For the record, here are the four other Members of Congress who are co-sponsoring the ACLU-endorsed Holt bill:

Rep Nadler, Jerrold [NY-8] – 10/9/2007
Rep Schakowsky, Janice D. [IL-9] – 10/9/2007
Rep Tierney, John F. [MA-6] – 10/9/2007
Rep Watson, Diane E. [CA-33] – 10/9/2007

Thanks again, Representative Nadler.

thanks pow wow! i came back to this thread hoping to find an analysis from you.

i was unsuccessful today getting a copy of holt’s bill H.R.3782 (his fisa aide was understandably busy today) – but i was told that 4 of his amendments to the RESTORE ACT were passed today in the intelligence committee mark up hearing.

i will try again tomorrow (unless someone else beats me to it) to try to get a copy of holt’s bill and the amendments he submitted for the RESTORE ACT.

thank you again for your analysis… i find it extremely frustrating that the process is so opaque, and you’ve helped focus on the key portion of what appears to be at issue wrt restore / holt. hopefully tomorrow we will have both bills to compare.

egregious @ 130

I strongly disagree. I believe there should be a zone of privacy around people’s personal lives, children, and homes. That goes whether we’re talking about a family in Baltimore being harassed by wingers or Pelosi being harassed by progressives. It is antihuman and wrong. Surely we are better than that.

Hi Selise, I’m circling back.
my point was if it’s good for the goose, it’s good for the gander. If we approve of protesting in front of another public officials home (ie DitchMitch) then we should be okay with it happening to a dem. or (as it sounds you are)not okay with it happening anywhere. that’s all.

I also draw a distinction between harassing private citizens and calmly protesting outside a public officials home. But again, if it’s a good tactic it’s good for everyone, if it isn’t then back off Mitch too. golden rule and all that.

I do think Pelosi should be more responsive to her constituency and she seems to avoid them as much as Bush….

And that’s for your work on birddogging FISA. ;)

do-si-do – i completely agree with you! it’s egregious who sees things differently.

And those courts making those decisions are our only protection from any administration — not necessarily this one — from any executive having untrammelled power over our liberties and violating our liberties, and pressuring private companies to conspire with them to violate our liberties and our laws.

Congressman Nadler’s remarks (and actions) are very much appreciated, but he makes it sound like Congress is dependent on the courts and has no other remedy for a president run amuck. However, Congress has the constitutional power to impeach these skunks.

As Christy’s ACLU link explains clearly, the House RESTORE FISA bill (which has now passed out of the House Judiciary Committee) pretends to authorize as Constitutional, FISCourt-approved General (Computer Software Program) Warrants for collection of information from a broad category of communications which are collectively certified to have probable cause to be of some sort of foreign intelligence value (related to foreign powers or foreign agents or terrorism in some way) – a category of communications which is known in advance to contain in its midst the communications of innocent Americans in America. A General Warrant for government surveillance of the sort that the Fourth Amendment was specifically written to forbid. That General Warrant provision is known as a “basket” order or warrant from the FISCourt that would authorize the requested ‘fishing expedition’ foreign intelligence surveillance/collection.

Why are these general, “basket” warrants desired by the administration?

Apparently because, according to testimony to the Senate Judiciary Committee on 9/25/07 by James Baker (veteran head of DOJ’s FISA-warrant application office and someone who is ‘read-in’ to the TSP program), both e-mail traffic on the internet, and many cell-phone transmissions are unable to be tied to any geographic location before being collected and analyzed, unlike earlier clearly-foreign wire and air transmissions collected beyond the purview of FISA (which only covers surveillance that has a “substantial likelihood” of acquiring the content of any communication to which a U.S. person is a party). Thus, there is at least a “substantial likelihood” that such e-mail/cell-phone traffic is potentially from and/or to a person in America, which implicates the Fourth Amendment, and therefore FISA (pre-PAA). [This differs from the examples being misleadingly used about traditional phone calls - which can be located geographically in advance of massive surveillance collection - where minimization of any calls to or from or about U.S. persons in America incidental to such foreign-specific communication collection is a standard, longstanding procedure incorporated into Executive Branch policy, as I understand it.]

http://judiciary.senate.gov/hearing.cfm?id=2942

The scale of that e-mail (and cell-phone) traffic that the NSA is trying to monitor and collect is “huge” per testimony by DNI Mike McConnell to the Senate Judiciary Committee. [No doubt it makes up a significant part of the “Terrorist Threat Matrix” that’s developed (per Jack Goldsmith) from “billions” of communications and presented during the daily IC briefing of the president.] This is the same sort of massive data collection as seen in ‘true’ foreign intelligence collection by the NSA (i.e., intelligence collected from known overseas/foreign communications, which has long been done by the NSA without any particular ‘target’ in mind upfront and without any involvement with FISA because it lies outside the parameters of the Fourth Amendment).

But now, in the attempt to capture e-mail and apparently certain cell-phone traffic in the same sort of ‘fishing expedition’ of foreign intelligence collection that has long been done for foreign phone and radio traffic, the communications of Americans are being inextricably and apparently unavoidably intertwined within the NSA databases holding data in the name of foreign intelligence for the purpose of national defense (and in pursuit of terrorist threats in general). In other words, no one knows in advance how many Americans are part of the collection – and their traffic cannot be isolated out in advance of the collection or cannot reliably be known to be largely absent in advance – simply because of the nature of e-mail addresses and the way the internet and some cell-phone networks work (or so the NSA apparently claims).

Thus, in the case of broad-based e-mail and cell-phone traffic surveillance, it is apparently the case – if my theory here is correct – that (at least) this particular FISA standard knowingly cannot be met: “[That there be] no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” And therefore, the NSA can’t go merrily on its way of ‘true’ foreign intelligence collection of non-domestic-generated information without inadvertently tripping over FISA and the Fourth Amendment, which is what has happened. Perhaps better or more creative, or just more, IC software engineers and designers are needed to try to solve this dilemma, in lieu of this effort to effectively repeal the Fourth Amendment in pertinent part via legislation, as the Congressional leadership seems prepared to do, following the BushCheney administration’s lead.

This is apparently why the FISA expert James Baker does not believe that the real issue is a hardware or technology issue, per se. Although data storage capabilities have obviously increased dramatically since 1978 and the ‘digital revolution’ has transformed much of the surveillance field in many ways, I’m sure, Baker points out that all “modern communications” were addressed by FISA in 1978. Baker instead describes the real issue as one of ‘collection vs. the Fourth Amendment.’ This foundational question seems to be at the heart of the current debate, and Congress is – as usual of late – not particularly interested in insisting that the Constitution be adhered to, if it might require a little extra exertion on its part.

So, in the immediate aftermath of 9/11, the NSA and their Cheney-acolyte advocates decided that the unresolved problem of Fourth Amendment & FISA restrictions didn’t matter anymore, and thus the NSA data-collection ‘vacuum’ system of foreign intelligence collection was turned full-bore on e-mail (and cell-phone) traffic full of American communications under the “TSP,” without the involvement of the FISCourt even though U.S. persons in America were known to be involved (unlike regular and legal non-domestic NSA foreign intelligence collection). My theory about this is that what is being programmed as a target category for collection, with regard to e-mail, is certain Internet Service Provider addresses – ISPs known to be foreign-based. Except, of course, that the people who create e-mail addresses through any particular ISP can be located anywhere in the world, including in America despite the foreign basing of the ISP itself. I don’t have any understanding of how cell-phone traffic is being collected – but James Baker in his testimony indicated that some of that traffic is also not country-specific and therefore Americans are scooped in the process, because they cannot be isolated out in advance.

It is a “dynamic, fast-paced, rapidly-changing” surveillance collection program that turns FISA’s “individualized probable cause” warrant process on its head, because FISA was never contemplated to be a tool in such massive ongoing ‘monitoring’ of foreign threats as opposed to what it is – a Fourth Amendment-compliant tool for targeted domestic foreign intelligence collection and its related law enforcement surveillance of domestically-based foreign agents of foreign powers and ‘lone-wolf’ terrorists. DNI McConnell says there is no way to fit this e-mail surveillance collection program into a process where the FISCourt would (repeatedly) pre-approve the software program’s collection parameters (which is what the RESTORE Act appears to be trying to do with its ‘basket’ warrant pre-approval), and that therefore such pre-approval instead needs to be left in the hands of the DNI and the AG (preferably just the AG, per McConnell, post-Gonzales), for maximum, immediate response to events as they develop.

Pre-internet and pre-cell-phone, at least the general geographical location of any targeted person or facility or available category of communications was known pre-collection – or at least was well-enough pin-pointed to confidently be able to rule out the likely presence of the communications of any U.S. person. Post-widespread-internet and cell-phone use, complications have (apparently) developed with that system, at least where e-mail and cell-phone traffic is concerned. This is the underlying reason for the urgent ‘modernization’ argument made for the PAAct’s hollowing-out of FISA. This is therefore the core concern of McConnell in the pending legislation – and he doesn’t want to give up (or find a way to revise) his sweeping programmed e-mail data collection in order to start complying with the Fourth Amendment’s particularized, individualized probable cause warrant applications again. [A desire to tap into the content of the emails of individual subscribers stored by ISPs may also be an issue for the NSA or FBI, though it’s not clear whether that practice is ‘electronic surveillance’ in the real-time sense that FISA contemplates; but that privacy issue should be fully confronted and addressed by Congress as well.]

DNI McConnell testified that 50% of the NSA’s foreign intelligence knowledge comes through FISCourt warrants – and further that this 50% knowledge base was two-thirds degraded this year, pre-PAA, following unknown developments this spring involving the FISCourt, effective at the end of May. [I wonder if this means that English-language communications are far more likely to be quickly processed by NSA than non-English-language communications?]

Encouragingly, James Dempsey, who also testified to the Senate Judiciary Committee 9/25/07, pointed out that McConnell said that the NSA does have a way to identify U.S. persons at the “analysis and dissemination” stage of their surveillance, if not in advance of the collection stage. Which sounds like it may be a workable way of forcing the NSA back to individualized, particularized warrant applications when Americans get scooped up in the program of e-mail/cell-phone monitoring directed at foreigners but intermingled with Americans – without necessarily stopping the collection of e-mail and cell-phone traffic that includes domestic-to-domestic communications. That’s provided that strict, court-approved minimization procedures were simultaneously implemented to delete all “incidental” U.S. person information thus collected, whenever and wherever found or identified (unless a separate particularized warrant for targeted surveillance analysis is instead obtained). This may (or may not) be the approach that the Rush Holt bill is proposing.

James Dempsey warns, however, about over-reliance on minimization:

It is apparent that the concept of minimization as applied by the NSA in recent years has permitted the retention and dissemination of considerable quantities of information about US persons. Newsweek reported in May 2006 that between January 2004 and May 2006, NSA had supplied the names of some 10,000 American citizens to various interested officials in other agencies. It has also been reported that, after 9/11, the head of the NSA changed internal interpretations of the redaction procedures to allow routine dissemination of identifying information about US persons, presumably on the ground that information identifying U.S. persons was necessary for the FBI and other agencies to follow-up on the intelligence. According to one report, under the NSA’s new practice, the FBI was flooded with information identifying U.S. persons.

The terrorist watch list is a perfect example of how the wider dissemination of information can affect ordinary Americans. The watch list now contains over 700,000 entries, created on the basis of reports from a range of intelligence agencies. The list is growing at the rate of 20,000 entries a month. A recent study by the Department of Justice Inspector General found that, even after vetting by the Terrorist Screening Center, 38% of the records on the list contained errors or inconsistencies. In 20% of the cases that have been resolved where members of the public complained that they were inappropriately lists, the complaint was resolved by entirely removing the name from the watchlist. The list, however, is secret.

[snip]

Minimization is no longer being applied – and probably should not be applied – to block dissemination of information about US persons. There need to be other protections. – James Dempsey

http://judiciary.senate.gov/te…..it_id=6670

Clearly, proactive efforts to pre-identify the locations of those being swept up in the e-mail surveillance collection have not been exhausted, as 9/25 witness Suzanne Spaulding emphasized:

The government should have a proactive obligation to take whatever steps are feasible, on an ongoing basis rather than just at the outset of surveillance or other intelligence collection, to determine whether the target is in fact overseas and whether the other party to a communication is inside the United States. The phone company always seems to be able to determine whether I am using my cell phone at home or overseas–I know this because they charge me a lot more when I use it overseas! There ought to be a way for the government to know, even if it is after the fact, where the parties to many of these communications are located. This begins to provide the basis for a legal regime that is much more narrowly focused, with precise procedures and safeguards to govern surveillance that involves persons inside the United States. – Suzanne Spaulding

Http://judiciary.senate.gov/te…..it_id=6671

And this comment from James Baker is important re the ‘foreign to foreign passing through the U.S.’ explanation which is, I think, a bit beside the point (DNI Mike McConnell pointed out himself that no one knows in advance who a particular target will call or receive calls from – so there is no ‘foreign-to-foreign’ category per se – although clearly some broad swaths of non-FISA surveillance are basically of that nature):

Second, let me focus for just a moment on what we can collect under FISA. To begin with, no means of collection are barred by the 1978 statute. We could obtain authorization to collect all forms of modern communication under the original FISA. Let’s also clarify another point – FISA has never applied to wire or radio communications that are clearly from one person in a foreign country to another person in a foreign country. As I discuss a bit later, the problem we face today is that it is not always easy or possible to tell where all of the parties to a communication are located when the interception takes place. FISA also covers physical searches in the United States, including searches of residences and stored data, and other collection as well. – James Baker

Finally, lhp will be happy to see that at least one FISA expert has read the new book she highlighted here for us, and has even testified about it in front of the Senate Judiciary Committee:

As others have discussed, such as David Kris, co-author of the recently published National Security Investigations and Prosecutions, one of the key questions with respect to foreign intelligence collection that faces us today is when, and under what circumstances and conditions, should the government be allowed to conduct electronic surveillance (and search) for long periods of time without individualized findings of probable cause made in advance by judges. – James Baker, on leave since January from DOJ’s Office of Intelligence Policy and Review

http://judiciary.senate.gov/te…..it_id=6669

do-si-do @ 129

If it’s okay to protest outside Mitch’s house to end war, then it’s okay to do same outside Pelosi’s.

And I too take exception to her haughty attitude. Get real.

I strongly disagree. I believe there should be a zone of privacy around people’s personal lives, children, and homes. That goes whether we’re talking about a family in Baltimore being harassed by wingers or Pelosi being harassed by progressives. It is antihuman and wrong. Surely we are better than that.

Hi Selise, I’m circling back.
my point was if it’s good for the goose, it’s good for the gander. If we approve of protesting in front of another public officials home (ie DitchMitch) then we should be okay with it happening to a dem. or (as it sounds you are)not okay with it happening anywhere. that’s all.

I also draw a distinction between harassing private citizens and calmly protesting outside a public officials home. But again, if it’s a good tactic it’s good for everyone, if it isn’t then back off Mitch too. golden rule and all that.

I do think Pelosi should be more responsive to her constituency and she seems to avoid them as much as Bush….

And that’s for your work on birddogging FISA. ;)

If it’s okay to protest outside Mitch’s house to end war, then it’s okay to do same outside Pelosi’s.

And I too take exception to her haughty attitude. Get real.

I strongly disagree. I believe there should be a zone of privacy around people’s personal lives, children, and homes. That goes whether we’re talking about a family in Baltimore being harassed by wingers or Pelosi being harassed by progressives. It is antihuman and wrong. Surely we are better than that.

And I too take exception to her haughty attitude. Get real.