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Judiciary Committee FISA Hearing, Part I

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SPECTER OPENING: Arlen Specter starts the hearing with a rant at people who are criticizing his bill. Apparently, there have been many people talking with their Senators who aren’t happy with the Specter bill, and Specter’s not happy about that.  (CHS: Gee, I wonder who has been calling?)

"My goal is to solve the current problem. The President has made a firm commitment to me to submit the program to the FISA court. I would like to have a mandate. But this President is not going to give to a mandate, and yield to this kind of legislative authority…." (CHS: Essentially, Specter is arguing that this is the best that Congress can do in terms of negotiation with this Administration – and that some oversight is better than none at all. That’s pretty much the tone of his opening.)

LEAHY OPENING: Welcomes Gen. Hayden, and commends him on the appointments he’s made thus far at the CIA. We want straight talk on the NSA issue today. For 7 months and 4 hearings, we remain largely in the dark about what the NSA has been doing because the Administration has stonewalled our efforts at oversight. We must ensure that this Administration and the subsequent ones follow the law.

The FISA laws have been revised 6 times at the request of the Administration, and yet they still complain that it needs to be modernized. (CHS: Excellent point by Leahy. Good on him!) FISA issues provide NO excuse for the Administration flouting existing law. Ready to consider Section 9 on its merits, but I have considerable skepticism – why haven’t we heard about a need to update this before now, given how many times we’ve already done updates to the law?

The bill has been called a compromise. But I do not agree that we should ever compromise on the rule of law, no matter who is President. I see this bill as more of a concession, and it gives the Administration too many loopholes. The President, the Vice President and their legions can be hard-headed – I say this respectfully, but honestly. This repeals FISA’s exclusivity provision – it makes FISA optional. This is astounding that we are even considering this proposal.

FISA was not enacted to give President’s choices. It was enacted to prevent abuses of power. Bush has chosen to ignore it, to ignore the law. Are we now going to reward them for doing so? (CHS: Leahy’s statement was great. I hope he’ll have the full statement available at some point, because I wasn’t able to completely keep up.)

GEN. HAYDEN, CIA (AND FORMER NSA), OPENING: All free people have had to balance the demands for liberty and the demands for security. We should keep America free by making Americans feel safe again – what he said after the 9/11 attacks to the NSA. Trying to link the NSA domestic security issue back to the 9/11 Commission review report. Trying to go back through the history of pre- and post-9/11 FISA regime, and the changes in technology that is now beyond what anyone could have anticipated in the 1970s. Goes through the factors in FISA that the government must assess in order to see whether a court order is needed: (1) who is target; (2) where is target; (3) how do we intercept the communication and (4) where do we intercept the communication. Talks at length about the technological changes which create conflict with FISA – and details information about the four criteria and the thought process used in evaluating those factors.

Because of the nature of global telecommunications, we are playing with a tremendous home field advantage. We need to protect that advantage, and to those who are providing it to us. (Speaking about telecommunications company provisions in the Specter bill. Hmmmm…interesting, no?) Whatever legal differences and arguments occur on questions of separation of powers, the persons who are trying to protect the US should not suffer legal consequences and he urges the Committee to provide such protections to those personnel. The NSA bumps up against information about, to and from US citizens. The NSA deals with this frequently, and knows how to handle it properly via minimization processes.

GEN. ALEXANDER, NSA, OPENING: Advances in technology have had unintended consequences on the application of national security work. These advances were understandably unforseeable by the Congress in the 1970s. Talks about taking advantage of the communication structure that is on American soil – the infrastructure of the communications network that is here in the US. Must compel communications companies to provide targeted assistance, and insulate those companies from liability if they do so. Says Specter’s bill makes the needed changes, and finishes by talking about the need to balance civil liberties and national security.

STEPHEN BRADBURY, ACTING ASST. AG: Foreign intel. Surveillance is an important tool in combating terrorism. 9/11. 9/11. (CHS: oops, sorry, he seemed to get stuck on that for a bit.) Innovations in communications technology have transformed how they communicate and plot their next attacks. Al qaeda exploits 20th century technology to advance an agenda from the dark ages and beyond. Communications in and out of the US, where there is a reasonable reason to believe that at least one party is outside the US. Then spends some time trying to convince the committee that the Specter bill is really innovative and does lots of things for the FIRST TIME!!!!! (CHS: His enthusiasm for this immediately makes his discussion suspect to me, since he’s spending his entire opening statement pushing Specter’s bill. Methinks the Administration really, really wants this bill. Gee, wonder why? Perhaps because it gives George Bush a pass for failing to follow the law for the last five plus years and would make oversight optional, at the President’s discretion. Also likes the DeWine bill.)

SPECTER ROUND ONE: Why can’t you do individualized warrants? There have been reports that the program is so massive that you cannot do so. Would it be possible to obtain individual warrants with additional manpower? Alexander says if you take out foreign/overseas targets as the Specter bill does, then you are back to a manageable level, so yes. Intermixed currently with the domestic is the foreign. Specter follows up and asks if it is possible to have an individualized warrant where one party to the discussion is an American. Alexander doesn’t think so because it would complicate ability to exploit the advantage of the communications infrastructure in the US. Specter then speaks with Hayden re: whether an attack has been stopped by this program – Hayden says activities have been disrupted, and that he won’t go further than that. Hayden says that he is delighted that these cases would be before the FISA Court – they understand how the agency works as a matter of routine, and that they have expertise. Having it before a single court might advance the cause of justice, because of the build-up of expertise.

LEAHY ROUND ONE: FISA has been amended 6 times in the last five years. The Administration has never asked for revisions on technology in Sec. 9. The Administration has consistently advanced an argument that the Patriot Act took care of questions. Why is the Administration bringing it up now? Bradbury tries to start off with a spin answer, and Leahy cuts him off. Do you think our discussion today is tipping off our enemies about FISA? Bradbury says…um…watch me tap dance…Leahy asks again…and Bradbury fails to answer. Hayden steps in to answer the question. (CHS: Why is it that this Administration’s political appointees can never answer a question, but the lifer folks like Gen. Hayden can just answer straight out? How hard is it to be honest and answer a freaking question?) Bradbury says that the FISA court cannot take away the Presidential authority (again, doesn’t answer a question). Suppose the government wants to monitor conversations that US soldiers in Iraq are having with folks back home. Title 3 doesn’t apply, because it’s not a criminal matter. Does the government still require a warrant to intercept that conversation under the Specter proposal? Bradbury dances around but does say that no warrant would be required to monitor the soldier’s call. Let’s make it even clearer – soldier in Iraq is sending an e-mail to his wife. Would you need a warrant to collect that e-mail and just put it in the government’s information banks? Bradbury says that is done today pursuant to executive order when it is done for national security purposes. (CHS: This is a great frame by Leahy. Really well done.) This is done under executive order 12-333. No listening in except for foreign intelligence purposes. Leahy says that you didn’t answer the question.

Vote is underway in the Senate. Recess for a few minutes.

Back from recess.

CORNYN ROUND ONE: Starts with a rah rah about using all legal means available to collect information from our enemies that would help us "fight and win the global war on terror." (CHS: Yes, I think we can all agree on using legal means of protecting the national security. It’s that "legal" part that the Bush Administration has been having some difficulty with…and of course, Cornyn doesn’t acknowledge that.) The FISA Court has acknowledged the President’s inherent authority to conduct "battlefield intel." Yes. Blah. Blah. Blah. This has been briefed to the House and Senate. Blah. Blah. Blah. (CHS: Does Cornyn ever say anything that wasn’t on a talking points sheet from the WH? Is there an independent thought in there anywhere? Anyone know him and can shed light on this, I’d be interested to know the answer to that.) Is the Specter Bill new? Bradbury says President has begun surveillance exclusive of FISA, to ensure that the US is protected. The Specter bill gives an innovative new tool for efficient legal mean during wartime, and this is a very important change in the statute. Cornyn then immediately gets back to the Leahy question about military personnel serving overseas (CHS: see – told you it would hit a nerve…) – Alexander says that they do not spend time doing oversight of soldiers overseas, more concerned that other countries would be trying to intercept communications because of security concerns. Hayden says that the act requires that Alexander has to argue to the AG that the targeted person is an agent of a foreign power in order to provide surveillance of that person. Bradbury then jumps on the CYA bandwagon on this as well. (CHS notes: he should have kept his mouth shut, because Hayden was more effective on it, and Bradbury just muddied things up again.)

KENNEDY ROUND ONE: I was here when we first put together FISA. The WH worked together with the Judiciary Committee. Everyone understood that there were technological advances at that time. We were able to work out a compromise legislation that had only a single vote in opposition – we had the confidence of the American public and all of us about the necessity of the bill. We hoped we’d be able to do that with the Bush Administration – not so. We need to get to a bipartisan way of getting at the core of protecting this nation and our civil liberties. And we are frustrated that we are not at that point – that the Administration continues to hold back information that we need to legislate and provide oversight. What are we talking about to the extent that Americans are included in this program? Hayden says that there is nothing more important to the NSA personnel than protecting the privacy of Americans. There is a probable cause standard that must be triggered before communications are intercepted. This is done with great care. Kennedy asks if this is a probable cause standard? Hayden says yet. Number of Americans? Intel committees have been briefed on this. Hayden says he can’t give numbers. Are any of these continuing surveillance? Are there Americans who are subject to continuing surveillance? Alexander says that the overwhelming focus is on foreign agents. There are US parts to that, can’t go into details focused on al qaeda. Hayden breaks in to emphasize that one end has to be affiliated with a foreign end – generally al qaeda. Kennedy says that there is a difference between a single conversation tap and a 24-hour a day tap. Alexander says that they try to focus on the most important and not do continuous where not warranted. Has this information been used in any trials to date? Hayden says it moves outside the intel committee with all the appropriate caveats with regard to use or not. He doesn’t know if it has been used or not.

FEINSTEIN ROUND ONE: As a member of the intel committee, have been briefed on the program. And I am strongly opposed to giving any President the right to collect content without a warrant on a US citizen. Heard Gen. Alexander say that if the foreign switching can be shown, then they can surveil without a warrant, even an American. Alexander says that is not quite right – backtracks from earlier statement. Target of selector is foreign – Feinstein says that those numbers are not necessarily prohibitive of a FISA warrant, and she would like the warrant where possible. Bradbury then goes into a colloquy designed to flatter the aspects of the bill that Specter adopted from the prior Feinstein/Specter version. Hayden says that is why he talked about the four criteria in his opening comments – the legislation moves the legal focus back to "who are you targeting" rather than the techniques that you use to carry it out. Specter’s bill eliminates the 15 day window after a declaration of war for not having to get warrants in the emergency period – this could be interpreted to mean that the President could have unlimited authority after war is declared. How long would it continue? For decades? Bradbury tries to float out the unilateral presidency under Art. II. Feinstein says that once the 15 day period is deleted, it would be interpreted as without end. Bradbury says that if there is a declaration of war, then FISA would not apply. In the event of armed conflict or declaration of war, there would be some accommodation made regarding that period of war. Where is justification for finding an Article 3 courts? Congress, by statute, has given them a special assignment. As does a court who approves a title 3 warrant. Feinstein asks if there is a Magistrate who is currently serving? Bradbury says no, he doesn’t think so.

Feinstein questions how court could be an advisory approval rather than interpreting information gives her great pause. Bradbury points to In re Sealed. Extended discussion regarding whether FISA court would have to give a program-wide approval or an individualized order with regard to constitutionality for a warrant – or get an order from the court that would compel cooperation, just like a Title 3 warrant, according to Bradbury. Similar construct to FISA orders, Bradbury says. Feinstein says that she thinks this is the crux of the matter. Essentially, there are no holds in your bill on the President’s authority. Once that passes, any individual could be wiretapped in this country and there is no end to that wiretap. Once for content you go to programatic approval, other people can be slipped in. You open a Pandora’s box – there is no timely programmatic review, no decision made as to how long the content can be maintained, no review on whether or not it can be cut off. Bradbury says that the Court could review it. (CHS notes: well, that’s fine and dandy, since the bill also makes the court review optional. Anyone trust the Bush Administration to seek timely court review?) Bradbury says that the court would only approve for 90 days, then would have to be re-approved. Feinstein says knowing the numbers of the foreign to foreign, you are saying that every one of them would be reviewed every 90 days? Bradbury then waffles, and says it would only be focused on surveillance of persons where one of the people involved is a person in the US. Court would be free to ask for any additional information, should they request it – would be up to the court with regard to the reasonableness standard, etc.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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