CommunityFDL Main Blog

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

The 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.


Cornyn: Sunset in February. Bringing up the false example of the kidnapped soldiers in Iraq as an example of the difficulty of getting a subpoena. Blah blah blah. “I’m going to pretend this line hasn’t already been debunked, so maybe people will believe us again that we couldn’t tap the Iraqi kidnappers simply because Paul Clement had ‘left the building’.” Is this the kind of impediment that you’re trying to avoid?

Update, From the ACLU’s Tim Srarapani in the hearing:

Cornyn references bogus, debunked claims about kidnapping of 3 soldiers
in Iraq. Because the kidnappers were foreigners in Iraq, no warrant was
ever needed. C’mon Cornyn. Why is the truth always the first casualty in

KW There were some novel legal issues there. In any emergency context, AG and now delegated to me [please someone ask why he wasn’t authorized at this point], within 3 days we need to persuade the FISA court that the person is agent of foreign power. Not only impediment, did preclude us from legitimate target overseas.

Cornyn: The timeline was in published news reports. Report according to Rupert Murdoch The NY Post the delay because of the FISA law contributed to this young soldier’s death. Retroactive immunity. Some question whether we ought to cap damages.

Whitehouse: Let’s make sure we know what we’re talking aout. There’s nothing in PAA to prevent IC from surveilling a family on vacation in the Caribbean. There’s no judicial review of that, right?

KW There’s a judicial review of the program. [Babbling]

Whitehouse: But no judicial review. I see no directive preventing the FISA court of reviewing the determination of whether someone overseas has intelligence purpose. What we’re getting at is what is the best way of protecting Americans when they travel overseas. You indicated that you thought there’s a difference between criminal and intell law. Has DOJ ever wiretapped an American citizen outside of US without court order.

KW I don’t know historically.

Whitehouse: Are there any Americans being surveilled outside of US without a court record. Take those questions for a record, please.

Whitehouse: Does DOJ

KW I was criminal prosecutor for 15 years, used Title 3, used regular warrants in criminal prosecution. That construct wouldn’t work in terrorism.

Whitehouse: Wouldn’t work for who? Americans targeted abroad numbered 56. In context of $40 billion to put together package so that an American knows they enjoy protection overseas.

KW I recognize that’s a different kettle of fish.

Whitehouse: as far as we know, SCOTUS might decide they have a warrant right.

KW Operational concerns. No emergency provision.

Whitehouse: I’m with you on emergencies, my time is done.

Graham: Two concepts. We’re at war. Executive believes that in time of war there’s just one branch of govt. Did you ever feel comfortable that when we authorized use of force with Iraq, that Congress gave you authority to avoid FISA? Do you personally feel comfortable with that legal reason?

KW I’d have to go back and dig into it.

Graham: You’ve been a very good witness. I’m a conservative. But one thing that conservatives and liberals have in common is checks and balances.

Graham: Another concept. Trying to apply domestic criminal law at time of war. Looking at FISA, PAA has found the sweet spot. The idea you’d need a warrant to surveil enemy combatant. If you find someone you suspect of being enemy force, we have the ability to listen in.

KW For foreign intelligence purposes, yes.

Graham: If someone’s calling me from overseas and you believe that’s a terrorist, I don’t mind you listening in. But if you believe I’m part of a Fifth Column movement, I want you to get a warrant, bc you’d be wrong. Do you think it’s a burden to go and say “we believe Lindsey Graham is a terrorist.” That’s not a burden, is it?

KW It’s a burden, but it’s a burden we take on.

Graham: If you had said that three years ago, we wouldn’t be here. But I do believe it’s a burden on overseas. What chilling effect is there if a company can be held liable?

KW From a personal parochial perspective? That’s the big concern. Our job is to enable the IC to do fast flexible surveillance when it’s appropriate. The next time they’ll litigate it out.

Graham: For my colleagues on the committee, we’re probably hurting ourselves, not letting ourselves off the hook.

Durbin: I should be able to expect to use phone with my identity and communications private. If warrant, it’s acceptable to surveill. Now we’re talking about certifications. You said, when private citizens respond “in good faith.” In course of these negotiations, did any of those telecom providers refuse to provide information.

KW I can’t answer. It’s classified. I wasn’t around. I’m not sure if you went to the briefing yesterday. Colleagues of my answered the chronology.

Durbin: Let me continue in hypothetical way, noting that one refused, according to it’s officer. If one company refused to participate, saying that the certification wasn’t adequate. Should we take that into consideration in deciding other companies operated in good faith.

KW There were letters sent out that represented very forcefully that the President authorized it.

Durbin: If the Telecom provider looked at the certification and decided it was not sufficient, I think that’s relevant for the discussion. Assuming that this company is factual in what they’ve said, we know one company has said, that’s not good enough. Which company operated in good faith? What you’re suggesting is that we don’t want to resolve this. That troubles me. That’ll have a chilling effect on relationship between customers and telecom. How will I feel if I know the telcom companies can disclose my info with impunity?

KW It could be good faith. Or it could be risk aversion. The more companies going to be exposed, the more they’re going to do that.

Durbin: usually that’s resolved in a court before a judge. Sometime after this, our govt decided to go through FISA, that to me was a conclusion of the obvious, which shows where our govt should have been from the start. If they went through FISA, there’d be no argument. But the govt chose not to. We’re in a position where if a telecom asserts my right to privacy against a govt request, then they’re not doing their patriotic duty. Isn’t it reasonable to say that company has a requirement to protect my identity?

KW I’ve not heard of bad faith on part of any companies. I think companies acted in good faith. The SSCI bill gives a good middle ground, targeted immunity post 9/11. But then here on this is the mechanism that we’ll use, we won’t have to resort to State Secrets.

Hatch: Current law, provides that AG directs in writing. I don’t see any non-disclosure language for these directives?

KW [Lost his sound, looks like he agreed]

Hatch: FISC, minmization, wouldn’t this make FISC in the position of where it’s making intelligence analysis.

KW It would put FISC where’s it’s being operational. It would be a tall order for FISC to assess compliance. [This is the big thing here–they won’t give the court oversight on minimization, because they want to do this kind of categorical wiretapping. But that doesn’t explain why this should be excused from minimization–on the contrary, that’s precisely the point.]

Hatch Narrow definition of foreign intelligence.

KW Our foreign intell network a whole range. To have analysts draw lines would be very problematic operationally.

Hatch We live in a big time world here, where a lot of people would like to destroy the US.

KW You can bet our opponents will be trying to get all foreign intell from us.

Hatch They don’t have a problem from us. [Um, we’re not terrorists because we engage in illegal war instead??]

KW What it means that we target someone. The IC takes its gizmos and targets someone outside of the US. Concern is if we’re targeting Ken Wainstein to get to someone in the US. Once we target in the US, we have to use FISA. This legislation makes it clear we can’t do that.

Hatch: Additional time? I appreciate your testimony. I hope people aren’t going to exploit these situations because we’re talking about protecting people in this country. More has been disclosed about what we’re doing than should have been disclosed. [The Mike McConnell school of oversight kills] This warrant overseas, makes it harder to wiretap overseas than in our country. Why would we handcuff ourselves? There are many warrant exceptions to the Fourth Amendment. For example, people attending today’s hearing were forced to go through Magnetometer. That’s a warrantless, but reasonable search. If IC determines someone overseas is agent of foreign power, warrantless search overseas okay?

KW [lists more warrantless searches]

Hatch I’m grateful for additional time. Put in record letter from Comey, Ashcroft, Goldsmith, Philbin. This letter is directed to Chair and Ranking Member. Written to support carrier immunity provision. It is a very interesting letter. We’re talking about protection of our people in this country.

Brownback: We’re going to be in this fight against terrorism for a generation. If we don’t have the telecom cooperation, we’re going to be in a longer fight. I’m glad to see immunity in here. I’m pleased it provides liability protection for communications providers. I was told yesterday that telecom intell is the queen on the chessboard. This does not grant immunity for criminal acts, and for govt officials. Still avenues to challenge program.

[This is so dishonest. Obviously we’re never going to hold the govt responsible if we can’t go through the telecoms. If they really wanted immunity, they should just agree to allow the direct suits against the govt to go through CIPA.]

Brownback: We need the liability limitation. I’d advise someone not to do it without that liability program. Safest is to go through the court system. [reference that WSJ editorial again]

DiFi calls it a close. We’ll move quickly to next panel. (I’ll move to a new thread)

Previous post

Hallelujah -- Pastor Phoenix Rises!

Next post

Close To Home: Bathroom Dispute Talks fail



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.