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

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.

This thread starts the second panel: Black, Philbin, and Halperin.


DiFi, in her introductions, hassles Halperin for never teaching on the west coast.

Black: Innovation through open networks. We urge you not to weaken the hand of American companies that must deal with intelligence demands overseas. We do not want to be police agents. Not just from third party liability, we need protection from improper government requests. The SSCI will allow too much surveillance of Americans without a court order. Disturbingly, it gives them immunity. If we continue to make up rules as we go along, any violation can be covered up with retroactive immunity. Retroactive immunity is premature at best. Immunity would perpetuate uncertainty in the future. Future improper requests will be accompanied by a wink, the promise that immunity will be granted once things settle down.

[I wish he had said it’s a competitive disadvantage for those protecting Americans.]

Philbin: Gained experience during service at DOJ. Learned that electronic surveillance is vital tool.

DiFi Pull your mike close.

Philbin: Three points. 1) Support that allow exec to target comm of people reasonably believed to be overseas. 2) Support for immunity for telecom. Warranted for several reasons. The right thing to do. In wake of 9/11, corporations authorized to assist intell, corporations should be able to accept representations from govt. Notion of fairness, as was mentioned in earlier session. Common law immunity to assist law enforcement officer. Allowing to proceed would risk leaking intell information. State Secrets is not cure all. Longer suits proceed, longer this info will leak. Failing to provide immunity would discourage cooperation in future emergencies. 3) Disagree that carriers should be forced to serve gatekeeper role. Telecom not well suited to second guess. Conducting a review of request would require access to info that is not and should not be available outside of govt. But there should also be a review of legal bases. Ensuring that all IC activities adhere to law. The question of liability is distinct. The method is through rigorous oversight within the Executive Branch, and oversight with Congress. Private lawsuits not the best way to conduct this oversight.

[Well, then demand the Administration submit to oversight, then.]

Halperin: I hope committee will look at views of other groups. I want to look at immunity and sole means. The discussion totally ignores history and legislation before us. Historically, if you’ve got a certification from the govt that says it adheres to FISA, you must cooperate. If you get something else, they’re supposed to say no. [Halperin doesn’t say it, but we know from the SSCI report that this is precisely what happened.] The law was absolutely clear. To cite the common law that you need to cooperate ignores the fact that Congress answered that question with great precision in FISA. There are ways to be clearer, to say, you either have a warrant, or something else. That’s a rule going forward bc it’ll leave them to cooperate because there’ll be no judgment. We’re telling them to cooperate in the future to cooperate only if govt meets standard for certification. I’d urge you to add language that “when purpose is to learn about American, must be FISA.” You do need to give FISC more leeway, on minimization. I think a judge would say, I will decide it. Congress needs to make it absolutely clear that Congress needs to supervise every aspect of FISA.

DiFi: If one added a few words to say warrant must accompany. [Reads from bill]

Halperin: Other change you need to make is in D, certification. You need to make it clear that a certification has to be based on specific law.

DiFi: Philbin, what do you think of that?

Philbin: Not sure if I have a well thought out response. Relationship is complex, and that is how exclusivity would be determined. I think it’d be a mistake to restrict how certification provided.

DiFi: Except, TSP now under FISA. It seems to me that what Halperin suggested is really the way to handle this. Presidential cert doesn’t provide guarantees to telecom (certainly doesn’t this time, and I’ve read it). The court provides the guarantee to the citizen and the telecom. We’re going to put as much of this under FISA as possible.

Halperin: Urge you to require govt to get FISA before cert. If you’ve got an emergency provision, it says to providers you do it.

DiFi: And Court will give program warrant.  I don’t think it hobbles executive at all.

Philbin: An improvement in FISA that court can provide programmatic approvals. Impossible to predict now every exigency. You want to legislate immunity to cut down immunity going forward.  If objective is to provide immunity only where that kind of paper is given will achieve that effect. Not possible to predict now that FISA would have everything covered.

DiFi: We’ve reached a stage where executive didn’t go to court. That’s a big lesson for us in preventing this from happening again.

Specter: Mr. Black, I note you worked with Kissinger during Nixon. That might have been the time when Halperin was under surveillance.

Halperin: So did I?

Specter: Was Mr. Black under surveillance under Kissinger?

Specter: Why not indemnify participation. I want to thank you for standing up with Mr. Comey. Why not indemnification.

Philbin: I don’t think the problem with indemnification is that the lawsuit proceeds with the carriers bearing the cost of defense. It’s not the money that is the problem. The burden of the litigation. Reputational and other harms of going through the litigation.

Specter: what info is going to be disclosed? We couldn’t even get it disclosed to the Chair of the Committee.

Philbin: the decision not to give it to Chair was made by executive. The decision here would be made by an Article III judge.

Specter: Doesn’t the President have Article II power?

Halperin: Almost all the circuit decisions are pre-FISA. SCOTUS has never spoken on this.  I think there may be extreme power in extraordinary situation when under direct attack. Whatever power there is you can’t take away. What I think Congress has right to do is legislate rules for service providers. You cooperate with a warrant.

Specter: You want it limited to counter-terrorism only. Why shouldn’t we listen to what Iran is doing with nukes?

Halperin: We do listen to this. There are different issues with terrorists in the US. The old rules were good enough in listening to the Soviet Union.

Specter: Agree that only two of us here to question you. You have not been treated as you should be. Not discriminated against.

Hearing adjourned.

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