Rodeo Redux

Well, well... it looks like there's an actual sack in the House and there appears to be real hairs growing out of it.  The House sent the FISA bill out the door yesterday (3/14) without the telecom immunity provision amounting to a big 'fuck you' to that tap-dancing douchebag fool in the Oval Office.  The bill also gives the federal authorities the right to investigate the surveillance program, and it would establish a commission to investigate the activities of the intelligence agencies over the last six years. 

The vote missed the 2/3 necessary to overide the inevitable veto but at least the Administration will have to follow normal FISA rules from here on out.  It's doubtful the Senate would agree to send it along anyway since their bill gave Bush everything he wanted and more- including Nixon-era black bag jobs.

The House bill allows the Administration more time (over the 72 hour deadline) to inform the court after they wiretap.  The bill would also allow the telecoms closed-door court hearings- so it's not to take on the appearance of a witch hunt.

Bush, and his advisors have repeatedly used the word 'cumbersome' to explain why they oppose the bill.   There is nothing cumbersome about this process.

He [Bush] accused House leaders of “putting in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists.” Actually, the bill merely ensures that special judges continue to supervise surveillance of American citizens. The “cumbersome process” is really a court that acts swiftly and has refused only a half-dozen of more than 21,000 wiretap requests in its nearly 30 years of existence. 

A lot of the public, and of course the media, seem strangely apathetic to this whole issue.  With the showdown in the House certain outlets are forced to address it but it is obvious there needs to be a complete public vetting of this entire program and all activities associated with it barring of course critical national security details. 

The fact that Bush has directed the gov't to spy on whomever it pleases without oversight, without legal basis, without any approval process is seriously eroding the civil laws put in place to protect the citizens of this country.  Russia, China, North Korea, Cuba, Burma, on and on all have ways of keeping their people silent and passive.  In the US, we don't have to put up with that kind of bullshit- why people do is insane.

Comments

[Jack Klompus]

"without the telecom immunity provision"

As it should be. Telecoms are already granted a certain level of immunity in regards to these circumstances. What needs to be reviewed is whether or not they acted recklesslessly. Nobody should be exempt from oversight -- especially in these matters. If they have the nads to request that we trust them to treat us objectively, they should allow us the same.

"The bill also gives the federal authorities the right to investigate the surveillance program, and it would establish a commission to investigate the activities of the intelligence agencies over the last six years."

On the other hand, it seeks to require probable cause regarding foreign-to-foreign communications -- ridiculous, and something that's never been required -- not even under the original FISA.

"There is nothing cumbersome about this process...The “cumbersome process” is really a court that acts swiftly and has refused only a half-dozen of more than 21,000 wiretap requests in its nearly 30 years of existence."

I don't think it's quite that simple. They won't even go to the FISA court unless they have probable cause, or something that looks like probable cause -- generally pertaining to people that have a history of nefarious connections. So yeah, almost everything that goes in front of those judges is gonna be approved. The problem lies in establishing probable cause, and that's primarily where the telecoms come in. They provide a much broader capability of data mining in attempt to discover less obvious/newer threats. Of course, it also provides a much broader capability for abuse. However, the eternal optimist in me would think there's a way to safeguard this process proactively to limit the kinds of abuses we've seen with the FBI and the Patriot Act. Because it's not the Patriot Act itself that is abusive -- it's the way the FBI conducts itself combined with the lack of proactive oversight that makes it so easy for them to cut corners. The other issue at play here is the bureacracy. Law enforcement agencies (and especially agents) by nature prefer to operate without a lot of red tape/paperwork. Laziness or not, if they have to choose between paperwork and doing nothing, they'll often choose nothing (as would most people). Am I advocating we sacrifice our privacy so people don't have to do paperwork? Of course not. I'm simply pointing out the obvious bureacratic role in this.

"A lot of the public, and of course the media, seem strangely apathetic to this whole issue"

Probably because we all understand a coupla things: 1) It's overwhlemingly more about politics than it is about constitutional rights or national security; 2) Secret surveillance (in one form or another) has been going on since George Washington was in office, and will continue to go on. If they don't do it themselves, they'll outsource it (as they've already been doing).

For the record, Kruger, I'm not for unconditional warrantless surveillance.

[TMan]

Klompus,

First, FISA requires probable cause for only two situations: (i)if the target is not a US person, then the AG must simple certify to that; or (ii) if the target is a US person, then the AG must certify that the target is not the target based solely on protected free speech. See 50 U.S.C. Section 1802. And both of these may be made after the fact, so the whole red tape argument is not persuasive.
Second, I think what the President wants is way beyond doing away with the red tape. It seems to be in keeping with his desire to expand the powers of the President beyond the boundaries of the Constitution. What's ironic is that I think his legacy will be the opposite: because of his tenure, the other branches of government will fight executive power more rigorously.

[Jack Klompus]

"so the whole red tape argument is not persuasive."

I think maybe we're talking about two related, yet different things. I wasn't saying that we should forego FISA courts and probable cause because of red tape. I was saying that red tape (whether useful or not) deters agencies and agents from pursuing potential leads because of laziness and/or backlogs. And that's a fact that needs to be accounted for when considering the statistics regarding number of requests granted and the they-can-file-retroactively-within-72-hours allowance for emergency requests. I think you need a combination of streamlining the warrant process and streamlining the way the agencies operate, without leaving large vulnerabilities on either side of the equation. It all has to adjust in proportion to demand for intelligence and advances in technology. Easier said than done, of course. But so, too is the idea that the original FISA can be left as-is.

"It seems to be in keeping with his desire to expand the powers of the President beyond the boundaries of the Constitution"

He has less than a year on his term. The only way this would benefit him now is if he's hiding something much worse than what has already been revealed (which is entirely possible). As for what's already been revealed, the position that FISA does not supercede the office of the prez has been the same with every president dating back to Carter.

[TMan]

I understand what you're saying, but I don't agree. It should take some effort for the Executive branch to be allowed to spy on Americans. I am not the eternal optimist and know from first-hand experience that people in positions of power will abuse that power unless there is some check on them. And I don't think that Bush is pushing for this because law enforcement officers are lazy. I think that the current administration has abused the FISA system and continue to do so by repeated fear-mongering that the "terrorists are coming to get us". And I think the FISA thing is about past and current misdeeds.
I know that there are real threats out there (my friend was on the team that just put that sailor who sold naval deployment secrets in jail), but I also think that we need to preserve the tenants of the Constitution. Bush has already pissed all over habeas corpus without repercussion. I think the FISA thing is about past and current misdeeds, not about keeping pace with current developments in technology. FISA allows the AG to tap now and ask permission later. Why is that unworkable?

[Jackie]

"I am not the eternal optimist and know from first-hand experience that people in positions of power will abuse that power unless there is some check on them."

Details?

[Jack Klompus]

"I think that the current administration has abused the FISA system and continue to do so by repeated fear-mongering that the "terrorists are coming to get us"."

I don't know about abuse of FISA, but I will agree a large amount of fear mongering has been done. However, it's been done on both sides.

"I think the FISA thing is about past and current misdeeds, not about keeping pace with current developments in technology."

I think it's a bit of both. With the latter, you have to bear in mind that we now have a much greater volume and variety of communication devices to target than we did when FISA was first drafted back in 1978. Back then, we were primarily just bugging a phone or intercepting via satellite. It's much more complex now, with transmissions being routed many different ways. In some cases the technology makes it easier for our agents, but sometimes it makes it easier for the suspects instead.

"FISA allows the AG to tap now and ask permission later. Why is that unworkable?"

I don't think it's necessarily unworkable, but some adjustments need to be made to account for changes. At the very least, set clearer parameters around cases involving communications between foreign suspects and American citizens.

And I think the FISA thing is about past and current misdeeds.

Thanks for bringing that out Tman. At the core of this issue is realization that if an investigation is not put in place and the activities in question not brought under the scrutiny of the legislature and the judicial system then precedents will be set that will allow these violations not only to continue but also intensify. Then you would have a serious and palpable erosion of civil law.

Laws are useless unless they are enforced.
When officials from several intelligence agencies release statements saying they think they might be violating constitutional law- you can bank on it that they have. No way would they go out on a limb like that unless they were trying to cover their ass. Bush, on the other hand, is too stupid to realize the damage he is doing, and even if he did he probably wouldn't care. He's denied prisoners a trial by jury, speedy trial, access to evidence against them; rendition (aka kidnapping and then torture); excessive interrogation methods with no oversight or approval and in direct conflict with military standards; secret surveillance program; not to mention the Federal Attorney firings, outing an CIA agent, and refusal to release documents directly related to national policy.

Probably because we all understand a coupla things: 1) It's overwhlemingly more about politics than it is about constitutional rights or national security;

I think your grossly mis-characterizing this as "political". First off many democrats are siding with republicans which is why there's a stand-off. The democrats have nothing to lose by pushing back on this.
The ones that do most likely had knowledge of this program before it grew into another disaster. Or they are largely indebted to the corporations being sued. This is not a political issue for those of us understand it . It is a fundamental rights issue that can have disasterous implications in the future.

2) Secret surveillance (in one form or another) has been going on since George Washington was in office, and will continue to go on. If they don't do it themselves, they'll outsource it (as they've already been doing).

Right, you had surveillance on the Tories, the anarchists, the communists, the hippies, and the Kennedy's. But this is different. This is a broad reaching across any one group or political party. The current domestic spying program is throwing a huge net out into public sphere, dragging everything in, and then looking to see what it has come up with. That's exactly the kind of broad, over-reaching the Constitution was designed to prevent.

[Mr. Kruger]

That was me again- must have timed out for fuck sake.

[Jack Klompus]

"I think your grossly mis-characterizing this as "political". First off many democrats are siding with republicans which is why there's a stand-off. The democrats have nothing to lose by pushing back on this.
The ones that do most likely had knowledge of this program before it grew into another disaster. Or they are largely indebted to the corporations being sued."

Oh. Well when you put it that way, it doesn't sound political at all...

"This is not a political issue for those of us understand it ."

Ah, the qualifier. Fair enough. I'm with you on that. Unfortunately, though, for the people that are deciding on it -- it is political. And it's an election year -- nature of the beast.

[Jack Klompus]

"Or they are largely indebted to the corporations being sued."

Oh, one other point. To be fair, there are quite a few Dems pushing back that received nice contributions -- from the trial lawyers licking their chops over these enormous lawsuits agains the telecoms.

[TMan]

Jackie,

How about, when I was in high school and we took a trip to Russia. It was 1989 so the Iron Curtain was still going strong. My buddy and I wondered off from the group and ended up getting lost. Two Russian cops shook us down from basically everything we had on us to get us back to the hotel. At least I think they were cops, but they could have been mailmen. All I know is that they had uniforms and guns. We had neither. Luckily, all we had were cigarettes (the contraband currency at the time) and a few ballpoint pens.

[TMan]

"At the very least, set clearer parameters around cases involving communications between foreign suspects and American citizens."
I think FISA is pretty clear. If the targets of the investigation are non-US citizens, then the President can authorize a wiretap for up to a year without any further authorization required. If either of the communicants are US citizens, then the government can tap first (in the case of an emergency) then seek approval from the FISA court within 72 hours after the wire has been initiated. I still don't get why this process is outdated or cumbersome.

[Jack Klompus]

"I think FISA is pretty clear. If the targets of the investigation are non-US citizens, then the President can authorize a wiretap for up to a year without any further authorization required. If either of the communicants are US citizens, then the government can tap first (in the case of an emergency) then seek approval from the FISA court within 72 hours after the wire has been initiated. I still don't get why this process is outdated or cumbersome."

Not necessarily. A FISC judge recently ruled that even if a foreign suspect's email originates overseas and ends up overseas, if the transmission passes through the U.S. (as if often the case with emails), it is still subject to the warrant process. Meaning, EVERY overseas suspect using email would require a warrant just to account for the possibility that an email transimission would be routed through the U.S. Or let's say an al Qaeda operative is captured in one of the -istans or Iraq. He could have numerous American cell phone numbers. Each one requires a warrant. And, some or all could be innocent parties, but how do you know until you start surveilling them? Even further, maybe they're not innocent, but how long does it take to establish they're not innocent? Which brings me to my next point. Sure, 72 hours sounds like a lot of time. But these applications are not just Fax cover sheets. They can be a couple inches thick, and take hours to complete (the non-emergency ones take days). And before the emergency tap can be placed, the AG has to be presented with documentation on why he should approve the tap. After that, probable cause still has to be established. And finally, you still have to coordinate the schedule with lawyers and judges. It's not a simple rubber stamp process.

[TMan]

"And finally, you still have to coordinate the schedule with lawyers and judges. It's not a simple rubber stamp process."

And it shouldn't be. My whole point is that if we are going to allow this type of breach of the Fourth Amendment, there should be a fairly high barrier and take a great deal of effort. As the current administration has ably demonstrated, they are incapable of dealing with an unfettered right to spy without supervision responsibly.