FISA: Cliffnotes Edition

After digging through pages and pages of the FISA legislation, I've come away with a much better appreciation of the law itself, instead of all the misinformation swirling around it.

The biggest thing that everyone (including Bush & Co.) said this authorized was warrantless wiretapping of anyone. Just skimming through the bill clearly puts lie to that. Even spying on a foreigner in a foreign country must get a certification from the FISA courts. If you are trying to spy on an American, the rules are even stricter. This bill also makes one of Bush's biggest defenses of his previous program moot. Originally, Bush argued that the Patriot Act and related bills gave him implicit authorization to spy freely; this bill instead says explicitly that all wiretapping (overseas) must go through FISA.

This bill also added significant protections for Americans overseas. To my knowledge, the CIA had pretty much free reign to spy on anyone, as long as they were outside of the country. This is no longer the case. It also gave clearance for telecoms interested in their clients' privacy like Qwest to challenge these orders.

Probably the most important addition in this bill is the review process. The main reason Bush was able to get away with what he did for so long was because these organizations' actions were not monitored. Now there are very clear reporting procedures. The American people get to see how this is happening every six months. Openness is the most important defense we can have against an overreaching government. As the saying goes, "Who is watching the watchers?"

They did, however, use this bill to add a couple things I disagree with. First is the fact that they extended the grace period between when the spying starts and when the AG needs to get approval from the original 3 days to a full 7. I don't personally see any reason the AG should not be able to turn in the information required to FISA if he believes there is a serious reason to start wiretapping. If he has enough information to believe there is a serious national security risk then he should have enough information to convince a FISA judge. If he doesn't then he should get that information before starting the spying. However, this is one of those points that I believe is a viable negotiation point to get the rest of the legislation passed.

My next issue, and this may just be something I missed or didn't understand, is that there are no rules on how to treat information gained from the wiretapping should a FISA judge reject an application. For example, the AG starts eavesdropping on Joe American in Germany and three days later turns paperwork over to FISA. Two days later, the DOJ records him talking about something illegal, but the next day FISA rejects the warrant request. Can that information be used in an arraignment or for future warrants against Joe, or does it have to be discarded as tainted like similar evidence in unauthorized investigations? If anyone reading this is a lawyer and understand it better than me, please help fill me in.

Finally there is the issue of the telecom immunity. This is everything it was advertised as. Telecoms can have any law suit against them thrown out if the AG says to the district court what he already testified to Congress. The one interesting thing I did find in this was that the cut off for immunity only goes back to 9-11. According to many sources though, this program started immediately after Bush took office, February of 2001. If that is the case, I would expect that any suits related to those actions should be able to go forward. This is the deal killer on the bill to me though. In effect, it authorizes the Nuremberg Defense, "I was only following orders." According to the Nuremberg Principals: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." As Qwest's resistance, to its financial detriment, demonstrates, these companies did have a moral and legal choice to refuse.

With the cadre of lawyers corporations like AT&T have, there is no question in my mind that they knew there was no legal grounds to follow these orders, but they complied anyway hoping for such a future defense. When a corporation or other entity knows that they can use such a defense, there is nothing to keep them from violating the law the next time someone asks. In fact, it discourages companies like Qwest from resisting next time -- they have a lot to lose if they resist, and nothing to lose if they comply. This is very dangerous moral ground, and the precedent should never have been set.

Long Overdue

I have finally gotten through the FISA reform bill. I am not a lawyer, so any of my readings of this legislation may not be completely accurate. There is also the problem that many of the clauses refer back to the original FISA or other laws, which I don't have a copy of. What follows is my best attempt to translate it to somewhat human readable form.

Non-US citizens outside of the US

General:

• Any surveillance authorized under this section may not target a person in the US -- citizen or not.
• This legislation also cannot be used to indirectly target someone in the US or a US citizen (can't wiretap person b in France because you want to hear what person A in Houston is saying).
• The AG and DNI must put into place policies that would prevent the violation of the above conditions, and have those policies approved by Congress and the FISA court

Certifications (similar to warrants, but with lighter requirements):

• Must be filed for before the surveillance begins.
• The AG and DNI can determine that "intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit" filing for the warrant in advance. Certifications run under this must be submitted to the FISA court within seven days of the surveillance beginning.
• FISA court must review certifications within 30 days
• Certifications must include:
  • A statement that protections described above are in place to prevent improper surveillance.
  • A statement that Fourth Amendment protections are in place
  • A statement that the surveillance is for foreign intelligence purposes using a communication service provider
  • The start date of the surveillance
  • An affidavit from the head of the relevant intelligence agency
  • If the surveillance was started before the FISA court can review the certification, an explanation by the AG/DNI must be included as well.
  • It does NOT need to include a description of how the surveillance will be conducted
• Valid for one year and can be reauthorized.
• The certification will be used to force telecoms to provide full assistance to the government, including implementing procedures to ensure the secrecy of the surveillance.
• Telecoms cannot be sued for following these orders
• Telecoms can challenge these orders through the FISA court and both the government and telecom can appeal any decision on this challenge up to the Court of Review.
• Government can also appeal denied certifications. Any surveillance already in process may continue during the appeal process.
• Accepted certifications must be accompanied by an explanation by the judge for acceptance.

Review procedures:

• Every six months the AG and DNI must submit an assessment of how well the policies are complied with.
• The IG will review compliance with the procedures in place and compile a report on each violation.
• The head of each intelligence agency with access to FISA will report annually to Congress and the court about the IG's findings and describe any new procedures they intend to put in place to reduce future violations.

US Citizens outside the US

General:

• FISA courts can only authorize wiretapping of US citizens outside of the US.
• If a citizen returns to US soil, or is discovered to have been in the country, the wiretapping must stop immediately (it can be resumed if the person is reasonably believed to have left again).
• Review methods are the same as per previous section

Certifications

• Must describe the specific information sought
• The target must be working for a foreign power
  • Evidence backing this up must accompany the request
  • Actions protected by the First Amendment (speech, religion, etc.) are not valid evidence
• A full description of the method to be used to gain the information must be included (i.e. forced entry, wiretapping (including which telecom will be asked to comply)
• Information about any previous surveillance of this target must be included.
• Must specify a time span of the surveillance (not more than 90 days)
• Requesting officer must swear under oath that the information contained is accurate (the officer's name is attached to the order)
• Telecoms cannot be sued for actions taken while following these orders
• AG can authorize an emergency surveillance but:
  • Must inform a FISA judge when he is authorizing it
  • Must file the request no later than seven days after authorizing it
• If a person is already under warranted surveillance locally, the AG can authorized continued surveillance if the person goes overseas

Previous warrantless wiretapping program

• Lawsuits against telecoms or other persons can be thrown out if the AG testifies to the district court that:
  • The surveillance was in connection to an intelligence activity between 9/11/2001 and 1/17/2007
  • It was related to preventing a terrorist attack
  • The order was authorized by the president
  • The order was said to be "determined to be lawful"
• The administration can claim national security interests to prevent information from being released about the program
• No state can launch an independent investigation into the telecoms' actions
• The IG of the DOJ, DNI, NSA, and DOD (and any other agency involved) must give a complete review to Congress of this program including:
  • All the determinations used as a basis for the program
  • All legal reviews of the program
  • All communications with the private sector
  • Any interaction with the FISA courts
  • Anything else the IG determines to be relevant
• The report may include a classified annex, but the main part of the report must be declassified
• The initial report is due 60 days after authorization of the act, a final report is due in one year

Get Out of Jail Free

Well, it's happened. This afternoon around 3 CDT, the Senate voted to approve the FISA amendment bill with no amendments. Bush was last seen doing his happy dance in the Rose Garden with the AT&T exec that has been buggering him for the past 8 years. John McCain was seen far away from DC hoping no one pays attention to whether or not he supported it. And Sen. Obama voted in favor of the final bill...

Obama did, however, vote in favor of every amendment that would have stripped telecom immunity. Unfortunately, there were, on average, 15-17 Democratic senators willing to fight for the telecommunication companies -- among them my own Sen. McCaskill... According to Sen. Obama, the reason he voted in favor of the final bill is, in part, that it sets up Congressional oversight of any eavesdropping program via an inspector general -- something that should have been set in the original bill.

Oddly, contrary to what happened almost 5 months ago or two weeks ago, Sen. Clinton voted against the final bill. Kudos to her for finally taking a stand on this issue.

Final vote tallies:

• Dodd-Feingold-Leahy: 32 - 66
• Specter: 37 - 61
• Bingaman: 42 - 56
• Cloture: 72-26
• The bill itself: 69-28

I will update those vote tallies with the links to the actual votes so you can see where your representative voted on each thing when the Senate posts it.

A fading sheen?

Now that the Democratic nomination has wound down and Obama has emerged as the victor, the main stream media, driven by the hard right (especially the self avowed McCain "surrogate" Faux News) have started attacking Obama's positions. The most common attacks are the blatant lies - the "Obama is a secret Muslim" and "Obama says high gas prices are a good thing." What is more insidious, though, are the attempts to portray Obama's long held positions as "flip-flops."

Julie over at Momocrats has a great series of posts (starting here) addressing a few key issues. As she points out: on the death penalty he has consistently been against killing innocents, but not against capital punishment in general; on gun control - "I think it's important for us to recognize that we've got a tradition of . . . gun ownership . . . We can have reasonable, thoughtful gun control measure that I think respect the Second Amendment."; FISA I will address later in this post.

Other attacks like this include NAFTA - his position has been that we need to renegotiate NAFTA, not drop it completely. His problem with NAFTA has been that there are no environmental protections and no worker protections. This allows manufacturing jobs that paid well and were union jobs here in America to be sent to Mexico and Canada where the workers can be paid less and there are fewer environmental protections. He wants to fix these issues; he does not want to unilaterally drop out.

Then there is Iraq. Obama has, since 2003, been against Iraq. But now you are seeing people attack him saying he doesn't intend to leave and in the same breath attack him for being a "cut and run Democrat." They can't have it both ways. Obama's stance has been "We have to be more careful getting out than we were careless getting in." This means that while he intends to pull most of our troops out in 12-18 months, he is not going to do something stupid that leaves us in a worse position than we already are in.

Just this past weekend we had yet another instance of this. General Wesley Clark said "Well, I don’t think riding in a fighter plane and getting shot down is a qualification to be president." On its surface, it's true. However, McCain did serve in the military, achieving the rank of captain. This is a record of service that, as Obama has said for months, deserves our recognition. He has also consistently, even through the primary campaign, been against personal, ad hominem attacks. Thus, when he rejected General Clark's attack, he was not flip-flopping or throwing Clark under the bus, he was staying consistent with his message of bringing politics out of the gutter.

The last of these I want to focus on is the FISA legislation. In general, I am against these reforms. However, I have not read the legislation myself and I don't know all of the reforms it will be implementing. The one that I am most strongly against is the telecom immunity clause that will ensure no one is held responsible for completely ignoring the Constitution during Bush's warrantless wiretapping program. When this came up for vote a few months ago, Obama voted against cloture and co-sponsored an amendment with Sen. Dodd to strip the immunity clause. It has come back up for vote in the Senate and this time Obama did not vote on the cloture vote (neither did McCain or Clinton). He has, however said he will continue to push to remove the immunity. Without having researched this bill better, I can't make a complete judgment on his general support of the bill. As far as whether he has changed his position, that is harder to say; he still is fighting against the immunity, but it appears he has weakened his position on the bill at large.

Now all of this does not mean he hasn't changed position on things. The most talked about change has been his stance on public financing in his campaign. Back in 2007, he did say that as long as his Republican counterpart chose to accept public financing, so would he. This clearly is not happening. To explain this, he has said that with 1.7 million donors nationwide, his campaign is being financed by the public, but that ignores some of the other catches tied in with federal public financing. Personally, I am mixed on this. As an idealist, I would like for the public financing system to work and allow good campaigns. However, the other side is best summed up in a cartoon BAC posted a week ago:

There is also the issue of Israel. Throughout his career he has remained fairly neutral on this. However, after securing the nomination he spoke before AIPAC and came down very strongly pro-Israel. This really disappointed me. It weakens his ability to be a fair arbiter of any peace deal between Israel and Palestine. As of yet, I have not heard him address the issues raised in this speech.

I think Julie's final assessment is very accurate. Obama's positions are much more nuanced than a 10 second sound bite. This is something that draws me to him because it breaks away from the "with us or against us" mentality of the past eight years. But it is much harder to convey to the wider public and can be has been used against him. What should be the MSM's job, conveying the facts of the issues, has now fallen to us, the bloggers and grass roots activists.

FISA Failure

This afternoon, at 12:48 PM EDT, the House of Representatives signed away our fourth amendment rights. After a year of wrangling, the Bush administration was able to convince 105 Democrats, Nancy Pelosi and Steny Hoyer, to vote for this horribly flawed bill. And because the fourth amendment wasn't enough for them, they have established a precedent of allowing the Bush administration to ignore whatever other laws they please.

The biggest issue in this bill is how the telecoms are being treated. In the previous bill that the House rejected, telecommunication companies that allowed the justice department to set up wiretaps that they knew were not warranted and thus were unconstitutional and illegal were granted unconditional immunity. This time, Kit Bond, who I am ashamed to say is one of my state's Senators, was able to work out a "compromise." Instead of blanket immunity, the FISA court would be able to hear whether or not the companies were given letters in which the administration says that what they want to do is legal. The court is not, however, allowed to judge whether such a statement was legal. Because Alberto Gonzales has already testified to the Senate that such a letter was sent to these companies, the courts will only be allowed to determine whether a well accepted fact is a fact. In other words, the telecos were just voted immunity.

The precedent set is that if the Bush administration breaks a law, and asks others to aid and abet him with it, no one will face any prosecution. All Bush has to do to overturn a 220+ year old amendment is write a letter saying, "Trust me."

On a more positive note, both of the local Congressmen, my own William Lacy Clay and Russ Carnahan, both voted against it. I had the pleasure of meeting both of them at the Missouri Democratic Convention and both are upstanding men that deserve the positions they have earned.

I don't know if this updated bill still needs to go before the Senate (I'm 99% sure it does), but I don't hold high hopes that it will be killed there. This leaves us only one last option - the Supreme Court. Even though Congress is stripping the courts of their rights to hear cases on this issue, because it is a Constitutional issue, the Supreme Court can still choose to hear a case. With justices like Alito who believe that since we are at war with "radical islamists" we don't need to follow the Constitution, I fear even that might not be enough.