LL needs to explain how he “knows the paperwork demands of FISA”.

I know the paperwork demands of FISA

They are such that Judge Lambert was able to grant several FISA orders from his car on 9/11. That’s without regard to emergency 72 hour suveillance with no warrant/orders.

IOW – they are already tailored to exigencies.

and the timing elements became too great for the overstretched staff of the National Security professionals,

… who were already not translating and analyzing known terrorist intercepts, like the bin laden intercepts that did not get translated until post-9/11 and so, of course, needed to have lots more data implosion.

all of whom were deeply committed analysts who KNEW where the bodies were buried

which is why after 6 years of unfettered surveillance on any and everyone using billions of dollar companies as well as US assets and having US citizens PAY ATT for the privilege of having the government surveill them (how much better does it get than that – the goverment spies on you and you pay for the service directly as well as pay indirectly through your taxes) they have found bin laden and why they had all the WMD ducks in a row and …

Bull. Those national security professionals have known exactly what has been being done with diverting efforts from al-Qaeda to Iraq and with massive round ups (holding 25,000 in Iraq and Afghanistan right now) and and bounty hunting for torture specimens for GITMO, blacksites, and Syrian and Egyptian and Moroccan and other outsourced torture. If they knew where the bodies were buried and didn’t put a stop to any of that, they are worse than hideously depraved.

The truth is, there’s a lot they don’t know, the are already overwhelmed with irrelevant information to the point where they use an agent with Hezbollah family ties who is illegally accessing classified info to do their al-Qaeda debriefings, the FBI counterterrorism people years after 9/11 still could not answer questions of basic affiliations between the different fundamentalist islamic groups, there are “lists” of “terrorist” groups floating around between agencies and between the military and those agencies that have little similarity or congruence and it goes on and on.

So did those people who knew where the bodies were buried just get their rocks off by standing by and biting their tongues while Maher Arar was shipped off for Syrian torture, or el-Masri for blacksite US torture based on his name?

The elected leaders who? You make it sound like there were many, but the only elected person in the Executive branch and in that band of security analysts calling the shots is the President – the VP is even just a tack on. informed the Intelligence Committee leadership so one guy (and not even that guy – never did Bush think it important enough that he showed up or participated in those briefings by all reports) telling 6 or 8 other people the bits and pieces of what he wants them to know, with the admonition they can’t do anything with that knowledege and they now all say lots wa left out – that constitutes informing and informing thereby makes it all ok?
Whew – interesting approach.

who basically understood the problems and gave tacit overhead

Big Fib. They are STILL CONFUSED about what they were told, what they havent’ been told, and what the problems are and I don’t know what a tacit overhead is, but if you mean tacit approval then no they did not. They were told they could not speak to give objections- that’s pretty different from approving.

And from the very very very beginning, the FISC Chief Judges have told DOJ that the program was illegal and so illegal that the court put up firewalls to keep the information out of that court (firewalls that DOJ breached). But apparently no one passed that info on to the corporations (in which case those “dedicated national security professionals are liars and weasels) or the corporations knew it and were getting such a lovely taste of what happens with breaking the law when you own the prosecutor and when the prosecutor’s boss is giving you big paybacks to break the law – that they didn’t care.

The corporations followed on request of the government. Maybe they did break the Letter of the law. But there are times, like the post 9/11 era in which exigent circumstances say “give a pass”.

You do give exigent circumstances a pass if they meet the justification defenses in the law – so that is a part of the law as well.

Numerous lies to courts later, numerous legislative initiatives later, numerous lies to American people later and SIX DAMN YEARS LATER does not meet any standard of exigency except in a cartoon Bizarro world.

I wish you would see that side. Can’t speak for Christy, but I have seen that side and have seen how what happened is that after the exigency gave license for a brief period response, integrity collapsed in the intelligence commnunity and as integrity collapsed, they became more and more entrenched in illegal activities, and that set up the hamster wheel rolling and very soon they all knew that exigencies were long past and they were just criminals and they all began to act like criminals. No one came forward, took responsibility or demanded a truthful approach. No one tells the truth now.

People are tortured and die and are maimed and have their minds destroyed and children are orphaned and kidnapped and abused every day, and while that would happen any day in any world, there is now a subgroup of the above who suffer all that specifically and directly because of the depravity of the so-called dedicated national security professionals – none of whom raise a voice.

The more you watch them abandon anything related to actually defending the country and being prudent – in favor of defending their crimes and the crimes of their friends – the less sympathy I find for their original dilema. And the more I wonder what this country has become to spawn and protect such people.

http://www.nybooks.com/articles/20810

My apologies. You’re the same person. Same arguments, same slogans, same hysteria in lieu of logic.

You still haven’t found an actual avowal, and your notion that the Quatari government is somehow with the “Islamofascists” beggars the mind. They’re a vassal state, for Christ’s sake!

Thanks, though, for the “Hundred Year” ballpark. It’s a mark of your historical illiteracy that you would use it without irony; I’ve heard other warmongers more modestly, but with similar historical illiteracy, say “Thirty Years”. You seem a lot like those jihadis, by the way, with your long timeframes.

I just don’t get why you’re so emotionally invested in all this. I have a hard time believing you’re really scared of these jihadis, and I can’t even really believe you believe that Saddam slept with Atta in Prague, or whatever phantasmagoric lies it is you people circulate among yourselves. For some reason you support a war of aggression and atrocity that’s bankrupted the nation and aligned the world against us and are falling all over yourself to cede your and my rights under the Constitution and suspend article I and amendments four and eight of said document. Why? I can’t believe it’s really pants-wetting fear of “Islamofascists”. Is it fear FOR the fate of the Republican party that got us into all this?

*********
[I am going to toss this in here and now for when EW gets to other parts of her FISA destruction series.]

Re: the AG oversight/decisionmaking v. FISC oversight/decision making provisions. Keep in mind that the law has been very clear that judges cannot issue general warrants. Nomenclature not being the deciding factor, that would include FISC “orders” authorizing general, blanket searches & seizure. That makes it hard to have the court responsible for issuing something that may not be able to issue, Constitutionally. This is especially true where, per below, FISA “warrants” or order rest on very thing underpinnings to the extent they affect Americans as it is and those underpinnings have already been assaulted by the Patriot Act(s) provisions to where they have been left with the consistency of wet tissue paper.

What has the Sup Ct said about foreing surveillance?
Not much. The one thing the Sup Ct has said specifically about foreign surveillance is that the Executive does have powers to engage in surveillance without a warrant of foreign powers or agents of foreign powers for national security purposes. Good, old fashioned, nation v. nation spying. That was done as dicta in a case where the court also said it was not going to get into what is or is not domestic v. foreign surveillance.

But this is why you see certain things in “old FISA.” First, a carve out for warrantless surveillance only when you have foreign powers or agents of foreign powers – - – not for all foreigners. It is a national security carve out that had in mind things like spying, invasive and sabotage actions of foreign powers. Not so much listening in on a Chinese businessman’s calls to his mistress so that a Madame President could use the info to blackmail bigger campaign contributions.

So you already get into a grey area when you have foreign communications that are not communications involving foreign powers or their agents. The Sup Ct has not really spoken to the right of the Government to be unfettered from the Constitutional constraints of the Fourth Amendment when it is seizing and searching ALL KINDS of foreign communications, especially on US soil, without regard to whether or not they involve foreign powers or national security issues.

That will happen with dragnetting and datamining EVEN IF the technology made it possible to confine such dragnets to only foreign originating communications – - – and EVEN IN in that case (where they can limit to foreign orignating calls and emails etc.), there is nothing to prevent that dragnet from also picking up communications of US citizens who are overseas and who are not in communications with foreign powers on matters involving national security.

Certainly, those kinds of actions are a far different scenario than the legitimate Executive powers recognized in Sup Ct dicta carve outs with respect to warrantless surveillance of foreign powers for national security purposes.

Moving on, with the changes to the intra-Executive Branch approach to handling operational aspects of the wall, you also had legislation that changed a lot more than the operational aspects. Part of the court’s reasoning for the warrantless capacity for the Executive to spy on agents of foreign powers dealt with the presumed diplomatic, rather than legal, avenues of reprucussion the Executive branch would take in those settings (expulsion being one of the primary actions, but war also being an aspect)

But with the understanding that such surveillance might at times involve US citizens, Congress crafted an approach – FISA – that has never been tested in its OLD format (much less its newly proposed format) with respect to the concept of issuing orders or warrants to allow such foreign powers surveillance to impact US citizens on US soil, as long as appropriate minimization procedures are in effect. Once more – that is a completely untested concept in and of itself.

Part of the reasoning for allowing the “with warrant” (i.e., with court order) surveillance that might include or capture US communications, but which is based upon a much lesser and different probable cause standard than a criminal surveillance warrant, was that criminal penalties would not be applying, the judicial system would not be invoked, and minimization procedures would require destruction of US communications except in narrowly circumscribed parameters.

Even with minimization, the concept of judges issuing warrants that allow the interception of US citizens’ communications based, not on probable cause that they are committing a crime, but rather only on probable cause that they will be talking to someone who is an agent of a foreign power, is not only something the S.Ct hasn’t addressed, but something that should cause its own sets of concerns, standing alone.

But then came the Patriots of the Bush DOJ and their axts. Now, of course, you have not only the intra-dept. operational aspects of the wall being changed, but you also had a tremendous sea change on how FISA orders/warrants would be used.

Now, FISA orders could be sought and used with a specific intent of using them to fish for evidence of criminal violations, even in circumstances where no criminal warrant could be issued bc there was not even the beginnings of a showing of probable cause of a crime was being planned or committed. All as long as there was a colorable showing of probable cause that the person being surveilled would be in contact with an agent of a foreign power.

Meanwhile, the definition of agent of a foreign power has been changed to include this large and nebulous grouping of “terrorists” (and because of other things, possibly those who provide material aid to terrorists, with no clear delineations or who or what is included in such groups or descriptions).

So the FISC is already being forced into a very uncomfortable place by the Patriot Act legislation. No longer is it “just diplomatic” reprucussions and spying on foreign powers by the Executive Branch. And even some of the thought process behind the carve outs because actions would proceed on non-judicial front, there has been a big change. No longer are we looking at things like expulsions from the nation, but instead we have become a nation of Executive Branch conspired and coordinated disappearances of disappearing suspected or alleged enemies into blackhole torture or just permanently.

None of those were points touched on the in the dicta that set the scene for saying the President has warrantless surveillance powers with respect to agents of foreign powers for national security purposes.

And now that the judicial warrant is being issued specifically for use to fish for criminal evidence where no criminal warrant could have issued – we are so far beyond what was originally discussed that it takes a quantum of quantum leaps to get there.

Still, the old FISA was structured to take into account that dicta regarding the President’s Constitutional powers to spy on French spies. It provides that when the AG is engaging in surveillance limited to only agents of foreign powers, not only does he not need a warrant, the FISC is basically prevented from issuing a warrant.

Since the Sup Ct seemingly agreed this kind of nationalistic spying was an area where the President did not need a warrant, and since it was surveillance intended only to be used for non-judicial purposes, there is a separation of powers issue. The FISC is in a hands off mode when the communications are only those between an agent of foreign power to agent of foreign power.

So a couple of additional issues present. First, throwing terrorists in with agents of foreign powers and allowing FISA to be used for criminal surveillance but without getting a criminal warrant, basically doesn’t work well with the original precepts of FISA.

That’s the big and basic point.

It’s the same as saying that “mafia” members (with no definition) are going to be treated as agents of foreign powers or labor organizers or socialists or fundamentalists etc. Terrorism is ideologically based, not geographically based, and it is a criminal state of mind. It is not a matter of foreign powers, but of demented persons.

We need to address terrorism, which is often (but not always) used as a tool of groups with multinational roots, involving paramilitary non-state actors and large scale destructive capacities such that the balancing tests for reasonablity and probable cause may indeed have differing elements or a stairstepping of elements which need to be discussed and hashed through by people who are trying to get it right – not depraved idiots who are trying to cover their own criminal behavior. We need to figure where we already have good and sufficient tools (and that is lots of places – maybe they can even start with background checks of FBI and CIA agents who might have family ties to Hezbollah?) and where we need something else or more that is really targeted to the problems and needs, not a tack on to FISA to cover up old violations.

Still, dealing with what we have and not what we need (after all, with Dems in the majority, the Republican criminal cover up brigade not only runs the show, they’ve recruited to the point where the brigade is bipartisan now), the “fixes” being proposed are generating a situation where it appears that what Congress and the Executive branch are wanting to allow (to the extent any of them even bother to sit and think about any of it rather than just tabulate political points) is dragnetting and/or data mining of all communications and/or of all “foreign” (not agent of foreign power) communications based on no warrants or warrants issued on much less than probable cause of a crime being committed, but for the use of fishing through that data for any Executive Branch whim of any kind, with no oversight – - – and making all that info available to the greedy and corrupt within the intelligence community, also with no oversight.

Whether technology is such that they can actually separate US from foreign in their dragnets and datamining they don’t really want to get into – which may be part of why the minimization references are being kept so tight (if you even can presume any reason based on factors other than intent to cover up Executive Branch and telecom and contractor crime these days – and I have a hard time getting there).

EVEN IF they were able to sever out and destroy all US communications (bet they won’t and aren’t being asked to) and EVEN IF you ignore that now with other Patriot Ac changes, dragnetting all foreign communications has no requirement that it be limited to national security puruposes and can include all kinds of other uses, including criminal uses or Presidential whim or *rogue* Executive branch officers sending info to Hezbollah family members or blackmiling politicians, etc., THEN you still get to the point that an approach that provides for FISC court involvement in this process, (which is what they are saying makes it all “safe”) would require the court to disregard the Constitution and precedent and issue blanket warrants.

So that is one reason for the focus on the AG. How you go from saying that while it’s unconstitutional for the courts to issue blanket warrants for criminal investigations, it’s ok for the AG to unilaterally approve such blanket searches and seizures, including US communications, for purposes that will include criminal prosecution but preferably include kidnap and blacksite torture, generally of non-citizens but in cases like Padilla using the USAttys offices to facilitate disappearing US citizens, all based on some tenuous thread that maybe someone somewhere somehow thought a call might have involved a foreigner or a US citizen calling home from a foreign place – - – it just boggles the mind if you follow it through.

So some of the resistance to court involvement is not only tied to the fact that a court can’t constitutionall do what they want done, but also very likely that FISC won’t do it either – probably a part of the old ruling that peeved the DOJ this spring. (BTW- did anyone ever ask what happened at the end of that dubious 3 day emergency surveillance that Gonzales put in for? Bc I wonder if the court went ballistic and if that had anything to do with him leaving – but that’s another day)

In any event – identifying political enemies of the US or those having “bad thoughts” about the US and taking punitive actions – criminal prosecutions or blackhole torture – against them using FISA as a vehicle doesn’t work bc that is not what FISA was intended to be or to do.

We have a workable criminal system. We have a workable spy system. We need a workable way to integrate them and to coordinate an overall approach to multinational crime groups like terrorists (including drug cartels and the like) which at times receive support and protection from state actors and at times do not, and which have significant paramilitary overlasy. That’s not a “FISA issue” and everyone should just step back, realize that the only things being done to FISA right now are being proposed and done by people interested in protecting Executive Branch persons and poltical allies and contributors from their crimes – - nothing is being proposed, structured and promoted by anyone with a focus to the real problems and concerns that exist and that need to be addressed, and nothing is being done with an understanding of what FISA was intended to address.

“National security” is becoming a blanket for all bodies, and so are a half dozen other waffle words they are wanting to use and none of it works with and within a Constitutional democracy that obeys the rule of law and does not have a big brother Executive.

So we either admit we are not a Constitutional democracy that respects the rule of law anymore (and the last 6 years of poisening the Constitution from within by the DOJ may just have accomplished that goal) and give the appropriate salute to the members of the Bush DOJ, past and present, who made sure the change took place; or we draw the lines, make FISA stay within what FISA was intended to be, and recognize that terrorism is a massive and paramilitary criminal undertaking that needs a well thought through approach, nationally and internationally, that is targeted to those needs and that we already have many of the tools we need and we focus on where the gaps are and how they should be addressed in a fashion that meets the national and international pressures brought to bear by the problem and by the solutions which may often involve multiple countries with mulitple approaches to the law and the problem.

IMO, where we are is a a bad place at the end of a trail laid by bad men patting themselves on the backs for being brave and protecting a country they were helping to poisen from within. And there we seem destined to remain, as the reins of government have been taken by Democrats who are morally and functionally incapable of making a trail of their own.

something pretty ominous happened to me on the way to the coffee shop this morning

I saw what at first looked like some kind of private security automobile as I was driving

to my surprise, as I got close it had in BIG letters across the door

POLICE

I thought, …hmmmm…that’s a bigger sign then I am used to

and then on the front fender, in pretty big script read as so;

“providing homeland security”

that’s right, a vehicle that invoked the terms of the Nazi’s

was this a black water vehicle?

I don’t know but I was as appalled seeing “homeland” on a police car as I would have been seeing a swastika

VERY OMINOUS and it is a dark dreary day on top of it

not in a good mood this morning

Come to think of it, the police uniforms are starting to change around here as well, from blue to black and these new uniforms have a blackwater kinda look to them. I’ve seen them at Wall Street near the Exchanges, but never in the outer boroughs.

LibertyLee @68:

“But there are times, like the post 9/11 era in which exigent circumstances say “give a pass”. I wish you would see that side.”

The post 9/11 “era”? Eras are pretty long, LL. Any chance you’d like to offer a ballpark on how long this twilight stuggle will last? You also ignore evidence that the administration was pulling this shit before 9-11.

And from yesterday: have you gotten around to finding an “avowal” from Al-Jazeera? Or are you a different person from day to day? — Your grammar and vocabulary have improved since yesterday’s sloganeering.

I would not be surprised if The West were not in another Hundred Years’ War against Islamo-Fascism. Not at all. The Islamists see in terms of long timeframes. As to the avowals and biases of the Qatari government and Al-Jazeera, they are made every day and self evident except to those who believe that just because Gerald Ford pardoned one of the Tokyo Roses ladies (primarily because she was an old lady and it was the end of the Ford Administration) that there was no Tokyo Rose committing treason.

LibertyLee @ 66

Christy, I respect your judgment. But I also work in IT and have some knowledge of the legal interfaces. I know the paperwork demands of FISA and the timing elements became too great for the overstretched staff of the National Security professionals, all of whom were deeply committed analysts who KNEW where the bodies were buried. … The corporations followed on request of the government. Maybe they did break the Letter of the law. But there are times, like the post 9/11 era in which exigent circumstances say “give a pass”. I wish you would see that side.

Then why did the NSA start the illegal stuff in Feb 2001.

In addition, if this was such a problem then why didn’t the Bush Administration bring this before Congress LONG BEFORE the whole plan was blocked by the FISA Court blocking a DIFFERENT ASPECT of the program, and only after the Washington Post blew open the NSA-Telcom intercept program???

There was a problem, it violated the letter of the law, and the didn’t bother to come to Congress…some six years ago (or anytime thereafter~ even after FISA revisions were presented before) to ask for changes on the Wholesale Domestic Espionage without a warrant aspect of the program???

Jeesh! Can’t imagine WHY!?

Diane @ 15

Morning Christy, stayed up til 3:00 watching the Waxman grilling of Kronberg – waiting for the coffee to brew. After first cup I will begin calling.

If this does make it out of committee, hope we can count on Dodd to fillibuster as promised.

I want to say thanks to Christy & all the pups for pushing our reps in the right direction. Hard to believe we have to force them to fight for our Constitution.

Agreed – thanks once again to Christy for keeping the pressure on the SJC to do the right thing.
Just used the Dodd connection to call Whitehous. Calling was easy; staffer sounded absolutely uninterested in call, however.

As always, the Dodd campaign will do the dialing for you if you go to http://chrisdodd.com/immunity. It’s a really cool tool that’s let thousands of people call the SJC already – at no cost to them.

And Diane’s right: if the FISA legislation comes out of committee with retroactive immunity in it, Senator Dodd has a hold on it. If that hold is not honored, Dodd will filibuster it.