NSA Hearings, Part V
DEWINE QUESTIONING: 50 USC, Sec. 403(b) – for Gang of Eight. All they do is receive reports with regard to covert action. But saying that they have been notified of this program – they have no statutory authority to do anything as defined in this particular section. AG goes into the notice requirements again. DeWine pretty much thinks the AG is wrong. Period. DeWine says he’s a strict constructionist – and the Administration is bending the interpretation to essentially try and cover their own asses, and DeWine is having none of it. (RH: Mweee heee) Is your probable cause standard different from the usual legal understanding of that term? AG: No, I wouldn’t say that. Is there "reasonable grounds to believe that a party to the communication is a member of al qaeda or affiliate organization?" Gen. Hayden described it as a "softer trigger" than that under FISA? AG says they are the same. (RH: Hmm, so he does occasionally disagree with Gen. Hayden.) DeWine says it is a procedural issue – one requires you to go through more hoops than the other. DeWine asks how individual NSA officials are trained to apply this standard, since it is the NSA agents who are making the decisions on this on a day to day basis? AG says the general counsel’s office at the NSA is doing that training. DoJ has provided some guidance, but the NSA has been primarily responsible for this – the General Counsel’s office at NSA should be held accountable. DeWine says it is in nation’s best interest and the War on Terror’s best interest for the Preznit to come to Congress and brief the Intelligence and Judiciary Committees fully – rather than sneaking around behind our backs.
KENNEDY QUESTIONING: Discussion about the need for bi-partisan cooperation on this and why the President has bypassed Congress. Then asks about whether President has authorized other operations outside of this one FISA end-run – AG not going to answer this question. Kennedy then trying to ascertain whether phone or other tellecom companies or internet companies have been given cover by DoJ for releasing information. AG says he can’t answer the question. And says the media has reported some things inaccurately. (RH: I’d note that if the President had fully informed Congress about this in the first place, they wouldn’t be asking about any of this in a public hearing today, now would they? How pathetic is it that members of Congress have to pull their oversight questions from press reports because this Administration is so disrespectful that they refuse to cooperate with lawful oversight. But I digress…) Kennedy then tells an amusing story about J. Edgar Hoover having 500 wiretaps the day before his testimony, then pulling them so that he could testify that they had 20 wiretaps, and then putting back up the 500 wiretaps the day after testimony. Not, of course, suggesting that your Administration would do that, AG. Ahem.
Specter now talking about renewing the Voting Rights Act.
SESSIONS QUESTIONING: Offers letter from H. Brian Cunningham, someone who worked for Clinton and Bush Administrations and likes the NSA program. And now is introducing Deborah Burlingame – the Sessions all day long human prop. (RH: Why not just tattoo 9/11 on your freaking forehead, because you have no other message today other than fear, fire, foes, you nasal yahoo.) Sessions now arguing that the President showed respect for the Congress for his end-run of FISA. And please investigate who revealed this program and prosecute them. (RH: And the hell with our covert CIA operatives, just so ya know.)
BIDEN QUESTIONING: How exactly have we damaged anything by talking about this program, because the terrorists have known we are surveilling them all along? AG says terrorists are stupid. (RH: Well, so are criminals, so I’ll give him that point. If you knew some of the crap people say on wiretaps, you’d laugh your butt off.) Do you know how many of these wiretaps and/or e-mail intercepts have resulted in anything? AG says Director of FBI said it’s been very valuable. (Well, that’s not really an answer is it?) FBI and Hayden says this has helped protect and prevent here and abroad. Biden: Any arrests? AG: Dodged an answer. What do you do with conversations that don’t result in anything useful? AG: Well, we have some procedures that may exist that would govern what happens to that information. Does anyone know what those procedures are? AG: The NSA does. Have they told anyone in Congress or the Courts? AG: I dunno. How do we know whether anything is being done properly? Doesn’t someone do oversight? The Cold War lasted 40 years – this is likely to go 40 years or more – is “trust us” the best you can do? AG passes the buck to the Inspector General at the NSA. What goes into the re-authorization every 45 days? AG says it isn’t automatic, looks at threat from intel information. Is al qaeda a continuing threat – is that the criteria, rather than whether this program is working? AG says would only use a tool if it was effective.
(Sorry, I had to run our exchange student to a basketball game – so I missed a bit of the hearing.)
GRAHAM QUESTIONING: Fifth column movement – wants check and balance. Emotions run high in a war, and we have done things in the past that were wrong in the cool light of day. It would be very easy for an innocent citizen or business person to have bad things happen to you by a bad actor pinning actions on you that you have not taken. By having Congress on your side, you will be in a stronger position – AG says “we’ll listen to what you have to say.” (RH: Shorter AG – screw you, we’ll still do as we please.) If the Congress cannot regulate and protect the troops, then the Administration is saying that the Congress has no power during a time of war (with regard to Bybee memo and torture memo arguments). Come to Congress and work through this issue, because we don’t need tensions between ourselves, we need unanimity.
DURBIN QUESTIONING: Where did 45 day review requirement come from? Arose via schedules. (RH: Really – so when did that start? Just 45 days into the program, or much later when they realized there would be a problem without some CYA review?) Durbin – so what you are saying is that this oversight occurs only within the executive branch – isn’t that a significant departure from what we have normally thought of as oversight? AG says not sure he understands what Durbin is saying and whether this is unique. Durbin: If you want to wiretap, you must go to the Judiciary and they give oversight. In this case, you go only to yourself. Chertoff recently said that the government is culling through thousands of phone calls to pull out threat words and others. Durbin says that ordinary citizens who have had contacts with persons overseas in the course of ordinary business have been spied upon – can’t get any answers because Administration will not confirm or deny that this may have happened. We cannot give you a blank check.. (RH: Bottom line, no one trusts you – you’ve burned those bridges by consistently lying to us. Repeatedly.) AG says if we were to brief you into the program, how could we be assured that the rights of citizens would be protected? Durbin says that those Senators who have been informed are sworn to secrecy and cannot disclose that information publicly – and no amount of saying that Senators have been briefed excuses the Administration taking actions that are unlawful. Durbin: Well, then, what about Jane Harmon saying that you ought to be using FISA? You haven’t listened to that, have you? Durbin introducing Monica Gabriel and Mindy Kleinberg – statement read into record. Maintaining civil liberties is just as important as winning war on terror.
CORNYN QUESTIONING: Back on the Intimidation of Whistle Blowers Brigade – Cornyn is clearly the designated hitter on “prosecute the people who exposed that the Preznit is breaking the law.” btw, Cornyn is willing to just say that the Preznit has authority under the AUMF to do whatever the hell he wants. (RH: wonder if he’s willing to stop getting a paycheck, then, since he’s now irrelevant?) AG says after 9/11, we realized that our capabilities were inadequate. (RH: I know Cornyn isn’t going to ask a follow-up on this, but since the Administration has had five freaking years to think about it – couldn’t they have asked for an amendment or two to the law? Oh, I guess that would require them to actually give a shit that they were breaking the law or respect Congress or something. Silly me.) Military force can be solely authorized by Preznit when the US is under attack – Cornyn gives AG extended time to talk about unitary executive/military executive theory.
KOHL QUESTIONING: Asks about how many Americans have had phone conversation and/or e-mails intercepted without a court order? AG: Can’t answer that. What changes have had to be made? AG: Can’t tell you. (RH: Anyone notice that the AG hasn’t had trouble answering Republican questions? I’m just saying…) Went into the non-success of this program according to media reports. AG: Can’t really talk about that, other than to disparage the media for talking about the program.
BROWNBACK QUESTIONING: Begins, again, by talking about how scary terrorists are and how this sort of program might have prevented 9/11. (RH: And on that wild-assed speculation note, I’d like to add that we were already surveilling several of the hijackers and lost them before the attacks because we weren’t taking terrorism threats from al qaeda quite so seriously at that time in the Bush Administration, as evidenced by the Preznit completely ignoring a briefing entitled “Al Qaeda to Attack In US” because he was too busy golfing and cutting down shrubbery on vacation. I’m just saying…) What takes so long on the FISA applications? AG goes through a long litany of things that have to be listed. (RH: I just want to say here that I have never had to do a FISA application, but a lot of what he is listing out as required is a similar requirement for a DEA wiretap warrant or for other wiretap surveillance that prosecutors do every day. I put together huge surveillance warrant requests weekly with two cops who couldn’t type if their lives depended on it, a part-time secretary who was no help with specifics, and days in which I had fourteen scheduled hearings and a lot of interruptions for emergencies. I’m sure FISA is complicated, but the bottom line is that you get the freaking job done if it needs doing. And whining about the procedure is useless when you are the freaking person who can go directly to Congress and ask for a change of procedure. You can’t do the job as it stands now, ask for changes – you are sitting in front of the Committee who could make the freaking changes.)
SPECTER QUESTIONING: Just so you know, Abu, the historical context in which you try to place the Preznit’s actions – that’s before Congress enacted FISA, and I’m not buying your tap dance. Carter strongly backed the FISA enactment, and codified that in his signing statement on the bill when it was signed into law. AG – well, Carter couldn’t waive Bushie’s rights to throw out the Constitution. Then goes into specific language versus generalized language – “well, that is false on its face.” The FISA language is more specific than the AUMF language. AG: Um…well, the AUMF is more specific as it relates to al qaeda. (RH: Man, I have to say, that is incredibly weak. Pathetic doesn’t begin to cover it, if that’s all they have on this.) Specter then asked about the Daschle statement that the request was made to add in this surveillance – AG says that he checked with the Congressional Research Service, and there is no record of that ever happening. (RH: Shorter AG – we’re going to challenge the veracity of Sen. Daschle because we refuse to answer the actual question on the grounds that it might make us look bad if Daschle actually told the truth..) AG: Does Congress have statutory authority to encroach on Preznit’s ability to surveil? Specter: You can’t hide behind some constitutional screen when you have circumvented a plainly written law from Congress. Your position that you have not circumvented FISA defies logic in plain speaking meaning. (RH notes: Specter is pissed about this – nothing like having the AG think he can just repeatedly lie to your face and not be held accountable for it at the end of the day. Total disrespect.) You may have the Article II authority – but I do not think that any fair reading of the AUMF gives you the authority to do electronic surveillance. Goes to the Jackson opinion: without Congressional authority, Presidential power is at its lowest ebb. Express will of Congress to the contrary, and when the President seeks to violate that, then he is disregarding express Congressional will. This must be scrutinized with caution – “for what is at stake is the equilibrium established by our Constitutional system.” Need oversight somewhere along the line – perhaps in the Intelligence Committee – but you cannot measure the President’s inherent authority without Congressional oversight – you do not have a blank check, it is not unlimited power. I hope the Intelligence Committee is going to come down to brass tacks here – and I hope it is the Committee, and not just the ranking members, because they need presentation to lawyers to square things up with what the law is. Take this entire issue to the FISA court, lock, stock and barrel.
Finished for today.
(Proof of superior canine intelligence. I’m sorry, but I forgot to make a note of who sent my this photo. But it cracked me up, and I thought everyone could use a giggle as well.)