April 11, 2008

Accountability on FISA, Colombia

The handling of the U.S.-Colombia Free Trade Agreement seems strikingly similar to the handling of the legislation to update federal surveillance authority over international communications, the FISA amendments. Faced with legislation that would pass on its merits with bipartisan support -- the Senate-approved S. 2248 -- House leadership refused to allow a vote on the bill and instead passed a measure that only confuses the debate and stands no chance of enactment -- H.R. 3773.

Legislation to enact the U.S.-Colombia Free Trade Agreement, H.R. 5724, stood a good chance of passing the House with bipartisan support on its merits. So instead we get H. Res. 1092, changing the rules to avoid that up-and-down vote.

Posted by Carter Wood at 9:53 AM | Click here to comment | Send to a Friend

April 7, 2008

FISA Update: Do Not Let it Walk with the Zombie

Ted Frank of the American Enterprise Institute has just released a new "Liability Outlook" paper, "Zombie Litigation -- Revivers and Retroactive Lawsuits Are Bad Ideas." The article examines the impact of revising existing law, including through vitiation of existing immunity, to encourage litigation. If legislatures can go back and reimpose potential liability with impunity, then the granting of legal protections will fail to achieve its end in the first place, Frank contends.

It's a timely topic, given the efforts in Michigan to eliminate protections for pharmaceutical companies enacted into law in 1996.

Frank also has a passage directly on the need to ensure telecom companies have immunity for assisting the government in post-9/11 surveillance of foreign communications.

Telecommunications companies relied upon the assurances of the president and the attorney general that the intelligence-gathering operation was legal. Perhaps those assurances will be determined in the future to be legally incorrect, but a government employee acting under such assurances would have qualified immunity from suit because of the lack of violation of a clearly established constitutional right.[49] Private industry, without the ability to second-guess the attorney general, should be equally protected. According to former attorneys general Benjamin Civiletti and Dick Thornburgh and former FBI and CIA director William Webster:

For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government's call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government's actions are legal. Given the threats we face in today's world, this would be a perilous policy.[50]

The legislation is thus distinguishable from other retroactive legislation because it is protecting rather than upsetting settled expectations and reliance interests. If anything, it is the plaintiffs seeking billions of dollars who are violating norms against retroactive liability. This is especially true in this particular instance--because the telecommunications companies were acting in good faith, they would almost certainly win the lawsuits after extensive and expensive litigation under existing law. The retroactive immunity would therefore not shift the underlying rights of any parties but merely shut down a litigation discovery process that would give enemies of America a "road map as to how to avoid the surveillance."[51]

Now compare that argumentation to that of immunity's most vocal opponents, including the Daily Kos blogger, mcjoan, who in this post calls Senate Intelligence Chairman Jay Rockefeller "Jello Jay" and accuses him of "carrying the water" for the Administration.

P.S. We've put the relevant footnotes from Frank's article in the extended entry below.

49. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
50. Benjamin Civiletti, Dick Thornburgh and William Webster, Surveillance Sanity, OpinionJournal.com, Oct. 31, 2007; accord John Ashcroft, Uncle Sam on the Line, N.Y. TIMES, Nov. 5, 2007.
51. Dan Eggen and Ellen Nakashima, Bush Moves to Shield Telecommunications Firms, WASHINGTON POST A7, Mar. 2, 2008 (quoting President Bush).

Posted by Carter Wood at 6:58 AM | 2 comments; click here to read them or submit your own! | Send to a Friend

March 31, 2008

FISA Update: Getting Less Safe As Time Goes By

From the President's remarks before his departure for Europe:

Congress needs to pass FISA reform. Our intelligence professionals are waiting on the Congress to give them the tools they need to monitor terrorist communications. Congress also needs to provide liability protection to companies that may have helped save lives after September the 11th, 2001.

Also, Washington Times editorial, "Blue Dog betrayal." And the reliably liberal editorialists at The Los Angeles Times propose a grand compromise on immunity in "Congress' first task: FISA":

Civil lawsuits are not the only or the best way to ventilate information about the program, about which Congress already knows much more than it did a few years ago. A better option is proposed in the new House bill: a congressional commission to investigate the genesis of the secret NSA program. A House-Senate compromise that included both immunity and a commission would be hard for Bush to veto. More important, it would put what began as a lawless program on a sound legal footing.

We'd take the Times more seriously if it wasn't so dismissive about the importance of telecom immunity, which it describes as a side issue. We suggest that encouraging the involvement of the private sector and America's citizens in opposing murderous terrorists is rather central.

Posted by Carter Wood at 10:54 AM | Click here to comment | Send to a Friend

March 29, 2008

FISA Update: Mukasey and 'One Missed Call'

An editorial in today's Wall Street Journal, "One Missed Call."

In Michael Mukasey, President Bush finally seems to have an Attorney General worthy of the current moment. In Nancy Pelosi's hometown this week, the former judge who once tried terror cases told the Commonwealth Club audience that even he had no idea of the extent of the threat.

Speaking of what he hears in his national security briefings, Mr. Mukasey said, "It is way beyond – way beyond anything that I knew or believed. So, if I was picked for the level of my knowledge . . . that was a massive piece of false advertising."

As reported by the New York Sun, he also offered a perspective, partly personal as a former Manhattanite, on the necessity of warrantless antiterror surveillance. Before 9/11, Mr. Mukasey said, "We knew that there had been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn't know precisely where it went. We've got" – here the Attorney General paused with emotion – "we've got 3,000 people who went to work that day, and didn't come home, to show for that."

The AG also addressed why immunity from lawsuits is vital for the telecom companies that cooperated with the surveillance after 9/11. "Forget the liability" the phone companies face, Mr. Mukasey said. "We face the prospect of disclosure in open court of what they did, which is to say the means and the methods by which we collect foreign intelligence against foreign targets." Al Qaeda would love that. The cynics will call this "fear-mongering," but most Americans will want to make sure we don't miss the next terror call.

New York Sun editorial, "Mukasey's Emotion."

Andy McCarthy comments in National Review's The Corner blog.

Mukasey's prepared remarks for delivery at the Commonwealth Club.

Posted by Carter Wood at 6:45 PM | 2 comments; click here to read them or submit your own! | Send to a Friend

March 21, 2008

FISA: Another Week of Inaction Passes

Good, tough editorial in today's Wall Street Journal, "Wiretaps and Blue Dogs," on the House's passage of its intelligence bill, meant only for political cover instead of legitimately providing for effective surveillance of foreign terrorist suspects:

In addition to leaving phone carriers exposed to billion-dollar lawsuits, the legislation strips away the "state secrets" privilege for any entity that cooperated with the U.S. intelligence community. What this does, essentially, is ensure that the dozens of suits already pending against carriers would, at the very least, reach the merit phase of litigation and possibly drag on for years. Such legal exposure makes it that much more difficult to gain private cooperation in national security emergencies going forward.

Another provision would create a new 9/11-style commission to investigate antiterror surveillance. Congressional committees already exist to perform this oversight, but no matter. The first 9/11 commission blamed everyone for not doing enough to fight terror. This commission would have as its main goal blaming the Bush Administration for trying to do too much.

By requiring prior court approval to gather foreign intelligence from foreign targets on foreign soil, the House measure would also further involve unelected judges in warfighting decisions. By the way, since when do foreign targets have a right to any court review under the U.S. Constitution?

The House-passed legislation may have served its narrow, political purpose for now. We haven't seen a lot of coverage of the issue from local media outlets this first week of the Easter recess.

One more week before Congress returns. Let's hope the House leadership is satisfied with the temporary cover and now agrees to serious discussion about what laws are really needed for effective surveillance of America's murderous enemies.

Posted by Carter Wood at 12:48 PM | Click here to comment | Send to a Friend

March 14, 2008

House FISA Bill Passes, 213-197

Final vote on H.R. 3773, 213-197 (1 present). Looks like many of the House Blue Dog Democrats who voted for the Senate bill, S. 2248, also voted for this new House Democratic leadership bill.

That's an awful lot of people not voting, 24?

Any bill without immunity for telecom companies will not become law.

UPDATE (2:35 p.m.) The AP story by Pamela Hess is a good summary.

UPDATE (2:58 p.m.): A very sharp reaction from Senate Minority Leader Mitch McConnell:

This House vote represents a ‘cover vote’ which the Democratic leadership believes will allow them to go on their Easter recess claiming to have passed a bill that protects America. But instead, they’ve done great harm to the effort to enact a responsible strengthening of our anti-terror laws during this session of the Congress. Democrats passed a bill which would drag patriotic private companies into court for answering their government’s call for help, created yet another Commission to investigate the administration, and failed our intelligence professionals by denying them the tools they need to track and stop foreign terrorists before they act.

UPDATE (5:27 p.m.): Andy McCarthy cuts through the rhetoric:

But the bottom line is: when the Protect America Act lapsed on February 16 due to House inaction, we lost the ability to monitor without restrictions emerging terrorist threats overseas. As National Intelligence Director Mike McConnell (a former Clinton Administration director of the NSA) has observed, we have lost intelligence. Thanks to today's action, that unacceptable situation will continue.

Posted by Carter Wood at 2:13 PM | 3 comments; click here to read them or submit your own! | Send to a Friend

FISA: Debate Starts on Inadequate House Bill

Now debating the rule for the FISA Amendments Act. Yesterday's secret session in the House achieved...well, we don't know...it was secret. From CNet:

House Majority Leader Steny Hoyer (D-Md.) said he heard nothing new that would dissuade him from urging the House to support the bill that Democrats have drafted. Blunt, for his part, said the "constructive session" offered "powerful reasons" why the House should instead support a U.S. Senate version, favored by President Bush, which does supply retroactive immunity.

An hour of debate was scheduled to begin late Friday morning, with votes expected to wrap up during the early afternoon. Even if the Democrats succeed in getting their bill passed, however, it would have to be reconciled with the Senate's version. President Bush has promised to veto anything lacking retroactive immunity.

Rep. Doc Hastings (R-WA) notes that the current proposal being considered on the House floor will have a total of 20 minutes of debate available for the House Intelligence Committee on the issue. Why such a closed rule?

Let the House vote on the Senate bill, S. 2048, which passed on a strong, overwhelming bipartisan vote, Hastings argues.

Posted by Carter Wood at 10:27 AM | Click here to comment | Send to a Friend

March 13, 2008

President Bush on House FISA Bill

From comments this morning on the South Lawn of the White House, reacting to the House legislation that proposes a new, complicated

First, the House bill could reopen dangerous intelligence gaps by putting in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists. This is an approach that Congress explicitly rejected last August when bipartisan majorities in both houses passed the Protect America Act. And it is an approach the Senate rejected last month when it passed a new -- new legislation to extend and strengthen the Protect America Act by an overwhelming vote of 68 to 29.

Now House leaders are proposing to undermine this consensus. Their partisan legislation would extend protections we enjoy as Americans to foreign terrorists overseas. It would cause us to lose vital intelligence on terrorist threats, and it is a risk that our country cannot afford to take.

Second, the House bill fails to provide liability protection to companies believed to have assisted in protecting our nation after the 9/11 attacks. Instead, the House bill would make matters even worse by allowing litigation to continue for years. In fact, House leaders simply adopted the position that class action trial lawyers are taking in the multi-billion-dollar lawsuits they have filed. This litigation would undermine the private sector's willingness to cooperate with the intelligence community, cooperation that is absolutely essential to protecting our country from harm. This litigation would require the disclosure of state secrets that could lead to the public release of highly classified information that our enemies could use against us. And this litigation would be unfair, because any companies that assisted us after 9/11 were assured by our government that their cooperation was legal and necessary.

Majority Leader Steny Hoyer issued a statement in response, saying the President misread the bill.

In fact, this bill is the product of weeks of negotiations – negotiations which the White House and Congressional Republicans refused to engage in – and it marries the best of the House and Senate-passed FISA bills.

OK, without the participation of the executive branch and advocates of telecom immunity, then whom were the negotiations between? John Conyers and Silvestre Reyes? The ACLU and the Electronic Frontier Foundation? The trial lawyers and Daily Kos?

UPDATE (2:05 p.m.): House Republicans pitch a closed-door session. Seemed like a stunt when liberals Democrats were calling for the same thing last month.

Posted by Carter Wood at 12:33 PM | Click here to comment | Send to a Friend

FISA: Feints, Tricks and Political Games

The House is expected today to vote on the FISA Amendments Act, legislation that only forestalls the necessary extension of authority for surveillance of foreign, electronic communications by suspected terrorists. Sponsored by Judiciary Chairman John Conyers (D-MI) and Intelligence Chairman Silvestre Reyes (D-TX), the bill does not grant the retroactive immunity for telecom companies that is a key measure of a serious, effective bill versus one that actually hinders the pursuit of terrorist killers.

The Washington Times describes the recent developments that have led us to this sad stage, where some House members remain intent on attacking the private sector, whose legal cooperation is essential for effective intelligence gathering against America's enemies. The Times notes recent comments by Reyes indicating that House leadership was looking for a graceful way out, agreeing to immunity provisions.

But the reaction from trial lawyers who stood to profit from lawsuits against telecommunications firms was decidedly negative and the left-wing blogosphere was downright apoplectic. Mr. Reyes appeared to have gone underground, resurfacing Tuesday with a one-paragraph statement, also signed by House Judiciary Committee Chairman John Conyers, denouncing the White House as obstructionist. Meanwhile, House Democrats leaked to the New York Times the outlines of a new proposal that denies retroactive immunity to the telecommunications firms. Rather than bar lawsuits against companies for doing their patriotic duty by helping the U.S. government prevent terrorist attacks, the Pelosi plan would ensure that they remain vulnerable to new litigation: House Democrats would create a bipartisan congressional commission with subpoena power to issue a report on U.S. terrorist surveillance programs. They would leave the issue of immunity to the federal courts — ensuring that it becomes the subject of protracted litigation that could go on for years.

And then it's off for a two-week vacation.

Sir! We have new intelligence of an imminent attack!

Well, then, call out our top team to prevent it. Now!

Can't, sir. They're on vacation. It's Easter break. Almost everyone's gone.

Damn. Who's left?

Well, we have some trial lawyers available. But there's paperwork to fill out.

Posted by Carter Wood at 9:07 AM | Click here to comment | Send to a Friend

March 12, 2008

FISA Canards

Opponents of updating foreign intelligence authority have done a good job of misrepresenting the issue during the current Congressional debate. Andrew M. Grossman of the Heritage Foundation brings clarity and accuracy to the discussion in a new web memo, "FISA Modernization Is Not About 'Warrantless Wiretapping'":

No phrase has done more to confuse the public and distort informed debate over foreign surveillance than "warrantless wiretapping." The accusation that the federal government is listening in on Americans' domestic telephone conversations without any legal authority or any judicial oversight has been an article of faith among those who oppose modernization of the Foreign Intelligence Surveillance Act (FISA).

Though the government's foreign intelligence programs are clouded in secrecy (and rightly so), publicly available information, statutory text, and recent comments by government officials provide strong indications that FISA modernization, by making permanent the authorities of the now-expired Protect America Act (PAA), has nothing at all to do with domestic wiretapping and has only an incidental relation to Americans' communications. Now that Congress is again considering restoring FISA to its originally intended scope of coverage by extending the authorities in the PAA, it is important to understand how the government uses these authorities.

We've noticed the same phenomenon.

Posted by Carter Wood at 12:22 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

March 11, 2008

FISA: Latest 'Compromise' is No Compromise

The Washington Post summarizes the latest maneuvering by House leadership to keep litigation alive against telecom companies that agreed with Administration's request to assist in foreign surveillance of terrorist suspects. They propose allowing secret civil trials, obstensibly to protect national secrets, but really just as a means to keep the litigatory pursuit of the telecom companies alive.

White House spokesman Dana Perino issued a statement, including this withering observation:

As the bipartisan Senate Select Committee on Intelligence concluded, the failure to extend liability protection will undermine the private sector's willingness to help the Intelligence Community do its job. Without the assistance of the private sector, our intelligence agencies will be hobbled in their efforts to protect the country from attack.

It is clear that House Democratic leaders have once again bowed to the demands of class-action trial lawyers, MoveOn.org, and Code Pink and put their ideological interests ahead of the national interest. The priorities of House leaders are dangerously misplaced. Instead of providing liability protection to companies that did their patriotic duty, House leaders would establish a commission to examine intelligence activities in the past that helped protect the country from further attacks after 9/11.

The Senate, which passed a reasonable surveillance bill on a bipartisan basis, will not go along. Shocking that the House would extend its failure to act through the next, two-week vacation starting Friday.

More...

The ACLU is pleased, mostly, with the House bill, describing it as a compromise. What? A compromise among like-minded is hardly a compromise.

Sen. Pat Leady (D-VT) endorses the new House plan.

CNN story quotes House Majority Leader Steny Hoyer as saying the House vote will be Thursday.

Posted by Carter Wood at 11:05 PM | Click here to comment | Send to a Friend

FISA: No Immunity from Trial Lawyers

In Politico, a letter to the editor from Darren McKinney, director of communications, American Tort Reform Association:

Politico’s coverage of the immunity-for-telecoms-versus-no-immunity-for-telecoms debate that’s stalling vitally important reauthorization of the Foreign Intelligence Surveillance Act [“Republicans Unwilling to Budge on FISA Update,” March 5] continues to ignore the obvious.

Though some members of Congress opposing immunity may be genuinely and primarily motivated by their desire to protect civil liberties, many other “more liberal” lawmakers also are plainly motivated by their political allegiance to and dependence on the wealthy personal injury bar, which desperately wishes to maintain some 40 potentially lucrative telecom lawsuits with designs on more to come.

If the National Rifle Association pressed its Hill allies to hold out against a gun control regulation contained in legislation supported by most security experts and majorities in both bodies, Politico readers would rightly get details about how much NRA money had found its way into the campaign coffers of those holdouts. But when it comes to telecom litigation, a special interest that gives more money to political campaigns than any other is exercising comparable influence, and it goes unmentioned.

The Heritage Foundation's blog, The Foundry, reports that a new House FISA bill tries to finesse the issue of immunity for telecom companies by passing off the question to the courts. TPMMuckraker, a liberal blog, provides more details here.

Eliciting support from and protecting companies that assist in preventing America's enemies from killing us is a policy question: Should the private sector be encouraged to provide effective assistance in surveillance of foreign terrorists? Policy questions should be decided by the policymaking branch of government, the Legislature, not pawned off to the interpretation of federal courts. This new House provision is an attempt to escape responsibility.

Posted by Carter Wood at 1:47 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

March 10, 2008

Enough with this 'Fear-Mongering' Already

Have you noticed how widely the accusation of "fear-mongering" has become? In all kinds of debate?

"It’s a sad attempt at economic fear mongering,” said OOIDA Executive Vice President Todd Spencer, responding to this morning's DOT news conference on cross-border trucking issues.

"What I don't like about the ad is its fear-mongering" -- 18-year-old Casey Knowles on Good Morning America, reacting to Hillary Clinton's 3 a.m. phone-call ad. She's the sleeping girl in the spot.

"I do, however, feel badly that many have listened to untruths and have been prey to fear-mongering tactics spewed from the mouths of longtime anti-social service agency leaders of our town." -- Diane Montgomery of Framingham, Mass., condemning criticism of a residence house for families involved with drug addiction.

"It was an unfortunate slip, but one that echoed the sentiments of many Clinton apologists like me -- who've watched Hillary's descent into pettiness and fear-mongering ..." -- Seth Grahame-Smith in the Huffington Post, renouncing his past support for Hillary Clinton.

"This is a case where Hillary Rodham Clinton and John McCain should take the initiative and denounce the fear-mongering about Mr. Obama as hate speech" -- New York Times columnist Nicholas Kristof, objecting to religious slurs against the candidate.

"On trade, Barack Obama’s opportunistic fear-mongering defines the new Democratic orthodoxy." -- National Review editor Rich Lowry on anti-NAFTA rhetoric.

"[Feith] attacks those criticisms as 'fear-mongering' that serves the interests of certain officials and journalists." -- From a Washington Post story on Douglas Feith, ex-Defense official getting even with his former antagonists among intelligence agencies.

"Last week, 19 Democratic senators surrendered to bullying and fear mongering, extending the executive autocracy of the Bush-Cheney regime." -- Former Texas ag commissioner and left-wing pundit Jim Hightower, ranting about bipartisan intelligence legislation.

Intelligence legislation is the topic that got us noticing this rash of fear-mongering rhetoric, specifically S. 2048, the legislation that updates the federal authority to monitor foreign electronic communications of terrorist suspects; the Senate bill includes retroactive immunity for telecom companies that acceded to federal requests to assist in the monitoring.

Rather than respond to the arguments, critics of the FISA legislation are wont to charge "fear-mongering" -- here are some prime examples -- a rhetorical tactic that evades debate and demonizes their opponents. It's bluster and bullying. Enough, already.

Posted by Carter Wood at 2:22 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

March 7, 2008

FISA: From the Obama Camp, Support for Immunity

From the ABC News blog, The Blotter:

In a new interview with National Journal magazine, an intelligence adviser to Barack Obama's presidential campaign broke with his candidate’s position opposing retroactive legal protection for telecommunications companies being sued for cooperating with a dubious U.S. government domestic surveillance program.

"I do believe strongly that [telecoms] should be granted that immunity," former CIA official John Brennan told National Journal reporter Shane Harris in the interview. "They were told to [cooperate] by the appropriate authorities that were operating in a legal context."

"I know people are concerned about that, but I do believe that's the right thing to do," added Brennan, who is an intelligence and foreign policy adviser to Obama.

Senator Obama voted to strip telecom immunity from the FISA update bill, S. 2248.

Meanwhile, House oppponents of telecom immunity, losing the fight on the merits -- and the politics -- invent new controversies to justify their failure to renew effective U.S. surveillance of communications by foreign terrorists.

Posted by Carter Wood at 5:04 PM | Click here to comment | Send to a Friend

Once an Apprentice, now a Political Technomage

Great to see Dave Kralik interviewed in today's Investor's Business Daily. Kralik, who once labored here at the NAM in pseudonymous obscurity as the Blogger's Apprentice, is now director of Internet strategy at American Solutions for Winning the Future, Newt Gingrich's forward-thinking outfit. From IBD:

Kralik: We realize at American Solutions that what we want to accomplish cannot be done without embracing the latest technology. That includes social networking and online learning and collaboration and mobile technologies.

We opened an office here in Silicon Valley to embed ourselves with the technology sector, to learn from the best.

That's part of my mission being here, to connect with the tech companies that made Silicon Valley the center of innovation.

IBD: But are you looking for best practices in technology or looking instead to hear what concerns the executives in Silicon Valley have?

Kralik: It's both. We want to play a strong advocacy role. We want to understand the issues that are important to Silicon Valley executives and employees.

For instance, it's utterly silly that we have to extend year after year the R&D tax credit and for some reason we can't make it permanent. Why can't we raise the level of H-1B visas (for foreign workers)? We want to be out here to advocate for those issues.

Nice write-up, Dave. Best of luck on the advocacy.

Posted by Carter Wood at 12:23 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

March 6, 2008

FISA: Letting Surveillance Authority Hang in Limbo

From CQ Politics:

House Speaker Nancy Pelosi indicated Thursday that new legislation regulating electronic surveillance may come to the House floor next week, but would not commit to a vote before the Easter recess.

She called the bill that easily passed the Senate on Feb. 12 “not right,” and said Majority Leader Steny H. Hoyer , D-Md., continues talks with the Senate on how to meet House Democrats’ objections.

Does this strategy make any sense? Not for national security -- obviously, it doesn't -- but politically?

Well, maybe if the goal is to mollify the angry leftist netroots, like blogger mffarrow at the DailyKos.

All we need in order to win on FISA is for the House to do nothing. No vote means "compromises," no immunity, no unfettered governmental spying on its citizens.

I think this is our chance.

One really hopes that that attitude isn't driving House debate...or lack thereof.

UPDATE (9:55 a.m. Friday): Speaker Pelosi is now talking "exclusivity" as the key issue. More generally, she says, House Democrats are "at the mercy of the 17 or 18 Democrats in the Senate who are voting with the Republicans on this."

But...there are enough Democrats in the House who would vote for the Senate bill that it would pass. So who are they at the mercy of?

Posted by Carter Wood at 4:02 PM | Click here to comment | Send to a Friend

March 5, 2008

FISA: Priorities

From Politico's blog, The Crypt:

House Majority Leader Steny H. Hoyer said Wednesday the House will not take up an electronic surveillance measure this week, further delaying any decisions on the controversial measure.

Hoyer said in his weekly press conference that he hoped to wrap up work on an update to the Foreign Intelligence Surveillance Act; “towards the end of this week or the beginning of next week.”

However, the majority leader acknowledged that there were “still disagreements” within the Democratic caucus over the issue of granting immunity to telecom companies who aided the government in the wiretapping program.

Remember right before the Presidents' Day recess, House leadership was pushing a 21-day extension of the Protect America Act? If enacted, that extension would have expired this upcoming Saturday.

So would have another extension have been necessary? And another after that?

Posted by Carter Wood at 2:17 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

FISA: Where Surveillance Now Stands in Congress

There appears to be some disagreement.

UPDATE (8:55 a.m.): OK, the links.

Bush's Security 'Scare Tactics' Will Not Divide Democrats -- That's last week's Washington Post op-ed by the chairmen of the Intelligence and Judiciary Committees. Since then, it appears Bush's security 'scare tactics' have divided Democrats. Or perhaps it's the merits of the argument.

Congress deadlocked on FISA.

White House Not Tough Enough on FISA.

Posted by Carter Wood at 8:44 AM | Click here to comment | Send to a Friend

March 4, 2008

FISA Update: Movement, Process, Progress

From The Washington Post:

House and Senate Democratic leaders are headed into talks today that they say could lead to a breakthrough on legislation to revamp domestic surveillance powers and grant phone companies some form of immunity for their role in the administration's warrantless wiretapping program after the Sept. 11, 2001, terrorist attacks.

A senior House Democratic aide said a bill could be sent to President Bush as early as next week. But significant issues remain, including those surrounding immunity, said Wyndee R. Parker, general counsel of the House Permanent Select Committee on Intelligence.

It appears the movement by House Democrats toward a resolution of this issue, complete with immunity, is motivated by a mixture of serous concern about national security and the political reality of this -- it's a loser issue except among the activists and trial lawyers.

Andrew C. McCarthy writes about telecom immunity in today's National Review Online, arguing that sensible Democrats are worried.

They know their House leadership has bungled this issue. The Democrat-controlled Senate passed a compromise measure by a decisive two-to-one margin. Yet, Speaker Nancy Pelosi refused to allow the Senate bill to even reach the floor — where it would have doubtlessly passed. Instead, top Democrats embarrassed themselves by voting a couple of transparently politicized, legally meaningless contempt citations against Bush-administration officials and then . . . leaving for a week’s vacation. Now, we are only a few legislative days away from yet another recess, this one for two weeks over Easter.

The party’s 2008 prospects may hinge on a convincing demonstration of national-security seriousness. For members who grasp that, skipping town without addressing the perilous gap in our capacity to detect new terrorist threats is unacceptable.

Seems like a fair assessment, politically speaking.

Posted by Carter Wood at 11:09 AM | Click here to comment | Send to a Friend

March 3, 2008

FISA: President to Address Attorneys General

From the White House press gaggle this morning:

Then at 1:00 p.m., the President meets with the National Association of Attorneys General. Attorney General Mukasey will be briefing him ahead of time. The President will come in, spend some time with them. His remarks to the attorneys general with the pool will focus on FISA. Twenty-one of our nation's attorneys general have written a letter in support of FISA modernization.

The letter from the attorneys general is available here as a .pdf file.

Over on the left, anger at the House possibly moving on the FISA legislation, including telecom immunity.

UPDATE (1:40 p.m.) At the risk of offering political advice, we wonder why House Democratic leadership would be so responsive to angry left activists on this issue, when any compromise was going to elicit condemnations like this one from New York lawyer Glenn Greenwald:

No rational person who has watched Congressional Democrats since they took over Congress could possibly have expected them to do anything but what they always do: namely, whatever they're told to do by the White House. The last thing they were ever going to do was stand their ground over Americans' basic liberties and the rule of law, concepts about which they couldn't possibly care less.

And Greenwald is one of the charitable, non-cursing critics.

UPDATE (4:43 p.m.): The President's remarks to the attorneys general. Familiar arguments. Good arguments, but familiar.

Posted by Carter Wood at 12:13 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

March 2, 2008

FISA: Yeah, Looks Like Movement in the House

House Intelligence Chairman Sylvestre Reyes (D-TX) signaled movement on immunity for telecom companies. From the AP:

"We are talking to the representatives from the communications companies because if we're going to give them blanket immunity, we want to know and we want to understand what it is that we're giving immunity for," he said. "I have an open mind about that."

Regarding a compromise deal, Reyes said: "We think we're very close, probably within the next week we'll be able to hopefully bring it to a vote."

Rep. Roy Blunt, the second-ranking Republican in the House, said Sunday he was not "quite that optimistic yet."

The Reuters story strikes a slightly more sceptical point of editorial view.

Posted by Carter Wood at 4:29 PM | Click here to comment | Send to a Friend

FISA: Surveillance Bill Moves in House?

Ed Morrissey outlines the developing arrangement that would allow House passage of FISA reform legislation, complete with telecom immunity. The report he cites:

To break an impasse over legislation overhauling the Foreign Intelligence Surveillance Act, House Democratic leaders are considering the option of taking up a Senate-passed FISA bill in stages, congressional sources said today. Under the plan, the House would vote separately on the first title of the bill, which authorizes surveillance activities, and then on the bill’s second title, which grants retroactive legal immunity to telecommunications companies that aided the Bush administration’s warrantless electronic surveillance activities. The two would be recombined, assuming passage of both titles.

In this way, Democratic leaders believe they can give an out to lawmakers opposed to the retroactive immunity provision. Republican leadership sources said their caucus would back such a plan because not only would it give Democratic leaders the out they need, it would provide a political win for the GOP. It remains to be seen if such a move will placate liberal Democrats who adamantly oppose giving in to the Bush administration on the immunity issue.

More on the legislative arrangement from the Los Angeles Times.

The Sunday Washington Post includes a big-picture review of the surveillance and telecom immunity disputes. (Motley Rice, bigtime trial lawyers known for asbestos and lead paint suits, are clearly motivated by heartfelt civil liberties concerns.)

Posted by Hank Cox at 12:21 AM | Click here to comment | Send to a Friend

February 28, 2008

FISA Update: Progress?

A statement from Senate Majority Leader Steny Hoyer, following a meeting of House and Senate Republicans and Democrats with Benjamin Powell, general counsel for the Office of the Director of National Intelligence:

The Administration has demanded that Congress immunize major telecommunications companies from legal liability for their participation in a government surveillance program about which many questions have been raised. On an issue of this magnitude, it is imperative that our deliberations be thoughtful and thorough. Anything less would be an abdication of our responsibility.

Certainly true, and the Senate Intelligence Committee's report on S. 2248, the FISA amendments, reflected thoughtful and thorough deliberation.

Posted by Carter Wood at 10:59 PM | Click here to comment | Send to a Friend

FISA Update: President Bush's News Conference

From President Bush's news conference today:

Members should also act on a very urgent priority, and that is to pass legislation our intelligence officials need to quickly and effectively monitor terrorist communications. At issue is a dispute over whether telecommunications companies should be subjected to class-action lawsuits because they are believed to have helped defend America after the attacks of 9/11. Allowing these lawsuits to proceed would be unfair. If any of these companies helped us, they did so after being told by our government that their assistance was legal and vital to our national security.

Allowing the lawsuits to proceed could aid our enemies, because the litigation process could lead to the disclosure of information about how we conduct surveillance, and it would give al Qaeda and others a roadmap as to how to avoid the surveillance. Allowing these lawsuits to proceed could make it harder to track the terrorists, because private companies besieged by and fearful of lawsuits would be less willing to help us quickly get the information we need. Without the cooperation of the private sector, we cannot protect our country from terrorist attack.

Protecting these companies from lawsuits is not a partisan issue. Republicans and Democrats in the United States Senate came together and passed a good bill, protecting private companies from these abusive lawsuits. And Republicans and Democrats in the House stand ready to pass the Senate bill, if House leaders would only stop blocking an up or down vote and let the majority in the House prevail.

House floor schedule for Thursday.

Suspensions (7 Bills):

1) S. 2478 - To designate the facility of the United States Postal Service located at 59 Colby Corner in East Hampstead, New Hampshire, as the “Captain Jonathan D. Grassbaugh Post Office.” (Sen. Sununu – Oversight and Government Reform)

2) S. 2272 – To designate the facility of the United States Postal Service known as the Southpark Station in Alexandria, Louisiana, as the John "Marty" Thiels Southpark Station, in honor and memory of Thiels, a Louisiana postal worker who was killed in the line of duty on October 4, 2007 (Sen. Vitter – Oversight and Government Reform)

3) H.R. 3936 – To designate the facility of the United States Postal Service located at 116 Helen Highway in Cleveland, Georgia, as the “Sgt. Jason Harkins Post Office.” (Rep. Deal – Oversight and Government Reform)

4) H.R. 3803 - To designate the facility of the United States Postal Service located at 3100 Cashwell Drive in Goldsboro, North Carolina, as the "John Henry Wooten, Sr. Post Office Building."(Rep. Butterfield – Oversight and Government Reform)

5) H.R. 4454 – To designate the facility of the United States Postal Service located at 3050 Hunsinger Lane in Louisville, Kentucky, as the "Iraq and Afghanistan Fallen Military Heroes of Louisville Memorial Post Office Building", in honor of the servicemen and women from Louisville, Kentucky, who died in service during Operation Enduring Freedom and Operation Iraqi Freedom (Rep. Yarmuth – Oversight and Government Reform)

6) S.Con.Res. 67 - A concurrent resolution establishing the Joint Congressional Committee on Inaugural Ceremonies (Sen. Feinstein – House Administration)

7) S.Con.Res. 68 - A concurrent resolution authorizing the use of the rotunda of the Capitol by the Joint Congressional Committee on Inaugural Ceremonies (Sen. Feinstein – House Administration)

CQ Politics reports House may take up surveillance legislation next week, but what legislation? "'We don’t have agreement but ... I am very hopeful that we will have legislation on the floor next week,' House Majority Leader Steny H. Hoyer , D-Md., said on the floor Thursday in a colloquy with Minority Whip Roy Blunt , R-Mo."

Posted by Carter Wood at 2:08 PM | Click here to comment | Send to a Friend

February 27, 2008

Net Regulation Means Less Competition

On Tuesday, the Federal Communications Commission held a hearing in Cambridge, MA, on broadband network management practices. (For commissioners' statements, scroll down.)

From the Hands off the Internet coalition:

The following statement may be attributed to Mike McCurry and Christopher Wolf, co-chairs of the Hands Off the Internet coalition (HandsOff.org):

“For the typical Net user, today’s hearing is not just an academic debate about government policy. If the FCC yields to those pushing for government regulation over the Internet, the result will be higher broadband access costs, which fewer Americans will be able to afford. Our focus should be on new and faster access choices, not policies that tie this progress down in red tape and bureaucracy.”

The Hands Off the Internet coalition is a Washington, DC-based coalition of companies and nonprofit organizations that believes the Internet has flourished because government has not tried to regulate it. Members include Alcatel-Lucent, AT&T, 3M, the National Association of Manufacturers, FiberControl, and Cinergy Communications. Nonprofit members include Citizens Against Government Waste, the American Conservative Union and the National Black Chamber of Commerce.

Posted by Carter Wood at 7:14 PM | Click here to comment | Send to a Friend

February 26, 2008

FISA: We Are Less Safe

An op-ed in today's Wall Street Journal by Sen. Kit Bond (R-MO), Rep. Pete Hoekstra (R-MI) and Rep. Lamar Smith (R-TX) on the need for enactment of the Senate-passed legislation to clearly authorize monitor of foreign intelligence. "Hard of Hearing" takes the House Democratic leadership to task for delaying action on the legislation, and stresses the need for retroactive immunity for the telecommunications companies that assist in surveillance.

Telecommunications companies are for now, after intense negotiations, cooperating with the government under the assumption that protections granted to them under the Protect America Act will be upheld in court, even though the law is now defunct. But there is no guarantee that the courts will do any such thing. There is also no guarantee that corporate executives, under pressure from their legal counsels and shareholders to limit liabilities, will continue to cooperate.

- The cooperation of the telecommunications companies is limited to intercepting communications of terrorists identified before the Protect America Act lapsed. Until intelligence agencies can chase leads involving foreign communications, the U.S. will not be as safe as it was just a few weeks ago.

The authors reject the idea of a "compromise" on telecom immunity being discussed by Speaker Pelosi as gutting the bill.

Hoekstra speaks at the Heritage Foundation today at 10 a.m., a talk entitled, "See No Danger? Hear No Danger? Congress Missing in Action!" Heritage will broadcast the speech on the Internet, here.

Posted by Carter Wood at 9:20 AM | 1 comment; click here to read it or submit your own! | Send to a Friend

February 25, 2008

Today's Surveillance Developments...

President Bush, meeting with governors today at the White House, reiterated the basic and persuasive arguments for Congress renewing federal authority for monitoring foreign electronic communications. His point about telecom immunity has received less attention than others:

[Such] lawsuits would require disclosure of information, which will make it harder to protect the country. You can imagine when people start defending themselves, they're going to be asked all kinds of questions about tactics used. Makes absolutely no sense to give the enemy more knowledge about what the United States is doing to protect the American people.

We've reached the running-of-the-ads stage of the debate, the elevating of political pressure in a way that will surely be repeated come the fall elections. This video spot by the group, Defense of Democracies, is nonetheless a fair-enough piece, noting the Senate's bipartisan passage of the legislation (S. 2248) and chiding House leadership for going on vacation instead of acting to extend surveillance authority. Which it did. One Minnesota congressman, Rep. Tim Walz, who's criticized denounces the ad, cites his National Guard service, and lashes out at "fear-mongering." Former federal prosecutor Andy McCarthy responds here.

In the White House press briefing today, Dana Perino discusses the "scare-tactic" line of defense and responds to the Washington Post op-ed, "Scare Tactics and Our Surveillance Bill," by the chairmen of the House and Senate Intelligence and Judiciary Committees. Perino:

The issue really right now between the House and the Senate, as far as I can tell, the biggest issue is retroactive liability protection, and in their op-ed they just had a passing glance to that issue. But it is one of the biggest sticking points, because at the end of the day if we don't have the companies helping us, then we won't have a program.

More tomorrow...undoubtedly.

Posted by Carter Wood at 8:12 PM | Click here to comment | Send to a Friend

FISA: This Seems About Right

From CQ Politics:

Lawmakers on both sides of the aisle say they’re determined to hammer out electronic surveillance legislation, but with hostile rhetoric intensifying and no hard deadline for action, a quick resolution is unlikely.

A temporary surveillance law (PL 110-55) expired Feb. 16, amid squabbling among Democrats and Republicans who blame each other for the lapse of the law. As Congress returns to work this week, GOP lawmakers, backed by the Bush administration, are insisting that the House simply clear bipartisan Senate-passed surveillance legislation (HR 3773).

But a version the House passed in November differs significantly from the Senate legislation, and Democratic leaders are equally insistent that the two chambers must strike a deal.

In today's Washington Post, the Democratic chairmen of the House and Senate Judiciary and Intelligence committees dispute the assertions that American intelligence gathering has been hurt by the lapse of Protect America Act surveillance authority. The op-ed, "Scare Tactics and Our Surveillance Bill," suffered from the writers changing the topic, attacking the Administration for mishandling the Iraq war; if the arguments about FISA were so persuasive, then why the rhetorical misdirection?

Director of National Intelligence Michael McConnell was on CNN Late Edition yesterday with John King. McConnell responded to the now constant charges of "fear-mongering."

KING: But Senator Harry Reid, the Senate majority leader, says this, "No amount of fearmongering will change the fact that our intelligence-collection capabilities have not been weakened last week. Even the president's own director of national intelligence agrees."

That would be you, sir, Harry Reid putting you in his statement accusing the administration, of which you are a member, of fearmongering.

MCCONNELL: John, we're less safe because we're not as an agile. And we have to have the cooperation and partnership from the private sector. And we are actually negotiating -- so, think about it. We may be able to get information that's fleeting, seconds or minutes, and you have to sit down with a lawyer to say, well, can I do this?

So that's the issue that makes us less capable because we can't keep up. We have to be agile, and it takes full partnership from the private sector.

McConnell also makes the case for retroactive immunity for telecommunications companies that assisted in the surveillance of foreign-based communications of suspected terrorists.

Posted by Carter Wood at 12:25 PM | Click here to comment | Send to a Friend

February 24, 2008

WaPo and Standards for Anonymous Quotes

James Taranto, who compiles and writes The Best of the Web column for the online Wall Street Journal, takes delight in pointing out the stretches reporters go to justify a quote's anonymity. We offer this one for consideration, taken from The Washington Post's Saturday story, "Spy Law Lapse Blamed for Lost Information." The issue is the granting of retroactive immunity to telephone companies that acceded to the federal government's request to assist in monitoring of foreign communications by suspected terrorists. The telephone carriers declined comment, reasonably enough given pending litigation.

But some people familiar with their thinking said that the companies reduced cooperation for practical reasons.

"The skittishness and concern is the companies are already spending a great deal of money on a number of suits pending that they don't have the ability to defend against because of the State Secrets Act," said one source, who spoke on the condition of anonymity because of the sensitivity of the topic. "That's why the companies are saying, 'We just can't put ourselves in the position of having another round of suits against us because there's no law in place at the moment that will protect us from litigation.' "

Now, that's a reasonable observation that's probably accurate. But how in the world is a reader supposed to judge the credibility of that source? And citing a topic's sensitivity as an excuse for skipping attribution? That's a standard that allows pretty much every comment in a political or legal story to be made anonymously.

From Leonard Downie Jr., executive editor, in a March 7th, 2004 column.

That's why we will try to explain to readers why a source is not being named. We also will strive to tell our readers as much as we can about why such a source would be knowledgeable and whether the source has a particular point of view -- for example, "a police official involved in the investigation," "an aide to a Democrat on the Senate Commerce Committee" or "a senior Pentagon official who disagrees with the administration's policy."

Well?

Posted by Carter Wood at 8:44 PM | Click here to comment | Send to a Friend

February 23, 2008

FISA: President Bush's Radio Address

From the President's weekly radio address:

When Congress reconvenes on Monday, Members of the House have a choice to make: They can empower the trial bar -- or they can empower the intelligence community. They can help class action trial lawyers sue for billions of dollars -- or they can help our intelligence officials protect millions of lives. They can put our national security in the hands of plaintiffs' lawyers -- or they can entrust it to the men and women of our government who work day and night to keep us safe. As they make their choice, Members of Congress must never forget: Somewhere in the world, at this very moment, terrorists are planning the next attack on America. And to protect America from such attacks, we must protect our telecommunications companies from abusive lawsuits.

The House floor schedule for the week does not list any FISA or Protect America Act legislation as being acted upon.

UPDATE (3:10 p.m. Sunday): Thanks to continued and honorable cooperation by telephone companies during this period of uncertainty, the prospective damage to intelligence gathering is being ameliorated. But damage has been indeed done, Andy McCarthy writes, demolishing new anti-surveillance sophistry.

Posted by Carter Wood at 3:24 PM | Click here to comment | Send to a Friend

FISA: The Consequence of Delay

From a letter (.pdf here) from Director of National Intelligence Mike McConnell and Attorney General Michael B. Mukasey to Rep. Silvestre Reyes, chairman of the House Intelligence Committee.

We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act. Because of this uncertainty, some partners have reduced cooperation. In particular, they have delayed or refused compliance with our requests to initiate new surveillances of terrorist and other foreign intelligence targets under existing directives issued pursuant to the Protect America Act.

House Majority Leader Steny Hoyer's response to those assertions is revealing. In a statement, Hoyer says:

[The] Bush Administration repeated its assertion today that the expiration of the Protect America Act has resulted in intelligence gaps. If this is true, then it was grossly irresponsible for the President to threaten to veto and Congressional Republicans to vote against a PAA extension and any intelligence gap would be one of their own creation. Again, if Republicans truly believe gaps are created by a PAA expiration, they should support a temporary extension and join us in quickly crafting a strong, bipartisan FISA modernization bill that represents the best of the House and Senate passed bills.

Those are two awfully consequential "ifs." They acknowledge as credible the argument that intelligence is being harmed by the House's inaction on foreign intelligence surveillance authority. (As did the more than 20 House Democrats who disagreed with their leadership's handling of the legislation.) And, after all, does anyone in a responsible position of power think that McConnell and Mukasey are lying?

Once you concede the Administration's case as likely or at least legitimate -- as Hoyer has -- then the rest of the rhetoric is just politics, positioning for voters and anti-surveillance constituencies. What's need isn't rhetoric, what's needed is authority to effectively monitor foreign communications of suspected terrorists. What's needed isn't politics, but immunity for good corporate citizens who acted responsibly in assisting in the prevention of Americans being massacred by terrorists.

Posted by Carter Wood at 8:21 AM | Click here to comment | Send to a Friend

February 22, 2008

Telecom Immunity: Hanging Up on Trial Lawyers

So who's behind these 40 some civil suits against the telecommunications companies for responding to the federal government's request to assist in the monitoring of post-9/11 foreign electronic communications. Sure, you have the privacy absolutists at the Electronic Frontier Foundation and the ACLU, but you also have the usual suspects among the litigation shakedown set, the trial lawyers.

Consider Eric Isaacson, the former Milberg Weiss attorney who joined now convicted felon William Lerach at the California law firm, Coughlin Stoia. Isaacson and Lerach are lead plaintiffs in one of the high-profile lawsuits against the telecom companies, Hepting v. AT&T. Top Milberg Weiss attorneys have also been convicted or indicted for a kickback scheme to gin up class-action shareholder lawsuits.

Quin Hillyer looks at Isaacson's involvement and motives in an Examiner column today, "Telecoms face double risk on FISA."

[Isaacson] comes from exactly the sort of cutthroat milieu that makes telecoms balk (absent immunity) when asked for an emergency foreign-intelligence wiretap.

Just imagine how Coughlin Stoia could take information gleaned from “discovery” motions in the wiretap suit and use it to try to nail the phone company in a subsequent investors’ suit that is the firm’s stock in trade.

Remember the modus operandi of Milberg Weiss, tactics that Isaacson specializes in defending on appeal. As former partners described in their guilty pleas, the firm would troll for clients with stock in big corporations and then file suit almost any time the share-price dropped, without specific evidence of wrongdoing but based merely on what Lerach called his internal “X-ray vision.”

This X-ray vision amounted to plaintiff's lawyers abusing the discovery process to dredge up anything that could be twisted into appearances of wrongdoing. Juries would deliver huge verdicts. Hillyer comments:

Without immunity from such shakedowns, the companies surely would be forced to decline even the most urgent of future government requests. Director of National Intelligence John Negroponte has sworn under oath that the end result “reasonably could be expected to cause exceptionally grave damage to the national security of the United States.”

Shakedowns or security? Too many members of Congress are choosing the former.

P.S. EFF does have a fine page of documents on the FISA issues. It's http://www.eff.org/issues/nsa-spying.

Posted by Carter Wood at 9:12 AM | 2 comments; click here to read them or submit your own! | Send to a Friend

February 19, 2008

FISA: The Plaintiff's Bar as Policymakers

The Wall Street Journal continues its editorial analysis today of the House leadership's decision to allow the authority to intercept foreign communications lapse.

As for immunity for the telecom companies:

We asked one phone company executive what he'd do, after Friday's expiration, in response to a government request for cooperation. His answer was blunt: "I'm not doing it. If I don't have compulsion, I can't get out of court [and those lawsuits]. . . . I'm not going to do something voluntarily." Having talked to telecom executives, we can tell you this view is well-nigh universal.

And a harsh but accurate assessment:

What we have here is a remarkable display of the anti-antiterror minority at work. Democrats could vote directly to restrict wiretapping by the executive branch, but they lack the votes. So instead they're trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies. Then if there is another terror attack, they'll blame the phone companies for not cooperating.

Again, this is not a universal point of view among Congressional Democrats -- the Senate bill extending the surveillance authority passed with support from both parties, and Sen. Jay Rockefeller (D-WV) has been a strong advocate for effective authority. In the House, 21 Democratic members have expressed support for the Senate bill, S. 2248. But the activist left and plaintiff's bar seem to have the upper hand, at least tactically, at the moment.

(From the Wall Street Journal's Law Blog, via Glenn Reynolds.)

Posted by Carter Wood at 2:47 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

February 18, 2008

FISA: Half-Immunity No Answer

Andrew McCarthy demolishes the argument -- represented by a Specter-Whitehouse amendment in the Senate -- that replacing the telecommunications companies with the federal government as defendants in anti-surveillance lawsuits is a way out of the current FISA dispute.

[Probably] the worst part of any substitution deal would be the effect of Congress putting its muscle behind letting these suits proceed. That would make the suits appear more valid and viable, which would create an incentive for phone companies not to cooperate with the government in the future, regardless of any emergency conditions.

In any event, the aggressiveness with which we should pursue foreign intelligence gathering is a political issue which should be settled between Congress and the president (and, ultimately, the voters). The courtroom, with the ACLU and CAIR in the role of the public and the courts in the role of policy-maker, is not where a democracy settles such political questions.

Read the whole thing.

Posted by Carter Wood at 12:50 PM | Click here to comment | Send to a Friend

Robert Novak: Torts, Trial Lawyers and Terrorism

The House letting surveillance authority lapse? A political calculation, says Robert Novak. A cash calculation.

The true cause for blocking the bill was the Senate-passed retroactive immunity from lawsuits for private telecommunications firms asked to eavesdrop by the government. The nation's torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.

The recess by House Democrats amounts to a judgment that losing the generous support of trial lawyers, the Democratic Party's most important financial base, is more dangerous than losing the anti-terrorist issue to Republicans. Dozens of lawsuits have been filed against the phone companies for giving personal information to intelligence agencies without a warrant. Adm. Mike McConnell, the nonpartisan director of national intelligence, says delay in congressional action deters cooperation in detecting terrorism.

Novak does note that there was a sizable minority of House Democrats who supported the Senate-passed revision of FISA authority, which included immunity for the telecommunications companies.

UPDATE (12:30 p.m.) More from The Examiner's editorial page, which detects two reasons for House leadership's decision to allow the authority to expire: "first, to please the class-action lawyers and left-wing activists who provide so much campaign cash and energy to liberal incumbents, and second, to hold the telecoms hostage to a wider political battle against the administration’s anti-terrorism policies. In so doing, though, they also hold hostage a key element in our defenses against terrorists seeking to murder Americans."

Posted by Carter Wood at 10:17 AM | 1 comment; click here to read it or submit your own! | Send to a Friend

February 17, 2008

Intelligence Director McConnell and FISA

In warning against the consequences of letting surveillance authority lapse, President Bush has relied on the advice of non-partisan, career law enforcement and intelligence professionals. Are we to dismiss Director of National Intelligence Mike McConnell as a partisan hack?

From Fox News Sunday, an interview of McConnell by Chris Wallace:

[WALLACE] House Majority Leader Steny Hoyer says, "The president's comments are wrong, divisive and nothing but fear-mongering." Senator Ted Kennedy says, "The DNI's," that's you, "The DNI's latest comments show yet again the shamelessness of the administration's tactics."

Question: Is the White House making the situation sound worse than it really is?

MCCONNELL: Chris, President Bush is repeating advice that I'm giving him. As you know, I am not a political figure. I am a professional. I've been doing this for 40 years.

And our situation now, when the terrorist threat is increasing because they've achieved — Al Qaeda's achieved de facto safe haven in the border area of Pakistan and Afghanistan — the threat is going up.

And therefore, we do not have the agility and the speed that we had before to be able to move and try to capture their communications to thwart their planning.

McConnell also stressed that the lapsed surveillance authority Saturday puts intelligence gathering at risk because there is currently no retroactive immunity for the telecommunications carriers.

Posted by Carter Wood at 4:14 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

February 16, 2008

President's Radio Address on FISA

From the President's weekly radio address:

For six months, I urged Congress to take action to ensure this dangerous situation did not come to pass. I even signed a two-week extension of the existing law, because members of Congress said they would use that time to work out their differences. The Senate used this time productively -- and passed a good bill with a strong, bipartisan super-majority of 68 votes. Republicans and Democrats came together on legislation to ensure that we could effectively monitor those seeking to harm our people. And they voted to provide fair and just liability protection for companies that assisted in efforts to protect America after the attacks of 9/11.

The Senate sent this bill to the House for its approval. It was clear that if given a vote, the bill would have passed the House with a bipartisan majority. I made every effort to work with the House to secure passage of this law. I even offered to delay my trip to Africa if we could come together and enact a good bill. But House leaders refused to let the bill come to a vote. Instead, the House held partisan votes that do nothing to keep our country safer. House leaders chose politics over protecting the country -- and our country is at greater risk as a result.

Posted by Carter Wood at 10:20 AM | 1 comment; click here to read it or submit your own! | Send to a Friend

FISA Reality

Wish Andrew McCarthy would have written this column earlier. McCarthy, who directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies, lays out in detail the legal and practical problems that will undermine U.S. surveillance of FOREIGN plotters once the current Protect America Act expires.

Drop for a moment the issue of telecom immunity, which we focus on here out of a belief that companies that act in good faith to help prevent terrorist attacks should not be punished for such help. Consider just the issue of foreign surveillance of evil people who want to blow up Americans. That's not fear-mongering, that's reality.

From McCarthy's "When the Clock Strikes Midnight, We Will Be Significantly Less Safe":

The whole reason Congress enacted the PAA in the first place is because FISA was never meant to apply to foreigners outside the U.S. communicating with other foreigners outside the U.S. We are not supposed to need court authorization for that. We are not supposed to have to write affidavits, approved by the attorney general and others, demonstrating probable cause that such people are agents of foreign powers — as well as demonstrating that other alternative investigative techniques would not yield the same intelligence.

Those are protections afforded by the FISA statute. Foreigners outside the U.S. are supposed to be outside the protection of the FISA statute, just as they are outside the protection of the Constitution. Saying the government can go to the FISA court is no answer: Government is not supposed to have to go to the FISA court. These people are not supposed to have FISA rights. They are not supposed to have Fourth Amendment rights.

We are talking about thousands upon thousands of communications, totally outside the U.S. (in the sense that no person inside our country is a participant) which the intelligence community used to be able to intercept and sift through without any burdensome judicial procedures whatsoever. That is how FISA was written, and that is how FISA was understood for almost 30 years. Then last year, a secret FISA-court ruling attempted to bring all those communications under FISA-court control — apparently on the theory that, because some digital bits of these conversations may zoom through U.S. hubs in global telecommunications networks, somehow a conversation between a guy in Pakistan and a guy in Afghanistan should now be considered a U.S. wire communication.

Thank you, Andy. Opponents of legitimate foreign surveillance raise this specter of millions of domestic phone calls and communications being monitored by an evil conspiracy of neo-cons and spooks, with corrupt telecoms bowing to their masters' demands. It's just garbage, dangerous garbage.

Also: "Does Congress Realize We're at War?"

Posted by Carter Wood at 10:15 AM | Click here to comment | Send to a Friend

Fact, Fiction and Flat-Out FISA Falsehoods

The White House posted an excellent, point-by-point rebuttal to the falsehoods being shopped by those whose want to sue telecommunications companies as a way to attack the Administration's national security policies. Here's entry one of five:

MYTH: The future security of our country does not depend on whether Congress provides liability protection for companies being sued for billions of dollars only because they are believed to have assisted the Government in defending America after the 9/11 attacks.

FACT: Without the retroactive liability protection provided in the bipartisan Senate bill, we may not be able to secure the private sector's cooperation with current and future intelligence efforts critical to our national security.
FACT: Senior intelligence leaders have repeatedly testified that providing retroactive liability protection is critical to carrying out their mission of protecting our homeland.

Director of National Intelligence Mike McConnell: "Lack of liability protection would make it much more difficult to obtain the future cooperation of the private-sector partners whose help is so vital to our success." (Select Committee On Intelligence, Hearing, U.S. Senate, 2/5/08)

FBI Director Robert Mueller: "[I]n protecting the homeland … it's absolutely essential we have the support, willing support of communication carriers. … My concern is that if we do not have this immunity, we will not have that willing support of the communication carriers." (Select Committee On Intelligence, Hearing, U.S. Senate, 2/5/08)

CIA Director Michael Hayden: "These are very fragile relationships. We lost industrial cooperation, at CIA, with partners on the mere revelation of the SWIFT program in public discourse." (Select Committee On Intelligence, U.S. Senate, Hearing, 2/5/08)

FACT: According to the Director of National Intelligence, "we are experiencing significant difficulties in working with the private sector today because of the continued failure to address this issue." (Mike McConnell, Op-Ed, "A Key Gap In Fighting Terrorism," The Washington Post, 2/15/08)

Posted by Carter Wood at 9:59 AM | 8 comments; click here to read them or submit your own! | Send to a Friend

February 15, 2008

FISA: This is Why They Want to Sue

A revealing commentary today from mcjoan, the primary Daily Kos blogger on the Foreign Intelligence Surveillance Act. In "FISA Fight: How predictable was this? " mcjoan writes about civil immunity for the telecommunications companies:

"[Remember,] it's not just so that AT&T and Verison aren't held accountable. It's to prevent legal action going forward that, in the discovery process, would expose the full extent of the administration's illegal activity. This isn't just protecting AT&T and Verizon. It's protecting the Rove/Gonzales/Cheney/Bush cabal.

Don't forget to pronounce the word "cabal" with that extra fleck of spittle.

In any case, mcjoan's comments reveal the politics of those who oppose S. 2248 and telecom immunity. To them, the purpose of the 40 lawsuits against the telecommunications companies is to punish the "cabal" for conducting surveillance of America's enemies. When the left cannot achieve its policy goals through the policymaking branch of government -- Congress -- it turns to the courts and whatever target serves its purpose. Today, it's the telecommunications companies. Tomorrow, it's whatever other member of the private sector is deemed the cabal's running dog lackey.

UPDATE (5:05 p.m.): From the National Journal's The Gate:

Senate Minority Leader Mitch McConnell, R-Ky., said Republicans would talk up the issue in their home states during next week's recess. "I think this will be the biggest story through the recess," McConnell said. He accused Democrats of being in bed with attorneys who are among their biggest contributors. "We think it's a lot more urgent to protect the country than it is to protect the trial bar," he said.

Posted by Carter Wood at 3:47 PM | 1 comment; click here to read it or submit your own! | Send to a Friend

Sen. Jay Rockefeller on Lapsed Surveillance

From the Senate floor, February 14, Sen. Jay Rockefeller, Chairman of the Senate Intelligence Committee:

What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded. It is already going to be degraded as telecommunications companies lose interest. Everybody tosses that around and says: Well, what do you mean? I say: Well, what are they making out of this? What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this? They get $40 billion worth of suits, grief, trashing, but they do it. But they don't have to do it, because they do have shareholders to respond to, to answer to. There is going to be a degrading of the nature of our intelligence in some very crucial areas if we follow the path that the minority leader is suggesting, because we will go right back to where we were last August, and that will be a further jolt to the telecommunications companies, because they will understand that you cannot count on the Congress, you cannot count on us to make policy which will give stability to their--not government agencies but to their corporations.

Posted by Carter Wood at 11:50 AM |