Joined: Sun Oct 17, 2004 1:14 am Posts: 37778 Location: OmaGOD!!! Gender: Male
If you've been paying attention, you may have noticed a push by the White House and GOP to pass legislation to amend the Federal Intelligence Surveillance Act before Congress goes on its August break. There's surprisingly enough been Democratic efforts to create compromise legislation as well (the original GOP proposal vested more power in the Attorney General, but there's no way the Dems are going to vote to give Gonzalez any more power at this point).
But WHY? Why amend the law that teh administration seems to be breaking with its warrantless surveillance programs anyway?
Ruling Limited Spying Efforts Move to Amend FISA Sparked by Judge's Decision
By Carol D. Leonnig and Ellen Nakashima Washington Post Staff Writers Friday, August 3, 2007; A01
A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration's wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president's spying powers.
House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court's decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.
The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.
The decision was both a political and practical blow to the administration, which had long held that all of the National Security Agency's enhanced surveillance efforts since 2001 were legal. The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court, and after it finally did so in January the court ruled that the administration's legal judgment was at least partly wrong.
The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA).
"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto in a Tuesday interview.
"This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people," he said. Boehner added that some Democrats are aware of the problems caused by the judge's restrictive ruling and the problems it has caused for the administration's surveillance of terrorism suspects.
"The Democrats have known about this for months," Boehner said. "We have had private conversations, we have had public conversations that this needs to be fixed. And Republicans are not going to leave this week until this problem is addressed."
Commenting on Boehner's remarks, Rep. Rahm Emanuel (Ill.), the House Democratic Caucus chairman, said yesterday that "John should remember the old adage: Loose lips very much sink ships." But Kevin Smith, Boehner's spokesman, denied that the House Republican leader had disclosed classified information.
Any assertion that Boehner spilled secrets "is just plain wrong and distracts from the critical task at hand -- fixing FISA to close the serious intelligence gaps that are jeopardizing our national security," Smith said.
Smith said that Boehner's comments were based on a public, Jan. 17 letter to Congress by Attorney General Alberto R. Gonzales, in which the administration announced that it would allow the NSA program to be reviewed by the intelligence court. That letter said that an intelligence court judge had issued orders "authorizing the Government to target for collection into or out of the United States where there is probable cause to believe" one of the parties is a terrorist.
But the letter referred only to "approval" of a government surveillance request and did not refer, as Boehner did, to the court's rejection of surveillance of specific foreign communications routed through the United States. The NSA surveillance at issue is part of a broader program authorized by President Bush shortly after the Sept. 11, 2001, attacks. Director of National Intelligence Mike McConnell said this week in a public letter that the order covered "various intelligence activities" that he did not describe. "The details of the activities changed in certain respects over time," he said.
Since the existence of the warrantless wiretapping program was leaked to the public in late 2005, civil libertarians and legal experts have accused the administration of violating FISA and engaging in illegally broad data mining of telephone and e-mail records.
The effect of the judge's decision to curtail some of that surveillance was to limit the flow of information about possible terrorism suspects, according to congressional staffers briefed on the ruling. Last week, McConnell told the Center for Strategic and International Studies that the government faces "this huge backlog trying to get warrants for things that are totally foreign that are threatening to this country."
Gaining access to the foreign communications at issue would allow the NSA to tap into the huge volume of calls, faxes and e-mails that pass from one foreign country to another by way of fiber-optic connections in the United States.
"If you're calling from Germany to Japan or China, it's very possible that the call gets routed through the United States, despite the fact that there are geographically much more direct routes to Asia," said Stephan Beckert of Telegeography Inc.
That was not true when Congress passed the Foreign Intelligence Surveillance Act in 1978. The law established much stricter limits on intercepting communications involving people or facilities in the United States. If those limits apply now, for example, to calls from Pakistan to Yemen that pass through U.S. switches, the NSA could lose access to a substantial portion of global communications traffic.
Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.
"It clearly shows that Congress has been playing with half a deck," said Jim Dempsey, policy director for the Center for Democracy and Technology. "The administration is asking lawmakers to vote on a very important piece of legislation based upon selective declassification of intelligence."
In April, McConnell proposed a much broader revision of FISA than what the administration is pressing Congress to approve this week. Under the new plan, the attorney general would have sole authority to authorize the warrantless surveillance of people "reasonably believed to be outside the United States" and to compel telecommunications carriers to turn over the information in real time or after it has been stored.
An unstated facet of the program is that anyone the foreigner is calling inside the United States, as long as that person is not the primary target, would also be wiretapped. On Saturday, Bush in his radio address argued more narrowly that "one of the most important ways we can gather that information is by monitoring terrorist communications." FISA, he said, "provides a critical legal foundation" in allowing the government to collect that information while protecting Americans' civil liberties.
Testifying on the Hill in May, McConnell argued that the law needed to be updated to accommodate technology's advance. "Today a single communication can transit the world, even if the two people communicating are only a few miles apart," he said, alluding to the fact that a significant volume of e-mails and phone calls are routed through the United States.
Democrats announced this week a proposal that would also expand the government's wiretapping authority but would keep it under FISA court supervision. The authority would expire in six months.
This week, McConnell spent hours on the Hill briefing lawmakers. On Tuesday, he gave about 50 senators a classified briefing making the case for the legislation. That briefing included the change in the threat environment, as well as a description of the court development, according to a government source who requested anonymity because the briefing was classified.
"He was not complaining about one judge or another," the source said. "He was saying, 'I need to collect X, but I can only collect Y and we need to change the law on that.' "
_________________ Unfortunately, at the Dawning of the Age of Aquarius, the Flower Children jerked off and went back to sleep.
Joined: Sun Oct 17, 2004 1:14 am Posts: 37778 Location: OmaGOD!!! Gender: Male
OK, so if what's reported in the above story is true, then I don't really have a major problem with a limited fix to FISA. But it appears that is not enough of a power grab for the Bush administration, even though it DOES appear to be enough for the Director of National Intelligence.
Exclusive: Bush Nixed Dem-DNI FISA Deal By Spencer Ackerman - August 3, 2007, 5:11 PM
Today, while standing with Director of National Intelligence Mike McConnell, President Bush lamented the inability of Congressional Democrats to give McConnell the tools he needed to capture the communications of terrorists:
Quote:
When Congress sends me their version, when Congress listens to all the data and facts and they send me a version of how to close those gaps, I'll ask one question, and I'm going to ask the DNI: Does this legislation give you what you need to prevent an attack on the country? Is this what you need to do your job, Mr. DNI? That's the question I'm going to ask. And if the answer is yes, I'll sign the bill. And if the answer is no, I'm going to veto the bill.
And so far the Democrats in Congress have not drafted a bill I can sign. We've worked hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk.
There's only one problem with Bush's statement: it isn't true.
A key Democrat in the negotiations, House Majority Leader Steny Hoyer (D-MD), says that a deal had in fact been reached with McConnell, who has been busy lobbying Congress on a FISA update all week. "We had an agreement with DNI McConnell," Hoyer spokeswoman Stacey Bernards tells TPMmuckraker, "and then the White House quashed the agreement."
A bill that House Democrats put forward today does not require the National Security Agency to seek warrants for surveillance of persons inside the United States -- only that the Attorney General will issue "guidelines" as to how collecting the communications of U.S. persons should operate.
A spokesperson for McConnell, Ross Feinstein, says he is "not going to comment" on "what agreements have been or haven't been reached." He adds that McConnell has been "up front as to what the intelligence community needs, obviously what he proposed on April 13 and put in his statement at 11:35 last night," and that McConnell "continues to work closely with members on the Hill." We have a call out to the White House for comment.
Update: White House representatives haven't responded to our request for comment. We'll let you know what they say if and when they do.
Late Update: I'd be remiss not to mention that earlier this afternoon, Marty Lederman heard the same state of play between Bush, McConnell and the House Dems that this post confirmed.
_________________ Unfortunately, at the Dawning of the Age of Aquarius, the Flower Children jerked off and went back to sleep.
WASHINGTON - The Senate, in a high-stakes showdown over national security, voted late Friday to temporarily give President Bush expanded authority to eavesdrop on suspected foreign terrorists without court warrants.
The House, meanwhile, rejected a Democratic version of the bill.
Democratic leaders there were working on a plan to bring up the Senate-passed measure and vote on it Saturday in response to Bush's demand that Congress give him expanded powers before leaving for vacation this weekend.
The White House applauded the Senate vote and urged the House to quickly follow suit.
The bill "will give our intelligence professionals the essential tools they need to protect our nation," said White House spokesman Tony Fratto. "It is urgent that this legislation become law as quickly as possible."
Senate Democrats reluctantly voted for a plan largely crafted by the White House after Bush promised to veto a stricter proposal that would have required a court review to begin within 10 days.
The Senate bill gives Bush the expanded eavesdropping authority for six months. The temporary powers give Congress time to hammer out a more comprehensive plan instead of rushing approval for a permanent bill in the waning hours before lawmakers begin their monthlong break.
The Senate vote was 60-28. Both parties had agreed to require 60 votes for passage.
Senate Republicans, aided by Director of National Intelligence Mike McConnell, said the update to the 1978 Foreign Intelligence Surveillance Act, or FISA, would at least temporarily close gaps in the nation's security system.
"Al-Qaida is not going on vacation this month," said Sen. Republican leader Mitch McConnell of Kentucky. "And we can't either until we know we've done our duty to the American people."
In the House, Democrats lost an effort to push a proposal that called for stricter court oversight of the way the government would ensure its spying would not target Americans.
"The rule of law is still critical in this country," Rep. John Tierney, D-Mass., said before the losing the mostly party-line 218-207 vote that fell short of two-thirds majority needed for passage. "It is exactly when the government thinks that it can be the sole, fair arbiter that we most need a judicial system to stand in and strike the balance."
"We can have security and our civil liberties," Tierney said.
Current law requires court review of government surveillance of suspected terrorists in the United States. It does not specifically address the government's ability to intercept messages believed to come from foreigners overseas.
The Bush administration began pressing for changes to the law after a recent ruling by the special FISA court that barred the government from eavesdropping on foreign suspects whose messages were being routed through U.S. communications carriers, including Internet sites.
Democrats agreed the law should not restrict U.S. spies from tapping in on foreign suspects. However, they initially demanded the FISA court to review the eavesdropping process before it begins to make sure that Americans aren't targeted.
By the final vote, Senate Democrats had whittled down that demand and approved a bill that largely mirrored what the Bush administration wanted. It requires:
_Initial approval by Director of National Intelligence Mike McConnell and Attorney General Alberto Gonzales. The administration relented to Democrats leery of Gonzales by adding McConnell to the oversight.
_FISA Court review within 120 days. The final Democratic plan had called for court review to begin immediately and conclude within a month of the surveillance starting
_The law to expire in six months to give Congress time to craft a more comprehensive plan. The White House initially wanted the bill to be permanent.
Before the vote, Democrats excoriated the GOP plan, which Sen. Jay Rockefeller, D-W.Va., said "provides a weak and practically nonexistent court review."
Sen. Russ Feingold, D-Wis., angrily chastised his colleagues for bending to the administration's will.
"The day we start deferring to someone who's not a member of this body ... is a sad day for the U.S. Senate," Feingold said. "We make the policy — not the executive branch."
Likewise, civil liberties advocates said they were outraged that Democratic-led Senate would side with the White House.
"We're hugely disappointed with the Democrats," said Caroline Fredrickson, legislative director for the American Civil Liberties Union. "The idea they let themselves be manipulated into accepting the White House proposal, certainly taking a great deal of it, when they're in control — it's mind-boggling."
It was not immediately clear whether House Speaker Nancy Pelosi would endorse the Senate bill after days of rejecting White House offers.
"I hope that there are no attacks before we are able to effectively update this important act," said Rep. Lamar Smith of Texas, top Republican on the House Judiciary Committee.
Bush has said he would reject any bill that his intelligence director deemed unable "to prevent an attack on the country."
"We've worked hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk," Bush said after meeting with counterterror and homeland security officials at FBI headquarters Friday morning. "Time is short."
Presidents have authority to call Congress back in session from a recess, but the last time it was used was in 1948, by Harry Truman.
Sen. John Cornyn, R-Texas, called the administration plan "more likely to protect the American people against terrorist attacks by those who want to do us harm."
(This version CORRECTS that under the Senate bill, court review would begin within 10 days of start of surveillance, not 15 days. It also deletes an erroneous reference to a four-month limit to the surveillance authority.) )
The House handed President Bush a victory Saturday, voting to expand the government's abilities to eavesdrop without warrants on foreign suspects whose communications pass through the United States.
The 227-183 vote, which followed the Senate's approval Friday, sends the bill to Bush for his signature. He had urged Congress to approve it, saying Saturday, "Protecting America is our most solemn obligation."
The administration said the measure is needed to speed the National Security Agency's ability to intercept phone calls, e-mails and other communications involving foreign nationals "reasonably believed to be outside the United States." Civil liberties groups and many Democrats said it goes too far, possibly enabling the government to wiretap U.S. residents communicating with overseas parties without adequate oversight from courts or Congress.
The bill updates the Foreign Intelligence Surveillance Act, known as FISA. It gives the government leeway to intercept, without warrants, communications between foreigners that are routed through equipment in United States, provided that "foreign intelligence information" is at stake. Bush describes the effort as an anti-terrorist program, but the bill is not limited to terror suspects and could have wider applications, some lawmakers said.
The government long has had substantial powers to intercept purely foreign communications that don't touch U.S. soil.
If a U.S. resident becomes the chief target of surveillance, the government would have to obtain a warrant from the special FISA court.
Congressional Democrats won a few concessions in negotiations earlier in the week. New wiretaps must be approved by the director of national intelligence and the attorney general, not just the attorney general. Congress has battled with Attorney General Alberto Gonzales on several issues, and some Democrats have accused him of perjury.
The new law also will expire in six months unless Congress renews it. The administration wanted the changes to be permanent.
Many congressional Democrats wanted tighter restrictions on government surveillance, but yielded in the face of Bush's veto threats and the impending August recess.
"This bill would grant the attorney general the ability to wiretap anybody, any place, any time without court review, without any checks and balances," said Rep. Zoe Lofgren, D-Calif., during the debate preceding the vote. "I think this unwarranted, unprecedented measure would simply eviscerate the 4th Amendment," which prohibits unreasonable searches and seizures.
Republicans disputed her description. "It does nothing to tear up the Constitution," said Rep. Dan Lungren, R-Calif.
If an American's communications are swept up in surveillance of a foreigner, he said, "we go through a process called minimization" and get rid of the records unless there is reason to suspect the American is a threat.
The administration began pressing for changes to the law after a recent ruling by the FISA court. That decision barred the government from eavesdropping without warrants on foreign suspects whose messages were being routed through U.S. communications carriers, including Internet sites.
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