FISA Redux: Hon. Walker Throws Down

(Via The Atlantic)

I'll be buggered: Judge Walker ruled against the government in the FISA lawsuit.

The National Security Agency broke the law when it wiretapped two American lawyers working for the El-Haramain Charity Foundation, an influential judge ruled Wednesday.

The government is almost certain to appeal this long-awaited decision, as it touches on subjects ranging from the state secrets privilege to the breadth of President Bush's "Terrorist Surveillance Program."

The ruling is a major victory for civil libertarians, and the first time that the TSP has been declared illegal. The case has bounced back and forth from district court judge Vaughn Walker, the chief judge for federal courts in Northern California, to the 9th Circuit Court of Appeals, which rejected a government motion to dismiss it entirely.

This would be another instance of the government refusing to make a case - and losing because of it.

The odds are not good on appeal - but hey, I didn't think they'd get this far.

FISA: Yowza!

Judge Walker rules against the govt in part of the ongoing al-Haramain case.

Basically, Judge Walker has asked to review the wiretap log that pertains to the case - and the government had asserted that the state secrets rule barred him from doing so.

The Judge Begs to differ, and on Monday we will see how the next round of this mess proceeds.

Emptywheel posts that the government will appeal, but not before they suddenly remember:

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

Translation, some of the earlier stuff we gave you is wrong. We'll send you updated information via classified channels.

Or - The stuff is wrong - and we'll send you the correct information when you litigate it out of us (i.e. over our dead bodies).

I'm sure I don't have enough information to know what the hell is going on, but I'm sure going to keep following this.

Props to Emptywheel, she who informs my ranting...

Pelosi shows some spine

Trust Dr. Maddow to get to the bottom of things. According to early interview transcripts obtained by Glenn Greenwald, Nancy Pelosi told Rachel Maddow that she "absolutely" would support a criminal investigation of NSA wiretapping.

Color me suspicious - but that would be the first good news on the wiretapping issue for quite some time.

A bright light in the dark field of justice

Emptywheel and bmaz interpreting Judge Walker's latest order in the FISA immunity case, In Re: National Security Agency telecommunications records litigation:

Emptywheel: Say, Mr. AG, I'd really appreciate seeing some of your original lawyering work on this one, please. I've seen what the dead-enders want to give me, and I'm not really interested in seeing their stale arguments rehashed again. Unless, of course, you're really willing to adopt their completely indefensible position as your own?

bmaz: Ladies and gentlemen, Vaughn Walker is on a mission. As most of you know, I have thought that was the case for quite some time now. But jeebus, and seriously, I have rarely, if ever, seen a judge more on top of a subject, loaded for bear and out in front of a case as we see here. It is awesome and impressive. He is anticipating what the parties are going to argue and how appellate courts are going to rule in the next set of appeals, all from a pre-trial posture. He is treating this case with the respect, depth and care that it deserves because nothing short of our Constitution and Fourth Amendment thereto is at issue. There are precious few bright lights in the dark field of justice these days; irrespective of how it all plays out in the end, so far this sure looks like one of them.

Here's hoping they're right.

Bad things come in threes

Intelligence Court Rules Wiretapping Program Legal
The ruling is expected to validate the president’s power to wiretap international phone calls and intercept e-mail without a court order.

U.S. foreclosure filings in 2008 rose 81% from 2007
U.S. foreclosure filings in 2008 rose 81% from 2007 and tripled from 2006, RealtyTrac reported on Wednesday.

Bank of America to Get Billions in U.S. Aid
Sides Finalizing Terms for Fresh Bailout Cash; Lender Told Treasury That Without Funds, It Couldn't Close Deal for Ailing Merrill

(On BOA -  I'm with Barry: Hey Lewis, you bought it, its yours, leave us out of your mess!)

Well, at least its sunny & warm outside...

Late edit: There is some other good news - the FISA ruling is actually quite limited in scope. It addresses only the question of whether or not the Protect America Act is at odds with the Fourth Amendment. It has no ruling on the legality of the NSA wiretapping itself. Mr. Greenwald justifiably takes the article to task for its mischaracterization of the ruling.

Judicial snark: Telco immunity version

(H/t to emptywheel)

In Re: NSA telecommunications records litigation

The judge's option cites the plaintiff's argument (and question):

Do defendants mean to assert their theory of unfettered presidential power over matters of national security - the very theory plaintiffs seek to challenge in this case - as a basis for disregarding this court’s FISA preemption ruling and defying the current access proceedings under section 1806(f)? So it seems.

To which Judge Walker adds:

So it seems to the court also.

Snark!

And he goes on:

It appears from defendants’ response to plaintiffs’ motion that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act.

[snip]

For the reasons stated herein, defendants’ motion to dismiss or, in the alternative, for summary judgment (Doc #475/49), is DENIED.

Not nearly snarky enough, for my tastes - but snark nonetheless.

Shadow Factory

Danger Room interviews James Bamford about NSA wiretapping.

It depends on what you mean by 'terrorist'

Glenn's all over this one, but cripes - can we finally have some sensible wiretapping regulation and oversight?

...two former Army Reserve Arab linguists for the National Security Agency have said that they routinely eavesdropped on -- "and recorded and transcribed" -- the private telephone calls of American citizens who had absolutely nothing to do with terrorism.

[snip]

The two NSA whistleblowers, Adrienne Kinne and David Murfee Faulk, were interviewed by ABC News' Brian Ross.  Kinne said that "US military officers, American journalists and American aid workers were routinely intercepted and 'collected on' as they called their offices or homes in the United States."  He also said his co-workers "were ordered to transcribe these calls."   Faulk told Ross:  "when one of my co-workers went to a supervisor and said:  'but sir, there are personal calls,' the supervisor said: 'my orders were to transcribe everything'."

FISA's slippery slope

bmaz on Emptywheel goes to town on FISA's latest upchuck:

Here, courtesy of the New York Times, is the new joy the Attorney General is announcing to "protect yer freedums":

A Justice Department plan would loosen restrictions on the Federal Bureau of Investigation to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion, Democratic lawmakers briefed on the details said Wednesday.
...
The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.” The plan “might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities,” the letter said. It was signed by Russ Feingold of Wisconsin, Richard J. Durbin of Illinois, Edward M. Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island. (emphasis added)

God bless America.

(Full post)

Bingo

Lessig on Obama, via Siva - and I couldn't agree more:

...weirdly, the [Obama] campaign seems focused on the very last thing a campaign should be doing during a campaign -- governing. This is not a try-out. A campaign is not a dry run for running government. Yet policy wonks inside the campaign sputter policy that Obama listens to and follows, again, apparently oblivious to how following that advice, when inconsistent with the positions taken in the past, just reinforces the other side's campaign claim that Obama is just another calculating, unprincipled politician. 

The best evidence that they don't get this is Telco Immunity. Obama said he would filibuster a FISA bill with Telco Immunity in it. He has now signaled he won't. When you talk to people close to the campaign about this, they say stuff like: "Come on, who really cares about that issue? Does anyone think the left is going to vote for McCain rather than Obama? This was a hard question. We tried to get it right. And anyway, the FISA compromise in the bill was a good one."

FISA: We lose

(H/t to Glenn)

Hats off to the Democratic controlled Senate. They certainly are consistent.

H.R.6304 FISA bill amendments

• Remove Immunity for Telecoms (Dodd/Feingold) - Rejected
• Subject Immunity to [weak] Court Approval (Specter) - Rejected 
• Delay Immunity until the IG investigates what took place (Bingaman) - Rejected

I know which senator won't get my vote next time.

Final vote on the bill to follow.

Careful what you say now folks, because there's sure to be somebody listening.

Late Edit: (H/t Secrecy News)

Let's hope Sen. Whitehouse is right:

“If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning,” Sen. Whitehouse said.

Later Edit:
The ACLU is going to press exactly that legal point.
Glenn has the full rundown of what happened today, why it's so godawful, and who's to blame. Obama is among them.

FISA: Have you called your senators?

(H/t to Glenn)
Other than voting against the bill entirely, there are two additional positions to press for.

• Supporting the Feingold/Dodd amendment - removing Telecom Immunity from the FISA bill.
• Supporting the Bingamann amendment - postponing civil actions against the telecoms, in exchange for making immunity conditional on the findings of the IG investigation into what has been happening.

Call your senators.

Obama: you listening now?

(via TPM)

Obama supporters liking telecom immunity? Not so much.

Late edit:

Here's an excerpt from the response I got from the Obama campaign on FISA (emphasis mine):

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.  It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay.  So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people.

I'd respond to just the bold bits thusly:

Restores FISA exclusivity? Hah.
Guarantees a thorough review? Emptywheel's got your double-hah right here:

The bill takes an idea included in the House bill--a review of the program to find out what really happened--and dumps that review into the lap of the Inspectors General of the various agencies (the House bill had called for a bipartisan commission). The OPR review of the authorization of the program is included in this. An IG picked by the President and approved by the Senate will, a year after the bill is passed, present an unclassified report on the program (with classified annex). That review cannot name anyone in the private sector involved in the illegal wiretapping.

So the foxes will give us a thorough review of who raided the hen house? Color me unimpressed.

80 to 15

That was the vote spread in favor of ending debate on the FISA bill in the Senate yesterday.

Eighty senators felt that we'd discussed this issue enough to schedule a vote.

I mean, my God - they've had the bill for five whole days (including a weekend) we'd better rush that puppy through.

The people are demanding action on the FISA law! Can't you hear their demands for telecom immunity?

Don't think, vote! Vote damn you!!!

Sen. Dodd gets it

(H/t to Glenn Greenwald)

Sen. Dodd's saying the right things: (emphasis added)

This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear:

“Trust me.”

And that message comes straight from the mouth of this President. “Trust me.”

[snip]

“Trust me” government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.

Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan -- in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.

[snip]

There is only one issue here. Only one: the law issue.

Does the president serve the law, or does the law serve the president? Each insult to our Constitution comes from the same source; each springs from the same mindset; and if we attack this contempt for the law at any point, we will wound it at all points.

That is why I’m here today: Retroactive immunity is on the table today; but also at issue is the entire ideology that justifies it, the same ideology that defends torture and executive lawlessness. Immunity is a disgrace in itself, but it is far worse in what it represents. It tells us that some believe in the courts only so long as their verdict goes their way. That some only believe in the rule of law, so long as exceptions are made at their desire. It puts secrecy above sunshine and fiat above law.

Did the telecoms break the law? That, I don’t know.

But pass immunity…and we will never know. A handful of favored corporations will remain unchallenged. Their arguments will never be heard in a court of law. The truth behind this unprecedented domestic spying will never see light. And the cases will be closed forever.

[snip]

Here’s how Mike McConnell put it: “If you play out the suits at the value they’re claimed, it would bankrupt these companies. So…we have to provide liability protection to these private sector entities.”

[snip]

It’s much more troubling, though, that our Director of National Intelligence even bothers to speak to “liability protection for private sector entities.”

This isn’t the Secretary of Commerce we’re talking about, but the head of our nation’s intelligence efforts.

For that matter, how does that even begin to be relevant to letting this case go forward? Since when did we throw entire suits out because the defendant stood to lose too much?

It astounds me that some can speak in the same breath about national security and bottom lines. Approve immunity, and Congress will state clearly: The richer you are, the more successful you are, the more lawless you are entitled to be. A suit against you is a danger to the Republic!

And so, at the rock-bottom of its justifications, the telecoms’ advocates are essentially arguing that immunity can be bought.

The truth is exactly the opposite—and it should be obvious:

The larger the corporation, the greater the potential for abuse.

-you have to wonder are any of his Senate colleagues listening?

I'm looking at you, Reid.

Pick up the phone

Firedoglake has posted a list of US Senators who need to be bothered about FISA.

If you give a rip about FISA: Call. Be polite, but firm.

Emptywheel's take on the bill points out some items that are not bad, but there's still plenty to hate.

My own view is that immunity is not deserved, absent full disclosure of what took place before elected representatives (outside of the executive) who are empowered to take action if they see wrongdoing. It's like the Truth and Reconciliation Commission: we'll let you off, conditioned on you telling us the truth - all of it.

This bill leaves oversight of minimization procedures [i.e. we only collect what we should] in the hands of the Executive. Somebody needs to keep an eye on the people doing the spying - and this bill says the spies will police themselves.

Information that is collected and later found to have been improperly collected can be retained by the government. They can't use it in a hearing or a prosecution, but that's small consolation.

It may shock people to learn that (as it exists now) FISA allows the government to listen in to all international communications (to and from the US).

I'll explain:

FISA does not cover transmissions that don't travel by wire. Microwave transmissions to satellites are not covered by FISA (nor are radio transmissions - that cell phone you have is a radio transmitter).

Further, FISA only applies to wire transmissions where the intercept takes place within the United States. The reverse of that means that FISA does not apply when the wiretap takes place outside of the United States (i.e. on a US fiber optic line that has just crossed into Canada - or into international waters).

BTW: Email travels by wire. Soon as it leaves the country, it's fair game.

The caveat to this is that the government is not allowed to target an individual when they do this: they must do what is called "drift net" eavesdropping: they listen to everything and then have computers perform searches for keywords like "bomb" "White House" or "Olbermann."

But they can collect everything leaving the country without needing a FISA warrant. This is what is going on now.

(I should point out that there may well be other regulations that apply to these communications, but FISA does not and has not)

The idea that the government has been scanning our international conversations for keywords it finds threatening is nowhere near as disturbing as the notion that they get to keep this information in perpetuity. Just because there are legal safeguards to protect us from having the aggregate recordings distilled down to an individual - doesn't mean this will always be the case.

4th Amendment procedures that restrict exactly how and when such a distillation is permitted need to be in the hands of people who do not work for the Executive. They need to be in the hands of people who the Executive is actively afraid of.

I can accept a government that sifts through aggregate data, so long as making the next jump - -using aggregate to find targets for individual surveillance - has brutal 4th amendment safeguards.

Likewise, I can accept a government that collects aggregate data, so long as the aggregate data is not retained in the hopes of a freer regulatory environment in the future. The kind of keyword searches performed on aggregate data should be subject to outside review.

Frankly, once you have the right targeting and aggregate safeguards in place, you can drop the geographic requirement of FISA - since it's essentially meaningless anyway. When they can listen to everything if they're in Canada, what's the difference if they are listening inside the US?

But they have to be subject to oversight.

A self-regulating surveillance program is just a greased slope into abuse.

Oh, so that's what they got

I've been trying like mad to see what the upside of the FISA "deal" is for progressives.

What pelt are the Democrats proudly nailing to the wall?

The NYT spells it out:

Perhaps the most important concession that Democratic leaders claimed was an affirmation that the intelligence restrictions were the "exclusive" means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts "that the law is the exclusive authority and not the whim of the president of the United States," Ms. Pelosi said.

Slate's David Barron is not impressed:

That was the New York Times [saying that], by the way. Not the Onion.

Late edit:

Balkinization's Marty Lederman has a great quote on the exclusivity that was "won" by the Dems (emphasis added):

In other words: The President will only violate the law when he thinks it's too restrictive, and this law is not restrictive at all, so there's nothing to worry about. The "balance that was struck," to which [frmr Deputy Attorney General under Bush I, George] Terwilliger refers, is that the White House acceded to the exclusivity provision, in exchange for substantive standards so permissive as to ensure that the exclusivity provision will never be pertinent.

Obama sells out

The Obama campaign's statement on FISA is about as transparent as it gets.

He's avoiding the issue by saying "I'll make a show of fighting this - but nothing that will ruffle feathers."

If people are going to scream at their Senators over this (and his campaign), they need to understand the issue.

Balkinization's David Kris has a primer on the FISA bill.

You wanna know? They'll tell you what's what. It's a big issue with lots to know (and Kris is doing this in installments) but he's breaking it down for you.

Good stuff.

Call them out - the FISA turncoats

Final Vote Results for Roll Call 437
H R 6304 YEA-AND-NAY 20-Jun-2008 12:48 PM
QUESTION: On Passage
BILL TITLE: FISA Amendments Act of 2008

FISA amendments pass in the House 293-129.

Here's the list of people who sold you out. The names not in italics are the Democrats.

Hoyer and Pelosi are among them.

All eyes on the Senate - and the Presidential candidates.

Late edit:
Speaking of which - Emptywheel has heard from the Obama campaign on this issue. Looks like Sen. Obama is trying to split the difference.

There are more things going on in this bill than just immunity - a lot more.

If Sen. Obama is truly resigned to the existing bill - that's pretty weak. Sen. McCain will of course endorse this decision - so he's even less help, but we deserve better than that.

Reality filter

One topic stood out in yesterday's nightly news for ABC and NBC: the FISA deal.

A major issue where both parties were in disagreement. The Wall Street Journal announces a deal has been made.

ABC's coverage of the issue:

.....

NBC's coverage of the issue:

.....

As in - they didn't cover it. Doubtless they were waiting until today when they can announce a vote, rather than inform us that a vote would take place tomorrow.

(I didn't TiVO CBS because their news is more than even I can stomach - if they covered FISA yesterday, they deserve praise.)

True, NBC did devote some time to the hula hoop, so the evening wasn't a total loss. I mean, obviously they've only got 22 minutes to cover the day's news - but why isn't FISA an issue to them? Why the hell is a new medical procedure that is years away from hitting the market more important than a vote in Congress that will end public inquiry into corporate violations of the FISA law?

Before their non-coverage of the Military-Expert scandal, I might have given the networks the benefit of the doubt on their editing choices, but when all three ignore something (to this very day) - it is abundantly clear that their filter is intentional.

I'm glad people are going after the Democrats who have sold out their base - but I wish there were better means for exposing the failure of our network news.