For the zillionth time: The executive Branch does not need MORE POWER to save us in a “Jack Bauer” scenario. They are full of SHIT !(that’s a technical term we lawyers sometimes use)

under both FISA and Title III [specifically 18 USC 2518] (domestic wiretaps) the AG can ALWAYS authorize emergency wiretaps w/o a warrant for the Jack Bauer sceneario. He always could–for years and years and years. The sole requirement is that the Emergency he is certifying must:
1) specifically involve danger of immediate danger of death or serious bodily injury
2) conpiracy activites threatening the national security interest, or
3) conspiracy activites involving organized crime that must be addressed before a warrant can be obtained.

This is under the regular criminal rules!!!! All the AG has to do under either FISA or the Rules of Criminal Procedure is ceritfy and tap, then apply for warrant w/in 48 hours.

The AG has always had all the power he needed for the Jack Bauer scenario. Some lergal scholars believe that the authority for this rests on the 4th Ammendment exception for exigent circumstances, though the legistaive history is not explicit on this point. The exigent circumstances exception allows warratnless searches to prevent destruciton of evidence (like flushing the dope down the john) or to prevent harm to a person (so if I hear the hostage screaming inside, I don’t have to wait for a warrant before I break down the door to save her)

Hugh @ 104

Christy Hardin Smith @ 93

Hugh and all — One thing on the extended period before obtaining a warrant question: (1) Am still chasing details down on specifics with this but (2) if the warrant is not obtained, then they would not be able to use any information retrieved through surveillance in court proceedings, because it would be fruit of a poisonous tree. But again, I’m still trying to get specifics on all of this — it’s really fluid on both sides of the house.

Such information might not be admissible in court but I am not sure that is the purpose of most intelligence gathering. The question I have is what would be done with such information. It is a maxim that information once obtained is virtually never destroyed.

And what sanctions would be placed on those who gathered such information erroneously or maliciously? What enforcement mechanisms are there to guard against abuse? I don’t see any.

LHP @ 109:

I don’t know what the impact of the inevitable behind very closed doors Conference Committee surgery on what comes from the Senate the version the House passed today (227 to 189)of the so-called “Restore” bill and the subsequent Veto battle of Bush and Congress will be on 18USC 2518.

I do know however, I would not trust this “Curve-Ball” torture to help start a fiasco in Iraq dependent and fear mongering government as far as I could spit them to correctly ever designate a situation as accurately fulfilling the requirements of 18USC 2518.

They have displayed time and time again that they will lie about exigent circumstances that threaten National Security. They now have over 100,000 people on a no-fly list and there hasn’t been a peep and I haven’t seen any discussion here who have little recourse and certainly no recourse after Joe Blow has been told he can’t fly to see Aunt Martha or Mom. Not everyone on that list has the clout that Senator Ted Kennedy does when he’s momentarily detained at an airport.

Right now, the provisions of the Senate Bills that Harry Reid can choose to put on the floor all contain extremely vague wire tapping provisions driven by the AG’s ability to interpret their necessity and legality (consistent with his religious subscription to the Unitary Executive theory) and the ability to wiretap for 45 days without a warrant (absurd).

Too much in this bill is a vague, subjective “enigma enshrouded in a mystery”.

As Hugh @ 109, points out, we have no idea what’s being done or what will be done, with all the information that’s being gathered and matrixed onto data bases among various agencies. Once that data is gathered, it’s never going away.

Look at the horrific abuse by the F.B.I. of so-called “National Security Letters” that Mueller dismissed with a non-chalant sentence or two in hearings

From:

The Inspector General’s Independent Report on the F.B.I.’s Use of National Security Letters (Conyers Statement)

The number of NSL requests had increased from 8,500 in 2000 to in excess of 143,000 from the 3-year period between 2003-2005.

DOJ consistently provided inaccurate information to Congress concerning NSL’s, failing to identify at least 4,600 NSL requests to us.

NSL’s were routinely issued without proper authorization and outside of statutory and regulatory requirements. The Inspector General found that 60% of the investigatory files they looked at included one or more violations of FBI policy.
The IG found even more widespread abuses concerning so-called “exigent letters” – emergency requests for telephone and other data. An exigent letter, as opposed to an NSL, is meant to obtain information in an extreme emergency like a kidnaping when the Bureau has already sought subpoenas for the requested information. But the FBI issued these letters in non-emergencies, as a means to bypass the requirements of the NSL procedure.

“As if this wasn’t troubling enough, in many instances the Bureau attempted to issue after-the-fact NSL’s to cover their tracks on their use of exigent letters. The IG specifically found that…the abuse and misuse of the NSLs is not an isolated instance. Instead, it appears to be part of a pattern by which the Department of Justice has violated not only our trust, but the very laws they are charged with enforcing.”:

Exigent letters were ordinarily issued when there was no emergency present, and very often when there was not even a pending investigation. More often than not, the letters were issued based on promises that subpoenas were in the process of being issued, when that was not the case and even though subpoenas were never issued.

The FBI made numerous factual misstatements in the letters, which were frequently issued in violation of statute as well as Attorney General and FBI guidelines.

The record-keeping was so poor that it was impossible for the IG to document how and why all of these problems occurred.

I think the kind of abuse we saw with these letters and analagous fishing for thousands of bank records (and the target victim couldn’t even make pubic that they were being deliberately and illegally abused by this horrific practice) is prima facie evidence you can’t trust the government of the U.S. to accurately certify what is an emergency.

Just a question: If we can intercept calls that originate and end outside the US, can our calls be intercepted by another government? If so, what would stop the US from getting that government to listen to our calls for them?

Mack truck…meet huge freakin’ loophole.

And, it’s been that way for years.

It’s like the ban on governmental creation of databases of civilian data. It doesn’t stop them from receiving databases created by private companies.

Loopholes galore.

cinnamonape @ 76

I think that a Domestic Data Mining project would be, on it’s face, illegal. …

Again this is all about dancing around the definitions.

…

The key is how a target is defined and who the real target is. …

I occurs to me that a workaround the Bushies might try is to say they’re targeting a terrorist group, but neglecting to say it’s composed of individual American citizens.

In emergencies, the Government may conduct surveillance for up to 45 days without advanced court approval.

What’s up with this? 45 days? Is this to take into account the need to harness the horse and buggy before driving it over to the FISA court? I can conceive of no circumstances where it would take the government 45 days to seek approval under FISA, not even if the government were reeling from another 9/11 style attack. This seems a monstrously large loophole.

I have to wonder, what if the government spies on someone or some group for 30 days and then stops. Do they still have to get a FISA warrant later?

What if they go to the court after they’ve spied and the court refuses the warrant? What’s the penalty?

The whole idea of getting a warrant afterward is strange.

Can extremism in the defense of national security become a vice?

Looks like retroactive immunity for telecoms will be in the bill that hits the Senate floor.

Doesn’t the gating question remain whether Mukasey’s veto promise still holds? I.e. if so, then there’s still a later opportunity to debate and revise.

UPDATE VI: Senate Democrats come through for George Bush yet again, as Sen. Feingold’s amendment — to remove telecom amnesty from the FISA bill — fails by a vote of 11-8. Democrats Dianne Feinstein, Sheldon Whitehouse and Herb Kohl joined all of the Republicans (except one, I believe) to vote against Feingold’s amendment (i.e., to vote in favor of telecom amnesty). That almost certainly means that the bill will be sent to the Senate floor with telecom amnesty in it and will be filibusterd by Sen. Dodd), although the will also have numerous provisions in it relating to surveillance which the White House has vowed will result in a veto.

Just thought you guys would want to know. Looks like retroactive immunity for telecoms will be in the bill that hits the Senate floor.

(e) TARGETING PROCEDURES.-

(1) REQUIREMENT TO ADOPT.-The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States.

(2) JUDICIAL REVIEW.-The procedures referred to in paragraph (1) shall be subject to judicial review pursuant to subsection (i).

If Feingold’s amendment does amend that language in subsection (e) of Section 703, it would now read:

(e) TARGETING PROCEDURES.-

(1) REQUIREMENT TO ADOPT.-The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to ensure that any acquisition authorized under subsection (a) is limited to communications to which at least one party is a specific individual target who is reasonably believed to be located outside of the United States, and a significant purpose of the acquisition of the communications of any target is to obtain foreign intelligence information.

(2) JUDICIAL REVIEW.-The procedures referred to in paragraph (1) shall be subject to judicial review pursuant to subsection (i).

http://intelligence.senate.gov/071025/s2248.pdf

Here’s what Senator Leahy had planned today re this bill, from his opening statement:

Senator Specter and I wrote a joint letter seeking referral of this matter in accordance with Senate procedures, but our Committee’s jurisdiction is limited in time. It is set to expire this week. I tried to make that point last week, and to proceed through the amendments to Title I so that we could turn to the retroactive immunity issue in Title II this week, and provide the Senate with our best collective judgment on how best to proceed.

I was pleased with the airing of views last week, but we were unable to make real progress when Republican objections required the entire bill to be held over and considered this morning. We have a lot of amendments that have been circulated and clearly have our work cut out for us if we are to complete the Committee’s consideration of this bill.

After my brief opening remarks and any brief opening remarks by the Ranking Member, I intend to place before the Committee the amendment to Title I of the bill, which we circulated last week, have revised and re-circulated again yesterday after consulting with a number of offices. I am offering the amendment on behalf of myself, Senator Feinstein, Senator Schumer, and Senator Whitehouse.

[snip]

At some point I would like to turn to Title II and the important issue of retroactive immunity. Senator Feingold has an amendment to strike the provisions, which I will support. Senator Specter has an amendment, and I intend to recognize him to offer it. The Specter amendment builds on the concept of substitution as an alternative to retroactive immunity. The hope is that it will incorporate a limit on the use of preemptive legal doctrines, like the state secret doctrine or sovereign immunity, so that substitution would provide a way to test the merits of the claims with the government standing in the shoes of the telecommunications carriers.

As I have said before, I have grave concerns with retroactive immunity for telecommunications carriers for their warrantless surveillance activities from 2001 through early this year, contrary to FISA and the privacy rights of Americans. A retroactive grant of immunity would do more than let the carriers off the hook. Immunity is designed to shield this Administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to be made whole. – Senator Leahy, 11/15/07

http://judiciary.senate.gov/me…..it_id=2629

MN USA — the technology that a lot of these calls are routed through is in the US. We have most of the switching points for a lot of the call routing, which theoreticallyis where a lot of the interceptions are occurring.

But nothing prevents foreign governments from doing the same thing wih technology in their countries as well, other than laws and the enforcement and oversight thereof…

Note too that the “at least one end of the communication originating outside the US” criterion may be vulnerable to technical chicanery and legal parsing. What if the internet backbone taps (like AT&T tech Mark Klein found in SF) are patched to lines that run out of the US, touch base in another country, then run back into the US for analysis? In such a case there might be a plausible parsing that one end of the ‘communication’ originated outside the US… even though the sender and recipient could both be US persons located inside the US.

Hmmm.

Filip served as clerk in the early 1990’s to Supreme Court Justice Scalia. In 2000 he acted as a poll monitor in Broward County, Florida for the Bush campaign during the controversial hand recounts.

HOLY MOLEY !!