Having now had a chance to read through Senator DeWine's proposed "Terrorist Surveillance Act," I agree completely with Glenn and Marty Lederman: I see nothing in the bill that gives these newly created Congressional subcommittees anything more than the power to request information.
The Act does not appear to grant the committees the authority to approve or disapprove of surveillance decisions, even on a program-wide level. If the members of these committees were to disapprove of what of the President was doing, their only option would be to try to convince Congress to amend the law (which, as Marty points out, would require a veto-proof 2/3rds majority). And the committee members would have to perform this miracle without disclosing to their colleagues any of the information they learned about the program (or risk 15 years in prison). And even then, the President would--in all likelihood--simply reassert his supposed power to violate the law. And around and around we go.
This bill actually makes Arlen Specter's bill seem serious by comparison. At least under Specter's bill, the program would be subject to meaningful Fourth Amendment review.
Glenn and Marty have already done a great job picking apart DeWine's bill, so I won't repeat what they've said. There is, however, one provision in the bill that neither of them touched upon that I think is particularly troubling. Section 2(f)(2) of the bill provides as follows:
USES OF INFORMATION.--No information acquired from electronic surveillance conducted pursuant to this section may be used or disclosed by Federal officers or employees except for lawful purposes, including the provision of a factual predicate for an order for electronic surveillance under section 104 of the Foreign Intelligence Surveillance Act of 1978 . . . and use in a criminal proceeding consistent section 106 of the Foreign Intelligence Surveillance Act of 1978.
This is exactly the sort of provision I feared would be included in this bill. It is the fatal blow to FISA. To understand why this is the case, I refer you back to the February 9 Washington Post article that described the compromise the Bush administration had reached with the presiding judge of the FISA Court regarding the warrantless surveillance program.
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 article explains that this was an attempt by the presiding judge--who was the only member of the court informed about the warrantless surveillance program--to "shield the court from tainted information." The judges recognized that if information gained via warrantless surveillance could be used to secure a warrant, it would make a mockery of the entire statutory scheme. The compromise the Court reached with the administration was an agreement that information obtained via the warrantless surveillance program could only be used for early detection purposes--which is the reason the administration gave for needing to circumvent FISA--and never to secure a warrant or as evidence in court.
The DeWine bill--as I feared it would--eviscerates this judicially imposed firewall. Section (f)(2) of the bill explicitly authorizes the use of this tainted information in future warrant applications and criminal proceedings. In other words, this bill is not just a legalization of the status quo; it is actually far worse than the status quo. This president has declared that he has the power to conduct any surveillance he deems necessary, regardless of what the law says. But his ability to utilize the fruits of that surveillance is limited by the courts. The president cannot force the courts recognize such evidence as legitimate or admissible. But Congress can. DeWine's bill does just that, and in doing so, it eliminates the last meaningful constraint on the use of warrantless surveillance.
I too read that part of the DeWine bill and was disturbed by it. You had it right A.L. that it would be like the police conducting a warrantless search of your home and then using that evidence to obtain a warrant.
ReplyDeleteAnd speaking of warrantless searches.
I read a news report last night that the Senate had passed some kind of resolution affirming that the US would establish no permanent bases in Iraq.
ReplyDeleteI couldn't help wondering, what makes them think they have any authority to make that kind of resolution? Don't they realize they have no power to interfere with the "War on Terror", however the President wants to run it?
Jeff
The one part of Countdown’s segment (mentioned in the first comment) on warrantless searches that jumped out at me was when Olberman was forced into tin foil hat territory:
ReplyDeleteOlbermann:
but is this...is this not the first thing you would see if you did some sort of... prequel to the book 1984, wouldn't this be somewhere in the 1st chapter?
Turley: I'm afraid it would. This is something to be very concerned about. These are not trival matters. We've seen a sort of broad-based assault on basic Constitutional rights in our country since 9/11.
There is just no way to overstate what is happening, and even if you explain this calmly and precisely backing up all your arguments, you still sound paranoid.
We’ve reached the point where if you try to explain this to people they won’t believe you because it sounds too far fetched. They tend to respond “Obviously, you must be reading something wrong. Our government could never do this.”
A lot of people don’t see what’s happening or, if they do see it, don’t want to admit that it’s happening. It’s just too Orwellian.
Excellent point - But there is the final resort to a legal challange of this and the NSA program (I hope - I Hope) which could provide that much needed statutory and Constitutional interpretation of these provisions.
ReplyDeleteDoes anyone have a clear read on how much support this bill has?
ReplyDeleteThis people of this country deserve what follows if this bill passes. Once it passes, someone will use the powwers that are granted her, that have been asserted in the Padilla case and elsewhere: suspension of civil liberties, martial law, arbitrary arrest, indefinite confinement, torture and summary execution.
ReplyDeleteDoes anyone have a clear read on how much support this bill has?
ReplyDeleteIf the president publicly supports this bill I bet it will garner 90+ Senate votes.
A lot of people don’t see what’s happening or, if they do see it, don’t want to admit that it’s happening. It’s just too Orwellian.
ReplyDeleteI've felt that way since the "election" of 2000. It seemed quite obvious to me what was going on, but my conclusions were dismissed as overheated by some of my closest friends. This "government" is a criminal enterprise, and we the people don't count in their calculations. Some people are just waking up to that now. Fine. I hope it's not too late.
When some young politician in the future (if we have a future) wants to write a sequel to "Profiles in Courage," one chapter will surely be devoted to Senator Russ Feingold. If only his colleagues would stand by his side...would put up some fight. His letter-to-the-editor in the Times today:
ReplyDeleteTo the Editor:
Re "Time for Facts, Not Resolutions" (editorial, March 17):
The president broke the law, and Congress must hold the president accountable.
You are right that the nation deserves to know more details about the National Security Agency's spying program, but there's nothing we could learn that would change the fact that by authorizing the program, the president broke the law.
Member of both parties who have concerns about the legality of the N.S.A.'s program, and there are quite a few, should not try to avoid that central issue while offering proposals to legalize the president's conduct.
I strongly support wiretapping terrorists to protect our national security, which current law allows.
The president needs to follow that law, or inform Congress of any reasons he thinks that law should be changed. He has a responsibility to obey the laws that Congress passes.
There must be no equivocation on that central tenet of our system of government.
I applauded Senator Harry Reid's effort to take the Senate into closed session to get answers on the intelligence and policy failures leading up to the Iraq war. But to suggest that such a maneuver is our only recourse now ignores the role the founders expected Congress to play when a president commits such a flagrant abuse of power.
We don't need a closed session to highlight the president's lawbreaking; we need an open debate and an expression of the Senate's judgment.
Members of Congress do need to "fulfill their sworn duty," as you suggest, and that means censuring a president who so plainly broke the law and violated the trust of the American people.
Russell Feingold
U.S. Senator from Wisconsin
Washington, March 17, 2006
Another letter in today’s New York times had this comment:
ReplyDeleteHow long was President Bush planning to continue his lawbreaking? Until enough Americans awaken from their post-9/11 daze and realize that the real threat to our democracy is in the White House.
Investigating this administration's misdeeds will take years; the virtue of the censure resolution is that it calls for the immediate question. Will you stand up for the Constitution and the rule of law? Or will you allow your fear of terrorism to destroy the very principles you mean to protect?
The important thing now is not to investigate President Bush, but to stop him.
Excellent point.
I just wrote a letter supporting Feingold; we'll see if they print it.
ReplyDeleteThe fact that they printed four letters on the same side of this issue means they must have received a TON of mail on it. They usually try to "balance" out opinions. Once they held a letter of mine for few days that they'd said they would print, waiting for something from "the other side."
They get about a thousand letters a day, or they used to a few years ago; I'd bet it's higher now, especially when there's a hot issue out there.
jao,
ReplyDeleteYou have stated that if the FISA/Article II case went to the Supreme Court, Bush would lose 9-0.
Could you explain your prediction given that the dicta in the Re: Sealed Case (written by FISA Senior Circuit Judges)so complete and totally undermines your argument?
If senior level FISA Court judges indicate they would in fact recognize Bush has inherent powers that FISA could not encroach, why would you place your bet on the other side?
It just makes no logical sense whatsoever.
I meant to add,
ReplyDeleteeven Kris bails on inherent powers issue and he was at the FISA Court of Review hearing.
This is how I translate the gist of this legislation [Section 2] - and I think it makes clear the sort of computer program surveillance of massive quantities of data this language is written to provide cover for.
ReplyDeleteThe Tyranny Enabling Act of 2006, in a direct repudiation of the clear language of our Constitution, purports to allow:
The PRESIDENT to determine if "U.S. interests" (or U.S. citizens or the United States) "whether inside or outside the United States" need "protection," and provided he so determines he may AUTHORIZE (on his own, without Judicial Branch or Legislative Branch involvement) a "PROGRAM of electronic surveillance" on a black (secret) "LIST" of groups or organizations, provided only that:
1. "ONE party" subject to said PROGRAM of surveillance is a member, OR an affiliate, OR "working in support of" one of the multiple groups or organizations on the black list. (This black list to be created by the President based only on the "reasonable likelihood" that each group or organization listed is "engaged in activities in preparation for an actual or potential act of international terrorism against the United States, its citizens, OR its interests, whether inside the United States or outside the United States" or such group simply "intends to engage in" such an act, or such group "has engaged in" such an act);
AND
2. The surveillance is "reasonably designed to acquire" only cross-border communications "WHERE" [meaning IF and only IF?]:
(A) "ONE party" to such communications is "reasonably believed to be physically located outside the U.S."
OR
(B) such communications "appear to originate or terminate outside the U.S;"
[What's the real world difference between (A) and (B)? That must have something to do with the nature of the program's operation.]
AND
3. That there is a "substantial likelihood" that the surveillance will never "acquire the substance of any communication" where NO single party to such communication is outside the U.S. (meaning there is a "substantial likelihood" that there will always be at least ONE party outside the U.S. among the many parties being swept up en masse in the electronic surveillance). [This provision seems to me to be pure fluff, carrying no restrictive weight whatsoever.]
AND
4. A "significant purpose of the surveillance is to obtain foreign intelligence information."
------------------------------------------------------
So:
Function Number One: "PROTECTION" of unspecified "interests" et al from unspecified threats. [Sec. 2(a)(1)]
Function Number Five: "To obtain foreign intelligence information" as a "significant" BUT NOT SOLE "purpose." [Sec. 2(a)(5)]
Existing FISA law by comparison states:
"(e) 'Foreign intelligence information' means-
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against-
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; OR
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; OR
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to-
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States."
Finally, as far as I can tell, UNintentional, unexpected surveillance of cross-border communications from and to U.S. Persons, when picked up OUTSIDE the United States because of the "targeting" of a NON-U.S. target, MAY BE listened to and acted on WITHOUT A WARRANT, under FISA. 50 U.S.C. Sec. 1801(f)(1-4) seems to limit the necessity to obtain warrants under CURRENT FISA law, to those U.S. communications the government wishes to monitor by "intentionally targeting" a "particular, known United States person who is in the United States" or to those cross-border communications picked up inside the United States. [This is a question I asked in the previous thread.]
I wonder how "United States interests" are defined these days, and by whom... Talk about a blank check from the United States Treasury for Pentagon adventures, and a blank rulebook for an Executive Branch formerly constituted under the Rule of Law...
Addendum:
ReplyDeleteIn fact, there only needs to be "probable cause to believe" that "ONE party" subject to the surveillance is a member of OR affiliated with OR "working in support of" one of the multiple groups which are on the black list (and therefore in The Program) because they have a "reasonable likelihood" of intending to engage in international terrorism against U.S. "interests" etc. [With regard to my first #1 in the preceding post.]
What is the "section 106" of FISA with which DeWine requires the use in court of wiretap products to be "consistent"? Does FISA actually allow use of FISA wiretap products to be used in criminal proceedings? If so, under what circumstances?
ReplyDeleteThe sickening part of this whole thing is that the administration very likely has used, and will continue to use, warrantless wiretaps against political opponents and critics. Fighting terrorism is the cover story.
ReplyDeletejao,
ReplyDeletethanks for the well-reasoned response.
IMO, the Supremes would give more respect to the executive branch and say it is not the judical branch's job to choose who can be spied on in foreign to u.s. surveillance. Essentially, this is what FISA does and it overreaches. I would suspect they would rule it could be regulated but only in a broad unobtrusive way and throw it back to Congress.
I will agree that I would like to see it go to court. However, since Bush has the obvious advantage, I think it would be politically stupid to purposely go to court when you are kicking your opponent's ass on the issue.
There is no motivation whatsoever for the winning side to take it to court however, I suspect it will get there eventually but maybe not for decades.
RE: This people of this country deserve what follows if this bill passes.
ReplyDeleteFor the most part, this statement is unfair to the people of our nation. As you know, one of liberal's complaints is the MSM's lack attention and accuracy to the NSA wiretap and the DeWine bill.
I suspect that many people believe they are well informed. But, as I'm sure you know, it takes a considerable amount of time and focus to root out the truth or to get an alternative opinion.
Lack of information is a big concern to me, not only with the spying/wiretap issue, but also with government business as a whole. It creates a lazy public that reacts only when it starts to hurt. It is hard to become impassioned about something you know nothing about.
My growing children afforded me more personal time and the Bush Administration gave me incentive to become more involved. My early visits to the Senate or House websites were not entirely successful and sometimes not at all. The sites are not user-friendly to the average constituent (me) and the bills are written in legalese (not me). Specific information is difficult to locate unless you know the bill/amendment number, sponsor and/or activity date.
I would like to see a layman's reading on the government sites, or a bipartisan blog that lists the daily legislative activity, interpretations, opinions and links to sites for further information.
Newspapers should have a regular column informing of daily congressional action, with internet links for referencing. The column would allow the public a greater ability to determine what is news.
When you consider our modern day of growing overtime, 2nd jobs, working mothers, long commutes, single parents, etc., it's obvious the print media has not adapted to our changed reality in fulfilling their prime objective. I won't even bother commenting on most television or radio.
Most of us do the best we can with our born abilities, talents and limitations. As true Democrats, we aid our fellowman where and when we are able. I believe that Anonymous Liberal and Glenn have done just that, and I am truly grateful.
It seems to me that passing any law is rather beside the point in dealing with this president. He has demonstrated a willingness to avoid, evade or break any rule, domestic or international, to further his agenda.
ReplyDeleteI believe that it is time now for us all to realize the nature of the people we are dealing with. To a criminal, the law is just a meaningless piece of paper without the cops around to back it up with force.
Rather than writing another law on "just another piece of paper," maybe we should simply be determining what it will take to convince the head of the Secret Service to arrest Bush/Cheney.
goodasgold said:
ReplyDelete"...I would like to see a layman's reading on the government [House and Senate] sites, or a bipartisan blog that lists the daily legislative activity, interpretations, opinions and links to sites for further information.
Newspapers should have a regular column informing of daily congressional action, with internet links for referencing. The column would allow the public a greater ability to determine what is news..."
This suggestion is as good as gold...
I completely agree. The fact is, an uninformed citizenry makes for an easier time in office for our public servants. No accountability because information is unavailable or "too complicated to explain" or otherwise "spun" seems to be just the way our current incumbents like it, despite the clear detriment to our nation of such a lack of access to clear, detailed, but understandable and accurate information for the public.
jao. Wow. You're good. Exceptional. I hope you will be writing some guest blogs on this site. I even wish your last few posts were themselves featured as guest host articles. You and hypatia are dynamite.
ReplyDeleteI don't know if you were coming to this site then, or if you read Glenn's initial post when the Specter proposal was first made public, but, unlike Marty Lederman, who essentially threw up his hands in despair, Glenn came out in support of the Specter proposal, in that it at least called for judicial review, but concluded the government would never agree to what Specter was proposing for the reasons you state, that the last thing the government wants is to submit to judicial review.
I believe that was before the Senate Intelligence Committee caved and voted not to hold hearings.
Specter is weak, and is notorious for bowing to pressure. Nobody in his own party is supporting him. That's enabled the DeWine bill to gain traction and, likely, passage.
I would love to stop the breast beating and take constructive action to stop this latest, and most hideous, assault on the Rule of Law.
How?
What do you suggest? It would appear writing letters to various sources urging them to support the Specter proposal is dead on arrival.
Do you have any other idea?
Nobody wants to relax and enjoy the coming inevitable rape, but how do we stop it?
That's why Feingold charging out on stage, dramatically, and desperately, in defense of the Rule of Law has seemed like the only hope to many of us.
I would imagine he evaluates the situation much like you do, and is taking the only action he thinks might work.
If the normal channels are all going to fail us now, and a crime syndicate has hijacked our government, normal solutions are not available.
What do you suggest? Also, how do you see this Feingold censure motion playing out?
Great post, AL, and scary "find".
Bruce Wayne's idea that the Secret Service somehow be convinced to arrest Bush and Cheney may have some merit. What oath if any do the Service's personnel take? Where is their institutional loyalty? I seem to recall that Secret Service people were required to testify against Bill Clinton in the Monica Lewinski affair, so that would be some indication that they are not umbilically joined to POTUS.
ReplyDeleteMaybe a better target would be Gonzales. As Attorney General he has clearly been aiding and abetting in the ongoing crime of his client, GWB. (Help me here, I'm not a lawyer. Is the AG institutionally the lawyer of the Prez, or is his obligation to the DOJ and the constitution. If the latter, wouldn't that make his malfeasance even more egregious?) On an episode of Law and Order, an attorney who was materially assisting an ongoing criminal enterprise was found to have no attorney-client privilege as a result. Is reality as reasonable on this issue as fiction?
It seems to me that there is plenty of blame to go around here, but how much of it translates to criminal liability? Clearly, in a non-legal sense, the intelligence and judicial committees of congress have engaged in obstruction of justice on more than one occasion. Could they be prosecuted in the future?
Just askin'.
Jeff said...
ReplyDelete"I read a news report last night that the Senate had passed some kind of resolution affirming that the US would establish no permanent bases in Iraq."
The Bush admin has already ignored it, they have been pouring millions into four large bases in Iraq. I can't imagine they would pour that kind of money into bases that the Iraqi military will not be able to make use of and that they would abandon upon leaving Iraq.
*(*
ReplyDeleteGlenn:
Can you or someone explain to me whether Congress has the authority to grant the Prez the power to do warrantless searches of US citizens?
It would seem to me that the structure of the constitution is that we the people through our states grant powers to our Federal government and that the Bill of Rights spells out those powers and the limits on them. If the Constitution is not amended in either of the two specific ways described in the Constitution, it would seem that Congress does not have the power to eviscerate the Fourth amednment through statute any more than The Prez has the power to ignore it using whatever arguments he is morphing into this week.
Do I as a private citizen have standing to challenge this statute as a violation of the Constitution since it clearly flies in the face of the powers granted to the Federal government?
If I can't, does any state have standing to file suit?
Would it be filed in federal court? How would this work?
Thanks