. What we don't expect is for our government to be scooping up every single communication that Americans make. We don't know that that is happening, but we don't know that it isn't either, and that is why this bill is so bad. What little oversight it provides is nothing but window dressing.

So the issue is this: Are the intelligence agencies listening in on specific targets or are they just applying a vacuum cleaner approach, pulling in every call that goes through the cables for later analysis? The latter is a clear violation of the fourth amendment. The SCOTUS has ruled in the past that phone taps do qualify as a "search" per the Fourth Amendment. So if they're scooping up phone calls involving American citizens, it is unconstitutional and illegal, period. And the last line of the fourth amendment doesn't say "unless we're cowering in fear". I'd also remind you that the presidential oath of office says:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.​

Note that the preservation of the Constitution is placed above all other considerations. It is the president's highest imperative. It doesn't say "I will protect the American people no matter what has to be done". If you want a leader who will keep you absolutely safe and secure, then move to North Korea. (I'm addressing this to Bryan specifically)

 

[ONEBADMK8]

Well said!!!!

 

[shagdrum]

FISA stands for Foreign Intelligence Surveillance Act. It only deals with international and foreign communications.

The 4th Amendment only deals with domestic communications. The big reason for this is that any international or foreign communications have at least one end of the communications in an area where the constitution does not apply, and has no jurisdiction.

There is also no assurance of a reasonable expectation of privacy in any international calls. That is why challenging this in the Supreme Court wouldn't stand up to scrutiny. When it comes to the 4th Amendment, they use what is called the KATZ rule stemming from a 1967 case called KATZ v. United States. The court ruled that 4th amendment protections against unreasonable searches and seizures comes into play if there is a "reasonable expectation of privacy". There is no "reasonable expectation of privacy" in international communications, or internet traffic, for that matter.

For these two reasons (jurisdiction of the constitution, and failing to meet the Supreme Court's standard for 4th Amendment protection), the 4th Amendment has nothing to do with international communication.

You are right that the creation of FISA was an attempt by Congress to extend 4th Amendment protections to international communications. But that is beyond there power to do. Intel gathering on foreign enemy's falls under the sphere of foreign policy, which is the realm the executive, per the constitution. Congress does not have the authority to redefine the powers of the president. Therefore, FISA is unconstitutional (this is also why the War Powers Act is technically unconstitutional as well).

This in not mere conjecture, either. This is supported by a number of credible sources...

The FISA court ruled in 2002, "We take for granted that the President does have [inherent authority to conduct warrantless searches to obtain foreign intel] and, assuming that is so, FISA could not encroach on the President's constitutional power."

According to a panel of former FISA judges testifying before the Senate Judiciary Committee, the prez has, "constitutional authority to spy on suspected international agents under an executive order."

One of the authors of FISA, judge Allan Kornblum said, "If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now. I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."

The Second Circuit Court of Appeals stated, in the case of United States v. Dugan (1984), "Prior to the enactment of FISA, virtually every court that had addressed this issue had concluded that the president had inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillance constituted an exception to the warrant requirements of the Fourth Amendment."

Here are a few other appellate cases that uphold this precedent:
United States v. [Cassius] Clay (5th Cir. 1970)
United States v. Butenko (3rd Cir. 1974)
United States v. Buck (9th Cir. 1977)
United States v. Trong (4th Cir. 1980)

John Hinderaker wrote a pretty good piece on this issue here.

As you can see, it is pretty conclusive that wiretapping international communication to gather foreign intel doesn't require a warrant. FISA is an unconstitutional attempt by Congress to overstep it's bounds, and hardly legally binding. The 4th Amendment doesn't apply at all to this type of wiretap on international communications.

 

[shagdrum]

Now that I have gotten all the legal crap out of the way...

Shag, your article describes a program (collection of phone records) that is separate and distinct from the NSA spying program altogether and has nothing to do with FISA whatsoever.

When it was discover that the telecomms were assisting the government , it was distorted to mean that there was warrantless spying on phone conversations going on. All the telecoms are doing is giving them access to phone records. That is the fact that all this is based on.

The room in Geno example is just a room that we know all communications traveling through that building are run through. We don't know what is going on in there, and any assertion of what is going on in there is mere speculation.

It could very well be that they simply have computers in there that record the phone numbers between every call when the calls are made (beginning and end points of the communications). We do know that the telecomms are giving the government that specific info on the phone records and that no warrant is required for that info. There is no indication that anything more is going on with regards to phone conversations. No one ever saw any federal agents (who would be doing the spying) going into or out of these rooms.

FISA only comes into play if ONE of the parties in a targeted overseas communication is an American. In that case, a warrant is required, as per the Fourth Amendment. It places no restrictions on foreign to foreign communications whatsoever, and it never has. So the argument that some people (terrorist-loving Democrats and the ACLU) are trying to prevent us from spying on terrorists overseas is complete and utter BS. There is no one who is opposed to that.

So, communications between a terrorist organization in the middle east and a terrorist cell here in America have nothing to do with collecting intel on terrorism (at home or abroad)? I think you know better then that.

I'd also remind you that it wasn't the Democrats who held this up. Congress proposed nearly identical legislation months ago, but without the telecom immunity provisions, and Bush promised to veto it. If it was so damned important to get the program back on track immediately, and if precious intelligence was being lost, why did Bush presumably put people's lives at risk over something that could have been dealt with separately?

As I showed, FISA isn't legally binding. He could just issue an executive order and override FISA. Spinning it as "the democrats are putting us at risk" is just spin to achieve a political end, nothing more. He can constitutionally disregard FISA at his leisure.

The assertion that the telecoms needed to be protected from lawsuits is bunk. If the kind of things they were doing was indeed lawful, as the administration insisted, then they had nothing to fear from lawsuits other than an annoyance. They would have been thrown out eventually. Yet one telecom refused to participate in the program (Quest as I recall), so there were obviously some serious questions about it from some quarters.

That "annoyance", as you put it, is a really big one. They still have to go through the legal process to be found innocent, and that costs money; lots of it (not to mention bad PR). This is part the reason that malpractice insurance for doctors is so high; frivolous lawsuits. If they get sued, they incur a lot of legal fees. Even if they settle out of court to avoid the bad PR and legal fees, it still costs them lots of money.

If the telecomm have to incur lots of debt to assist the federal government, they are going to be reluctant to assist and eventually fight it. Bush needs the lawyers off the telecomms back to get their assistance.

I assume you have heard the term "follow the money", so lets do that...
Using Federal Election Committee data,the Center for Responsive Politics made a list of the top twenty Political Action Committees (PAC). In the 2000 election, the Association of Trial Lawyers of America gave more money ($2,661,000) then all "Republican/Conservative" PAC's on the list combined ($2,599,663)!

According to the director of the Center for Responsive Politics, "no matter how you look at it", lawyers were the biggest contributors to the 2000 elections, and their contributions are overwhelmingly Democrat.

By September of 2000, trial lawyers contributed only $13,500 to Republicans, while contributing over $7 million to Democrats. Between January 1, 1999 through June 30, 2000, lawyers contributed over $11 million to the presidential campaign. When you include soft money and other political donations, the legal profession spent over $100 million on the 2000 election; 30% to Republicans and 70% to Democrats.

The fact that the telecomms need legal immunity says more about the need for tort reform then it does about the legality of what the telecomms are doing. The fact that Bush has had trouble getting this through congress says more about the special interests that the DNC is beholden to then anything else.

So the issue is this: Are the intelligence agencies listening in on specific targets or are they just applying a vacuum cleaner approach, pulling in every call that goes through the cables for later analysis? The latter is a clear violation of the fourth amendment.

It depends on what this "vaccum cleaner approach" is doing, as to the legality of it. If they are recording the conversations (including domestic) and later listening to them without warrants when needed, then that would be a violation. If they are simply tracing the numbers called (recording the beginning and end point of the conversation), there is nothing illegal about that, regardless of the distinction between international and domestic communications.

Applying some common sense with known facts rules out one of these options.

It is highly unlikely that the government has the capability to listen into, and analyze every phone conversation. The shear manpower involved would be prohibitive.

We do know for a fact that the telecomms are giving the government phone numbers and the call history of those numbers. The government then takes those numbers and runs them through a database. Any red flags that pop up are followed up on and warrants are obtained as legally required.

It seems pretty clear that the idea that the telecomms are recording every conversation (domestic or international) for the government to go through is highly unlikely.

 

[shagdrum]

In the wake of the September 11th attacks, the Bush administration sought legal opinions as to the war powers of the president; what they are, there boundaries, etc. This has some relevance to this issue, IMO, as it encompasses the powers of the president in regards to foreign policy (which includes gathering intel on foreign threats). If you are interested, you can read one of these opinions here.