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FISA Court to Gov't: Why Shouldn't We Disclose Surveillance Rulings?

Don't get your hopes up yet. But the Foreign Intelligence Surveillance Court has told the government that it needs to submit an argument for why the court shouldn't disclose rulings from earlier this year on the warrantless surveillance program that prompted the Bush administration to gut the Foreign Intelligence Surveillance Act.

Ten days ago, the ACLU filed a motion with the secret court seeking the release of two contentious rulings in particular: a January 10 ruling that Alberto Gonzales described as "innovative" enough as to allow the surveillance program to be placed under FISA; and the ruling from the spring that led to the wholesale FISA revision. In a conference call today, Jameel Jaffer of the ACLU disclosed that around lunchtime, the court, in response to the ACLU's "unprecedented request," asked the government to file any objections it has to a disclosure by August 31. Jaffer cautioned the court action doesn't herald actual disclosure, but it shows that the court is taking the ACLU's request seriously.

The workings of the FISA Court have been a black box in the entire affair. It remains hard to understand how the court could be so "innovative" in January with regard to the Terrorist Surveillance Program but so restrictive in the spring. The court's notice today brings us a step closer to finding out how much revision to FISA was really warranted.


26 Comments

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I love that ACLU!

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It is up to the judges in this nation to see to it that our constitution quits getting trampled on.

Congress is in their "I'll give you just 700 more chances to comply then I'll write another letter" mode.

And Bush apointed judges are doing their, "whatever you say George" routine... God help this nation if the Judiciary bends over like they have been known to...

We have laws, enforce them and quit taking the commands of liars to bypass the law when ever they scream 9/11, 9/11, terrorism.....

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Let me guess the gist of the gov't's response: "National security, bitches, so STFU"

I'm quite sure that even if the court decides to release it, Bush'll find a way to block it anyway.

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Cheney would say that simply because the FISA court would entertain the motion in any way just aids the terrorist cause.
This silly shit of "disclosing" surveillance "techniques" to "the terrorists" is staggering. Nobody seems to be kidding. Are we supposed to believe that paranoid plotters don't have much of an imagination and they couldn't dream of the clever ways in which they might be spied upon.!?!

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The Bush Admin has certainly been gung ho when the release was in their favor - In re Sealed Case, the only FISA appellate decision, which went their way - sure hit the bookstands.

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This is what the founders held as an independent justice system---remember the fictional quote in the movie Amistad when the girl queen complained to the US President that the he had to get his judges in line---For better or worse I hold collectively that judges find a way to hold absolute the independence of their branch of government and role. Regardless of the Scalia scourge in the Federalist Society I have personally known judges of all color, party and perspective, Federal Circuit & Appellate, State Supreme, Appellate and Circuit and most come to bench with a reverence for the law.

FISA in this action has found a way to begin disciplining the Administration for manipulation and are threatening to open a few doors a crack.

My thinking is that they are aware how Gonzales and the WH have used and manipulated the secrecy mechanism to lie and perjure themselves for political purposes outside the law. These judges have a social network too, and when they talk in hypothetical terms among themselves or in small personal friends they know what is right and wrong for the sake of the law.

By forcing the AG to submit a brief as to why the rulings must remain secret they are going to expose the same reasoning why the AG held to keep the SF spying surveillance secret (state secrets) but that is not good enough.

I see this house of cards falling fast mark these words...the security code is always appropos.

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Bill of Rights: Who knew?!

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I'm guessing this "selective disclosure" by Bush/Cheney has come back to bite them when Boehner disclosed the nature of the FISA court's ruling this spring. My guess is that Cheney declassified that and had Boehner use it in the debate. So now the FISA court says what's good for the goose is good for the gander.

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RWN @ 6:36
I think you are right on with this.

I believe it was a FISC judge that forced the DOJ to certify the program(s) which is what caused the panic and the late night visit to Ashcrofts hospital bed.

I would be interesting to watch the fleas scratch the dog for a change.

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Please don't call the administration "the government" and imply that the FISA Court is "not government." The Vice-President may think the FISA Court is a tiresome mosquito buzzing around his Mighty-Power-and-Imperial-Authority, but no one should help him out.

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Anyone notice how TPM doesn't allow any anonymous comments any more under the latest headlines they have on their site? I can't believe that the great J.M. Marshall is muting people's voices on his forum. Bravo! And I thought he was a "fair and balanced" man. I guess I was wrong. The only place left to put up your comments now is the DailyKos. Thank you Mr. Marshall!

sc: desire as in Mr. Marshall I desire the voice that you stole from me back

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just checking...
seems to be working for me... You might want to try again, Yossarian...

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There's a diary over on dailykos right now with a copy of an extensive complaint filed against Gonzales with the Texas Bar.

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There is a diary up right now on dailykos with a copy of a complaint against Gonzales filed with the Texas Bar.

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My name is dick cheney but my comment won't post because I used the moniker ANONYMOUS. Damn that Marshall. Oops, it posted, then, a big juicy kiss on the forehead for Josh.

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My name is dick cheney but my comment won't post because I used the moniker ANONYMOUS. Damn that Marshall. Oops, it posted, then, a big juicy kiss on the forehead for Josh.

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Hold them accountable. If the Republicans wish to play partisan politics and defend these criminal acts, let them pay for it in the next election. Let them try and defend these illegal actions. There is a constitutional requirement in cases where the President and others refuse to follow the laws passed by Congress and blatantly disobey our Constitution. It's called impeachment. The times call for it. The people deserve it. The Congress should do its job. If the Republicans take the side of the criminals, let them pay at the polls. It is more important than any other issue - including the war in Iraq.

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Just to toss out an idea:

I wonder if the problem with the TSP isn't that it involved "Data-mining" of phone logs, but rather that access to the program was made available to Karl Rove and Dick Cheney?

It's one thing, from the standpoint of morality and public opinion, to look at the networks of people who speak with Al Quaida, and see if there are people who are worth actively surveiling.

It's another thing to look at the networks of people who speak with major Democratic donors, and get an advance look at the 2004 presidential playing field. Or even of nosy reporters or US Attorneys.

Whether the first *is* legal or constitutional is an open question... but my hunch is that post 9/11, both courts and Congress would go along with #1.

#2, however, would be very appealing to the Watergate crew now in the White House. And all that separates #1 and #2 is the sort of careful compartmentalization between executive and political wings of the government that the Rove gang has actively torn down in every other area.

Remember those 700 points of contact between the White House and the Justice Dept? My bet is that the TSP enabled the White House to suggest numbers for datamining and reporting.

Meanwhile, nosy reportes could always be leaked complicated classified examples of #1.

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Any thought to the idea: "third party data capture" = wiki IP data?

In the wiki summary logs now published, check the Washington Post-listed IP numbers posted for the White House. As an example, then, in 2005, look for the CIA-related updates in the special division; the White House personnel appear, based on the Wiki-IP data, to have received some specific briefing related to the CIA special projects near those dates in December 2005; or they accessed a specific document. Each disclosure by WH-EOP related to any issue is a key word you can enter into the RNC e-mails; if there are gaps, then you have to ask: Why are they searching for things "indepedently"? The answer relates to the other communcation going on inside EOP-NSA: They have non-official IM-systems which you have not been specifically made aware or requested. It's an error to only focuse on the RNC e-mails to fill in the gaps for the EOP-WH communcations on the US Atty firings.

As to the third party data cature, do not focus only on the White House EOP numbers listed; but do the opposite: Scan up and down that particular wiki-change-history-log for the other EOP IP numbers; you will see patterns/groups of changes for a particular IP-data block; then check your open source information in the search engines to see which other sites these EOP-related IP numbers were visiting. Don't rely only on the software-generated products, but go into the wiki yourself and get a feel for the history logs, and IP-neighbors.

One thing to do is look at the wiki-listed EOP IPs, then use those IP-neighbors for searches in teh open source search engies. You'll see how there are other patterns at the macro and micro levels: One is celestial, the other is biological. These are only analogies to help you see the pattern: It's connected like a molecule or star cluster; the same IP-data appears; the key will be to use the models to organize the data for the Grand Jury.

Once you link the academic websites with the EOP, you will be able to see which secific files at that university they were looking at. In the case of the cryptography, one interesting pattern is to see the common IP-updates on the wiki of intelligence community contractors linked to the technology/HUMINT resources [Ex: Ft. Huachuka; and the pilotless drones]. Once you dig into the contractor-linked IP data on the wiki, you'll see that those contractors -- when they visit the same sites as CIA and EOP -- have looked at specific key words in academic papers which related to the NSA cryptography. Using those key words from the search engine-provided papers, you can then review who made updates to _those_ wikis; and branch out into the NSA contractors: Who was doing what; and which Boards of directors at thos NSA contractors have a problem: Staff working/getting paid to work on US govt contractors, but either leaking sensitive information, or using contractor resources for non-official purposes. However, recall the DOD IG special investigation units have also been making wiki updates, so they are "tainted". That's why the public needs to do the analysis, forward their finding to the States/Grand Jury, and cannot rely on government investigators to report findings.

The posted information seems overwhelming is that it's not summary information of any public news, but something else: Summary reports of the third party data capture analysis between open source, wiki, and the disclosed information. The public information -- for now -- isn't making sense because you're trying to "Understand it" from the persective of what's been disclosed in the news, not what's been disclosed in the search engines and wikis. You have yet to look -- in detail -- at the wiki information and the open source IP-connected data attached to that IP number. The commentaries outline the emerging lines of evidence emerging on the wiki-IP-search engine data; combined with a commentary on how the current spin was attempting to mislead the public. It was hoped that eventually, if needed, there would be a record of what was known; and if needed, there was a method to organize regardless the results. Each of you has a small piece of inforamtion to, if needed, lead a lawful defense of the Constitution. You'll learn more about this later, and the others involved. Try to think simple: Start with the obvious organization elements for the information; and then use that structure to start having the evidence like decorations on a seasonal item.

The monitoring of the wiki-IP data isn't something that's just started, but has been going on for years. The wiki is like WWII ULTRA: Take a look at the battle of Coventry when Churchill knew -- through ULTRA -- what was going to happen, but couldn't say anything because that would reveal ULTRA. This is one reason why wiki wasn't specifically mentioned until now in the context of third party data capture; or the method of pinpointing specific US government-disclosed information ["internal leaks"]: The President would have been alerted to this, change his legal positions before the FISA Court, and in the NSA litigation. Going forward, he'll have to cotradict himself. The wiki-related information was used to trace the connection between the DOJ Staff counsel and the intelligence community meetings in the DC Area; and the DOJ Staff access is related to information disclosed to DoJ Staff that they were not aware was being monitored. Their actions -- as recorded in the DOJ STaff IT area -- was timed to prompt specific discrete actions that they would disclose publicly; that public action is linked with internal communications the President and AG thought would never be disclosed. Now that they acted, and left evidence, it's possible to review the records to determine what they were reading; who they forwarded it to; and what prompted their combined visits and actions. The DOJ-EOP Staff, because of this overwhelming evidence, cannot easily endure a cross-examination or an interrogation on these issues. Note they'll invoke the very "rights" they say Americans are not entitled to assert.

Saying "third party data capture" -- as opposed to wiki -- has been a way of communicating to some the wiki-related information; and that would give them lead time to store records, continue monitoring, and blindside the CIA, DOJ, and EOP. Sorry couldn't be more specific. You one day will learn the methods by which the IP-connected data from EOP, DOJ, NSA, and CIA were captured; how it's known who inside the US government is reading this site; and how this was coordinated without the NSA and President being alerted.

Now that the wiki-related IP information has been disclosed, organized, and is easily searchable by organization, I encourage you to re-read the information provided to you on TPM: You will see how things have been presented with the intent that you see that there was something there; give you a means to digest it and find it; but delay providing direct information to the US government so they would adjust their open leaks. Recall, the wiki's accuracy isn't the issue: Once that wiki-related information is connected with the US government IP, the issue is two fold: Either the information is official and amounts to a leak, breaching executive privilege; or it's not official information and that IP-number-data at the wiki is evidence that that particular US government personnel was involved with non-official use of government computers.

The delay was intended to give you time to digest some of the majority of the information. Think in terms of a railroad track -- there are two different rails. You've seen part of the rails; and part of the cross-ties; your job will be to accept that there are other people with other parts that are going to be meeting with you. They have also been prepared and have been working on other portions. You're not alone on this.

This has been done to ensure the NSA and WH were not aware of the many different groups involved with the analysis; and preparation for the grand jury. There are leaks by Congress and EOP to personnel attempting to mislead the Grand Jury. One day, as with Ultra and Coventry, you'll be given the bigger picture. Check the most recent entry on war crimes; review the process to consolidate the war crimes information using the third party data capture; and understand the issue isn't FISA, EOP, or Congress: It's law firms and legal counsel connected with war crimes planning; and contractor involvement with that planning, coverup, and coordination. There is no statute of limitations for war crimes. Prepare to support the Grand Jury as they turn their attention to the third party data capture -- not juston the wiki -- but in other locations. Yes, there's more. Please discuss the evidence with your State Attorney General and their Staff. Good luck. The common element: Allegations of war crimes and unlawful conduct in breach of the US Costitution, FISA, and Geneva Conventions. Nothing more complacted than that. This was coordinated using methods the NSA have been unable to detect; many were involved. Their oath is to one thing: The US Constitution. Nothing else, no higher loyality. This was done for you. Others chose something else. The Grand Jury and others will decide whether their actions warrant adjudication for war crimes, oath of office violations, malfeasance, or other allegations related to sedition, rebellion, and insurrection against the United States and US Constitution. Best wishes. The rule of law shall prevail.

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Could someone please translate the above post into plain English. I gather that some sort of information has been compiled for presentation to a grand jury, but exactly what eludes me. I can't tell if the poster is a nutjob or a genius.

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Could someone please translate the above post into plain English. I gather that some sort of information has been compiled for presentation to a grand jury, but exactly what eludes me. I can't tell if the poster is a nutjob or a genius.

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Anon:August 19th ,2007 7:07 PM
I believe I understood the gist of what you were reporting ie -that there is some kind of forensic footprint related to wiki entries etc that showws the NEO CONs conspired to takes us to war illegally & that there is internet evidence that war crimes & other high crimes have been committed in our name . If this is true , what can we as average God fearing & Costitution defending Americans do to further expose these criminal elements in our Federal Government ?
You mention several times the Grand Jury -and our need to support it . Could you please explain further how we can support that Grand Jury.
Furthermore you stated we must support the State Grand Juries and their efforts. We have an active county prosecutor here in Austin, Texas - his name is Ronnie Earl .Currently Prosecutor Earl is pursuiing EX Cong Tom DeLay regarding money laundering campaign contributions for the the dirty tricks perpetrated by the GOP in recent elections. Mr Earl would be a very good local official to have involved in any grass roots efforts to go after federal officials/politicians that have violated their constitutional obligations .If there is any part of the "wiki railroad track "that you all can give Mr Earl & the Travis County grand jury to begin a criminal investigation down here -I am certain if your evidence is actionable it would be given a place on the grand jury schedule.
I am praying anon 19th Aug that your post is not some attempt to diassmeble & divert us from our collective task at hand -which is to restore the checks & balances in our federal government.
We are very weary ,but also very wary , of how badly the Bush Administration has subverted our Constitution .For the moment I will assume that you all have the goods on BushcO- (having seen the pictures of Abu Gharib I am sure torture & other war crimes have been committed in our collective name) OK so you have the evidence to show cause to go after the NEOCONS seeking indictments and other remedies -how do we help you ? We are ready to help you - how do we ?

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http://www.tpmcafe.com/blog/therap/2007/jul/31/project_for_constitutional_compliance#comment-281728

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress.

The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

At the Justice Department session, critics of the legislation also complained to administration officials about the diminished role of the FISA court, which is limited to determining whether the procedures set up by the executive administration for intercepting foreign intelligence are “clearly erroneous” or not.

That limitation sets a high bar to set off any court intervention, argued Marc Rotenberg, executive director of the Electronic Privacy Information Center, who also attended the Justice Department meeting.

“You’ve turned the court into a spectator,” Mr. Rotenberg

said.http://www.nytimes.com/

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I am beyond depressed. I never thought that the Democratic Party would be so weak that they could not fight the destruction of our Constitution and our country. It is close to hopelessness.

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Anon, Is there "hope?"

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Is "Hope" involved?

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