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SJC: FISA — Protect America And The Rule Of Law, Part I

ming31.jpgThe Senate Judiciary Committee has a hearing this morning beginning at 10:00 am ET regarding “FISA Amendments: How to Protect Americans’ Security and Privacy and Preserve the Rule of Law and Government Accountability.” It doesn’t look like C-Span will be covering the hearing this morning, but you can listen to the hearing on the Senate Judiciary Committee feed.

Because this isn’t a televised hearing, I’m going to have to type much more quickly in order to capture the testimony. Please hold comments to a minimum so that I’m not having to put together new threads too frequently — I miss things in the stop and start on that, so the fewer times I have to put up a new thread, the better for everyone. Background material on all of today’s witnesses can be found here.


Leahy: FISA supposed to protect national security and privacy. FISA should not be changed because of fear. Changes must be considered closely. “Protect America Act” was one of the worst ways to update FISA. PAA will expire next year. Need to accommodate legitimate nat security concerns, but we need to do so in a way that protects Americans. S228 grants immunity, or amnesty, this seems to be contrary to FISA and violative of privacy rights of Americans. Specter and I have always been clear that we need legal justification. Since President’s wiretapping program became public. After our repeated requests did not yield the information requested, we issued subpoenas. Finally, this week, the Administration responded. Senators have begun to receive access to legal opinions. I insisted all members have access and that was agreed to in a meeting yesterday. Congress would be careful NOT to give corporations immunity from violating the law. A retroactive grant of immunity does more than let the carriers off the hook. Immunity is designed to shield this Administration from breaking the law. It would make it impossible for people to obtain redress. My chief inquiry before I support any legislation on this subject is whether it’s going to result in government accountability. Anyone proposing immunity has the responsibility to test the legality of the program to decide whether American privacy has been violated. We in the Senate have a solemn responsibility to 300 million of our fellow citizens. American rights can be easily lost, once lost it can be very difficult to win back.

Specter: We’ve made a lot of progress in the last year. WRT retroactive release from liability, I have great reluctance. Part of that stems from secrecy when we were seeking subpoenas for the telephone companies. We were thwarted by actions of the VP in contacting members without notifying the Chairman [that is, Cheney went around Specter]. I doubt the cases will be proved, but if plaintiffs can prove them they ought to have their day in court. We had a closed door briefing on what is happening. We need more briefings. The govt is reluctant to provide this information. The session we had yesterday was an important one. The Chair has referred to nomination of Mukasey, that is a matter which covers the issues which are before us now. We ought to have a closed session. Earlier I had an extensive briefing by Hayden. There are people who overlap with SSCI who know about the details. I believe it is a matter that the whole committee ought to be informed about. Mukasey’s letter goes about as far as he can go. Let’s face the facts. The facts are that an expression of an opinion by Mukasey would put people at risk for what has happened. Rummy was in France and there was an effort to prosecute him [yeah baby!]. We need to have a closed door session so we can talk about waterboarding.

[Shorter Specter: it doesn’t shock the conscience to waterboard Zubaydah]

Leahy: Mukasey will be on the agenda on Tuesday. There are a whole lot of other issues that he responded to, among other things, executive authority, his views on ability of executive to override laws passed by Congress, his views on the ability to pre-empt Congressional actions. It’s not just waterboarding. Used to be that Republicans would condemn torture.

Leahy: We have before us Kenneth Wainstein. [Leahy swears him in.]

Wainstein: Important matter. Three specific points. First, why Congress should permanently legislate core provisions in PAA. How we’ve gone about implementing PAA. Comments on the SSCI bill [coded comment: I want to pitch immunity] S228, voted out on strong 13-2 vote.

Why core provisions need to be made permanent. Critical if not the most critical element of our defense against terrorists. Before PAA our surveillance ability significantly impaired. Court review process that Congress designed, applied to internal, and not to overseas. [Describes the passage of PAA] We recognized that Congress would only reauthorize PAA if we conducted our program responsibly. We did far more than required by statute. [So why not continue to do to those things, Ken?] We’re still reviewing S228. We believe immunity is necessary, both as a matter of fundamental surveillance and to make sure providers will continue to cooperate. We do have concerns about certain provisions of the bill: sunset, and requiring FISA oversight of tapping of US person outside of borders.

Leahy: SSCI said govt provided letters at regular intervals. All these letters state authorized by President, all but one said AG deemed them legal. Is it the position that these letters were certifications that made it legal to assist the govt?

KW: Those letters were assurances that they were authorized by the President.

Update: ACLU observer Tim Sparapani agrees that this is a dodge, effectively admitting that the telecoms didn’t have full authorization:

Wainstein bombshell in Leahy’s first question. He all but said that the
gov’t did not provide legally-sufficient AG certs to the companies. They
got “assurances” but not FISA-compliant letters.

Leahy: If they said this was making it illegal, why provide immunity? Wouldn’t it be better to maintain faith in the govt? The govt has already told the carriers this was legal?

KW I understand the sentiment that people should be allowed to go into court. The problem here is there’s a basic issue of fairness. [KW just shifted in his propaganda voice] Govt went to providers.

Leahy: Why shouldn’t it be enough. If you feel secure in what you did, why ask for further legislation? Unless your not comfortable with having made that certification.

KW: The concern is airing out what the companies did. If there are to be lawsuits, they should be against the govt. It’s unavoidable that very sensitive, classified…

Leahy : Classified info is looked at in camera. You had that as USA.

KW: Yes, that’s right. The whole mode of conduct is a highly classified program. [This comes off as BS] So every little nugget of information helps our enemies.

Leahy: Should be prosecuting the NYT for printing this? Congress found out the things that were supposed to be reported to Congress, we found about it from reading the Times.

KW: These providers might well have facilities around the world, if they get identified,those facilities might be subject to risk.

Leahy: For those who think there should be accountability on the part of the govt. They didn’t go to Congress. Somebody leaked all this to the press. How do you find a way to assess the legality of this program?

KW: The concern people have is with the legality of the program, any litigation should be directed to govt.

Leahy; GOvt will say “State Secrets” so there is no way to hold govt accountable. If we give blanked amnesty, you’re not going to be able to sue the govt. They’re going to say state secrets.

KW: We’re in that position right now.

Leahy: Why. Why can’t they go to classified info taken in camera.

KW: We have to invoke the doctrine. [In other words, he had no answer for that] If there’s wrongdoing, that accountability is being ferreted out in other very traditional ways outside of litigation.

Leahy: The House is calling for IG to audit all programs that operated outside of FISA. They want to audit it even if we grant retroactive immunity. Do oppose such an audit?

KW: We do have some concerns about DOJ IG to audit intelligence activities, “it’s outside his lane.”

Specter: Let’s review the role of the courts in protecting civil liberties. The courts are better at protecting civil liberties. This admin expanded its authority. We passed PATRIOT, imposed some limitations, then we found a signing statement not to pay attention to the negotiated limitations. If we are to close the courthouse door to 40 litigants, we are undercutting a major avenue of redress. If Congress bails out whatever was done before, that is an open invitation for this kind of conduct in the future. Why not provide for indemnification. The telephone companies have a good case in saying they responded to govt request, and telephone shouldn’t have to weight national security. Isn’t the cost of those lawsuits part of our overall battle against terrorism. Isn’t it an infinitesimal costs? Govt invoking State Secrets very broadly. It’s a two-part question. Why not indemnification? Isn’t such indemnification likely to cost govt little, since these suits are destined for failure?

Specter: Telephone companies seemed to think indemnification would fix the issue.

KW: Anything that keeps the litigation going compromises sources and methods.

Specter: If people suing know something, it must be in public domain.

Specter: McConnell said 46 US persons abroad under surveillance. Why not require probable cause? Also US persons recipients of calls overseas. Where is a US person is targeted abroad or a US person is under surveillance from foreign call, why not probable cause?

KW: What used to happen is that a person surveilling had to represent themselves, it has been upheld by the courts. You’re taking FISA and putting it into surveillances targeted outside US. That is a new extension of FISA court jurisdiction. Could potentially bring FISA to operate within areas of foreign laws. Some of this should be discussed in classified setting.

DiFi: Immunity and exclusivity provisions. I’d like to urge you to read the additional views of me, Snowe, and Hagel. I’m not satisfied with this bill. It does have loopholes. It is my belief that Administration exceeded its authority in terrorist surveillance. This has happened before. If we don’t learn from our mistakes. I am concerned about use of presidential authority. President has claimed AUMF. There was no Congressional intent that it be used for this purpose. I believe the initial part of the terrorist surveillance program was illegal. I want to prevent loopholes. With my belief that Admin proceeded illegally, I’m aware that Exec assured companies, those assurances may have been wrong. These were the assurances that the companies were given. I understand tenor within the country. Letter dated October 29, signed by Ashcroft, Comey, Philbin, and Goldsmith makes this comment. When corporations are asked to assist intell, based on assurances that program determined to be lawful. Should be able to rely on those representations. But. The question arises whether the situation can’t be better handled. I wonder how the Admin would feel about capping of damages at low level. Indemnification: It’s a problem when you say the taxpayers should pick this up. It’s not the taxpayers who did this, it’s the Administration. Why not indemnification and a cap.

KW: I answered indemnification with Specter. We’ll still go through litigation, still risk that classified info disclosed. providers will go through reputational damage, all for having done something based on assurances from highest levels of govt. All those other issues are still there, even if you cap damages. As to first question about TSP and exclusivity. I know there’s an exclusivity cause that makes the point quite clearly. The nice thing about that legislation. We’re moving toward a point where we’ve got exclusivity.

DiFi That’s not what this language does. It would allow a loophole, or more than one loophole.

KW: We have operated with exclusivity since January of this year. It is under FISA court order. If we have a scheme which we can use more easily to protect the nation.

DiFi: My time is up. I disagree with you about exclusivity, subject for classified session, Admin should be candid about what is in exclusivity and what is out of exclusivity.

KW: Operational concerns about exclusivity clauses proposed.

Hatch not here, Kyl.

Kyl: Object to notion that DOJ is dysfunctional. Just needs leadership. So we should approve Mukasey.

Kyl: Legal authority [reading from opinion]–President did have inherent authority to conduct warrantless searches. We take for granted that President does have that authority. Do you know of any other case that has commented on Presidential authority? FISA confirmed that President had authority overseas. We have had for decades overseas surveillance that has not required a warrant.

KW The problem is taking us away from original design of FISA.

Kyl: Your understanding of the word allegation. Do you know of any allegation that these companies committed crime for which they’d need amnesty?

KW Patriotic duty.

Kyl: That’s my sense too. [someone has done the homework to prepare Kyl. Any bets he had breakfast with David Addington this morning?] We should bend over backward to ensure citizens protected for national good. [Hey Kyl: there’s a difference between corporations violating laws that govern them and citizens doing so] Difference between indemnification and immunity. Would suits be brought forward if State Secrets doesn’t work? In addition to possibility there would be the difficulty of going through this litigation.

KW Reputational damage. Reputational damage. Reputational damage. We don’t want them to second guess our requests.

Kyl: Wyden amendment includes US persons, including US green card holders. [Kyl wants to spy on my husband next time we go to a pub in Ireland.]

Leahy: prior to this being made public in press, there was only this presidential directive. After it was made public, admin went to FISA court.

KW We obtained FISA court authority in January of this year.

Leahy: After it became public. No question in your mind if telephone company has court order, that clears them, there’s no liability on part of telephone, or bank. No suits can go against them, because they’ve responded to court order.

KW We engaged with process of going to FISA before it became public.

Leahy: I have a chronology in mind. [Looks like he doubts it]

Feingold: Product of Intell committee doesn’t do the job. The mere fact that it’s bipartisan doesn’t make it constitutional. Reminds me of the PATRIOT Act. Three courts have struck down provisions of the PATRIOT Act. Courts will strike this down if we fail to fix what Intell did. Does President have authority to authorize surveillance beyond FISA?

KW: Constitutional question. White paper in aftermath of disclosure. President did have inherent authority to conduct communications surveillance to protect nation. This legislation obviates the need to engage in that.

Feingold: If bill authorized by SSCI became law, would the President have authority to authorize surveillance beyond the law. What’s your view?

KW: [Hedges some] There’s clearly authority in exec to authorize surveillance.

Feingold: Clear under Jackson’s test, the opposite conclusion is warranted. We’ll have to get a new President to get a President whose views are not so expansive. Govt’s minimization after they’ve gone into effect. and Govt audits its own compliance. What can court do if it decides the Administration is not complying? [note, Whitehouse will hit this hard too]

KW The court does not conduct ongoing compliance reviews. Reasons for that. In original FISA they do. Minimization applies to particular surveillance.

Feingold. Right without remedy. Court has right to review, but not to do anything about it.

KW: A much more comprehensive compliance review.

Feingold: I hope my colleagues are hearing this. This involves court that has oppty to review, with no ability to say to the Admin, you screwed up, and you’ve got to change this. This is in this Intell bill which is being labeled as adequate.

KW There are any number of oversight mechanisms. We’re trying to be as transparent as we can.

Feingold; I hope my colleagues heard it, they have imposed these rules on themselves. We do not have the court overseeing this. PAA: Bulk tapping of all communications originating overseas would be authorize. Would that be true here?

KW Only if foreign intell purpose. Presumably vacuum approach not intell?

Feingold Would you be willing to support language saying that such a vacuum approach is not authorized.

Sessions: This program is critical. We’ve approved it. Do you consider this a critical program?

KW: Absolutely. Those gaps closed just like that.

Sessions: If you talk to people at NSA, they’re very careful about what they do. It’s saving lives. Our men and women in military. Blah blah blah. Preserve their safety and their lives. It’s constitutional. Now we’re reduced to an argument over whether people ought to be able to sue the telecom companies. It’s not a right phrase, that we’re letting them off the hook.  They were told it was legal.

KW They were given assurances. [Note again, KW won’t say they were told it was legal]

Sessions: One of our colleagues said this may be the only outside review. We’re the ones who are supposed to review this program, right? [To hell with the COurts! We’ve got Cheney, who needs the third branch of govt???!?!?!] These are filed by lawyers associated with groups associated with terrorists.

KW These companies operating at our request, on our assurance. Direct concerns to govt.

Sessions: It’s my impression that indemnification not sufficient. I’m certain they think it’s not sufficient. I’ll offer for the record, op-ed in today’s WSJ, Benjamin Civiletti, Thornburgh, Webster think this is important legislation. Dragging phone companies through protracted litigation would deter others. [Sessions, be careful, Thornburgh’s on the outs since he believes the Bush DOJ has launced political investigations]

Leahy: I want to make sure I understand. Has there been any suggestion that we should not be doing electronic surveillance of people who pose a threat to the US?

KW: What we’re seeing now is a fairly good consensus that we need tools to do it.

Leahy: I’m sure the Senator from AL would not want to leave the wrong impression. I’ve yet to hear any Senator or House member say they feel we should not be surveilling people.

Sessions: I would say that this Admin has been under severe political attack and by passing PAA and by the vote of the Intell Committee, this congress has said they’re doing legitimate work.

Leahy: This congress has been concerned that this Admin has not followed the law.

Cardin: Thank you for clarifying the record, Chairman. We want to make sure it’s consistent with civil liberties, by complying with that the information will be more valuable. You talked about concern about sunset. You then talked about cooperation with Congress. I question whether we would have gotten the same level of interest if there were no sunset. [Bingo] Six years from now, can you anticipate where technology is going to be? Technology changes very quickly, and we need to make sure we have this law reviewed. Why isn’t a sunset good?

KW I’m not reflexively resistant to sunsets. When Congress is in position of dealing with immediate need, it makes sense to sunset. We’re not resisting oversight. My feeling is that once you’ve had that debate, go ahead and legislate, you don’t need a sunset.

Cardin: When we’re required to act, we act.

KW Whenever you confer authorities on law enforcement, when you have to shift gears.

Cardin: I think it’s helpful to have a sunset. Let me go to US persons overseas. How few people fall into this category. We want to balance rights of individuals against difficulty of probable cause standards.

KW We’ve heard that from a number of your colleagues. There is a process in place.

Cardin: There’s just a few that fall into that category. DNI has said it. His number was mid-50s. I want to get to the immunity. This is a difficult subject. You use the good samaratin analogy. It makes sense after 9/11. This program has been reauthorized for 6 years. The telephone companies have had plenty of chance to review this. Did the telecoms have any responsibility to privacy of their customers, to make an independent judgment.

KW Overseas US person. One concern, we’ll discuss in closed session. That requirement’s not in traditional law enforcement side. In terms of obligation of carriers.

Cardin: They have pretty big legal staff. Pretty sophisticated companies. I have seen the letters. If I were a lawyer for the service providers, I would have asked for indemnity. THis has been going on for many years. I find it hard to believe that big companies with legal staffs never asked for more legal protection.

KW Those assurances are there. I don’t know that we want the legal staffs of the communication providers to challenge our directives. We want to not encourage it by alleviating any possibility of liability.

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