AIPAC

Parsing Goss's Role In The Harman Story

Zachary Roth | May 5, 2009, 12:37PM

It's worth trying to clear up some of the confusion on a key point that came out of yesterday's post.

We wrote that, after reading the transcript of Jane Harman's wiretapped conversation with the suspected Israeli agent, then-CIA director Porter Goss signed off on the Justice Department's application for a FISA warrant to wiretap Harman herself.

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Topics: AIPAC, CIA, FBI, FISA, Jane Harman, Justice Department, Porter Goss, Wiretapping

George Bush

UPDATED: Court: Bush Can Eavesdrop Without Warrant

Zachary Roth | January 15, 2009, 1:53PM

In its waning days, the Bush administration has suffered a few adverse rulings from the courts on the broad issue of executive power.

But it looks like it's about to get a major one in its favor on the issue of warrantless wiretapping. The New York Times reports:

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans' private communications may be involved.

In other words, at least according to this court, the administration didn't need to get a warrant after all for its controversial domestic spying program. As the Times puts it, the decision "may offer legal credence to the Bush administration's repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping."

The Times explains that the court did not directly rule on the legality of the NSA's controversial secret wiretapping program, conducted between 2001 and 2007, which the same paper first revealed in 2005. Rather, in 2007, Congress passed the Protect America Act, which gave the executive branch the power to listen in on international communications. The constitutionality of that law was challenged by a telecom company. The FISA court, in a secret decision last year, upheld the law, and now an appeals court has agreed.

All the same, this is the first time that an appeals court has ruled on the constitutionality of the president's power to eavesdrop, and the decision could be a boost for other telecom companies who are being sued for cooperating with the program.

Late Update: The ruling itself has now been released, and several commentators, including Salon's Glenn Greenwald, make the case that the Times erred in its characterization, and that the ruling bears on a narrower question. Writes Greenwald:

[I]t merely concluded that the warrantless eavedsdropping powers authorized by Congress under the (now-expired) Protect America Act do not violate the Fourth Amendment because, the court found, there is an exception to the Fourth Amendment's warrant requirement for foreign intelligence gathering. It's a bad ruling (and should be reviewed by the Supreme Court), but it has nothing to do with the President's authority to override statutes generally or violate FISA specifically...

So this ruling may not be as far-reaching as the Times appeared to suggest.

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Topics: FISA, George Bush, Wiretapping

Michael Mukasey

Mukasey Names New Chief of Staff

Kate Klonick | August 6, 2008, 1:26PM

Attorney General Michael Mukasey has appointed Brian Benczkowski to serve as his chief of staff, replacing Brett Gerry the Justice Department announced today:

Benczkowski, 38, currently serves as chief of staff to Deputy Attorney General Mark Filip.

[He] will succeed Brett Gerry, who will be leaving the Department after more than four years in the Executive Branch, and who has served as the Attorney General's chief of staff since his confirmation.

. . . "I am happy that Brian Benczkowski has agreed to serve as my chief of staff," Attorney General Mukasey said. "Brian has been one of my closest advisers in the Department since my confirmation process, and his exceptional judgment and extensive experience in the Department will be of great value to me and to the Department in the upcoming months."

Regular TPMmuckraker readers might remember Benczkowski as a mouthpiece for the DOJ on the ambiguity of torture and the word "exclusive" as it pertains to FISA.

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Topics: FISA, Justice Department, Michael Mukasey, Torture

FISA

Bush Administration Wants To Block ACLU From Wiretapping Law Litigation

Andrew Tilghman | July 30, 2008, 3:50PM

Should federal judges interpreting the new U.S. wiretapping law be able to hear and consider legal arguments from outside parties like the American Civil Liberties Union?

The Bush administration says no.

The Department of Justice filed court papers yesterday seeking to block the ACLU -- and any other third party -- from submitting briefs to the Foreign Intelligence Surveillance Court, the classified forums that will be primarily responsible for translating the federal law signed last month into practice.

The DOJ argues that any briefs the ACLU might file would be ill-informed because its lawyers cannot access the classified information at the heart of many FISA cases, and the proceedings would just clog the flow of cases

"The collective effect of these restrictions is to make any meaningful participation by the ACLU...impossible. ... Indeed, allowing third-parties to use this Court as a general forum to present facial challenges to the Government's surveillance activities could cause a flood of litigation that would district this Court from its important national security functions."

But the ACLU, which has filed a lawsuit seeking access to the FISA court, says the new law is public and complex and the judges should be able to consider a wide range of views when handing down important rulings. Jameel Jaffer of the ACLU's National Security Project said in a statement today:

"If the government's request is granted, the court won't hear arguments from anyone except the government and those arguments will be presented to the court in secret briefs. ... Especially because the new surveillance law departs so significantly from the standards that have applied to government surveillance for the last 30 years, any proceedings relating to the new law's constitutionality should be adversarial and as informed and transparent as possible."

Peter Swire, a law professor at Ohio State University and senior fellow at the Center for American Progress, supports the ACLU's position. He wrote a paper in 2004 calling for greater participation in the FISA court.

"The DOJ is taking an expansive view of executive power and narrow view of judicial power, Swire told TPMmuckraker in an interview today. "Under the government's view, the judges seem required to uphold an unconstitutional system because the judges are forbidden from getting briefing from anyone other than the executive branch."

While there is limited precedent for third-party involvement in the typically classified proceedings under the 1978 FISA law, the new technologies that prompted lawmakers to updat the law law may also warrant new procedures, Swire said.

"The 1978 version of FISA targeted one individual at a time or sometime one terrorist organization. The new approach sweeps far more broadly and it looks more like an administrative system than a traditional judicial wiretap order."

"In light of those changes and the constitutional challenges to those changes, the court would be well served to be briefed with multiple viewpoints," Swire said.

The DOJ argues that the ACLU already has an opportunity to contest the constitutionality of the FISA law a lawsuit currently pending in New York's Southern District.

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Topics: FISA, Michael Mukasey

FISA

Senate OK's New Wiretapping Law

Andrew Tilghman | July 9, 2008, 3:07PM

The Senate overwhelmingly approved a new federal wiretapping law this afternoon by a vote of 69-28.

After last month's approval of a similar measure in the House, today's vote essentially clears the way for the bill to go to the White House for a final signature.

The bill approved includes sweeping and retroactive immunity for telecom companies that provided information about customers to government officials without a warrant as part of the Bush Administration's surveillance program imposed after September 11, 2001.

The vote was all but assured after the senators struck down three key amendments this morning that would have overhauled the spying laws without granting immunity to the telecom companies.

Sen Barack Obama (D-IL) voted for the bill.

Moments before the final vote, a handful of senators voted to filibuster the vote, including Sens. Hillary Clinton of New York, Russ Feingold of Wisconsin, Patrick Leahy of Vermont, and Tom Harkin of Iowa.

So what does that mean? It means that the nations largest telecom companies no longer have to worry about a batch of multi-million lawsuits filed by customers angered that the companies turned over their personal information to the government without a warrant.

It also means that if you are at home making an overseas phone call to a suspected terrorist, the government can monitor that call without a warrant.

And it's not clear how intel agents define who is a suspected terrorist.

Late Update: This post has been revised from its original version to correct the reporting of Hillary Clinton's vote on the motion for cloture.

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Topics: FISA, Surveillance

FISA

Final FISA Amendment Fails

Andrew Tilghman | July 9, 2008, 1:00PM

The Senate defeated the final -- and least-divisive -- of three amendments to the new federal wiretapping bill it's considering today.

It was closer than the other two votes today -- this one shot down 56-42. Rules required 60 votes to approve the amendment.

The third and final amendment called for Congress to wait until after reviewing a pending inspector general's report about the White House's surveillance program before determining whether to grant immunity to telecom companies. It was sponsored by Jeff Bingaman (D-NM).

The defeat of those amendments all but guarantees that the broader FISA law will pass when the Senate takes it up, probably later this afternoon.

The senators broke for lunch.

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Topics: FISA, Surveillance

FISA

Democratic Support For Blocking FISA Provisions Falls Short

Andrew Tilghman | July 9, 2008, 12:41PM

An amendment calling for federal courts to review whether telecom companies should get retroactive immunity was defeated in the Senate this afternoon.

The bill sponsored by Sen. Arlen Specter (R-PA) was knocked down by a vote of 61-37.

The main bill would grant sweeping retroactive immunity for telecom companies that provided information to the government about their customers without a warrant.

This amendment would have limited retroactive immunity to instances in which a federal court determines the assistance was provided in connection with an intelligence activity that was constitutional.

Many prominent Democrats voted in favor of the amendment, including Sens. Barack Obama and Hillary Clinton.

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Topics: FISA, Surveillance

FISA

Senate Defeats Effort To Strip Wiretapping Law Of Immunity For Telecoms

Andrew Tilghman | July 9, 2008, 12:18PM

An amendment sponsored by hold-out Democrats and designed to strip the Senate's wiretapping bill of legal immunity for telecom companies was defeated today with a 66-32 vote.

The amendment, sponsored by Sen. Chris Dodd (D-CT) and Sen. Russell Feingold (D-WI), is the first of three the Senate is voting on today dealing with the immunity provisions in the Foreign Intelligence Surveillance Act law.

Without any amendments, the law will effectively end a stack of lawsuits filed against telecom companies that provided information about customers to the government without warrants as part of the White House's surveillance programs after September 11, 2001.

The Senate is wrapping up debate on the FISA law and its proposed amendments today and a vote on the overall law is expected later today.

A bill with similar immunity passed in the House last month and is expected to be signed into law by the president.

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Topics: FISA, FISA

FISA

Senate Defeats Effort To Strip Wiretapping Law Of Immunity For Telecoms

Andrew Tilghman | July 9, 2008, 12:18PM

An amendment sponsored by hold-out Democrats and designed to strip the Senate's wiretapping bill of legal immunity for telecom companies was defeated today with a 66-32 vote.

The amendment, sponsored by Sen. Chris Dodd (D-CT) and Sen. Russell Feingold (D-WI), is the first of three the Senate is voting on today dealing with the immunity provisions in the Foreign Intelligence Surveillance Act law.

Without any amendments, the law will effectively end a stack of lawsuits filed against telecom companies that provided information about customers to the government without warrants as part of the White House's surveillance programs after September 11, 2001.

The Senate is wrapping up debate on the FISA law and its proposed amendments today and a vote on the overall law is expected later today.

A bill with similar immunity passed in the House last month and is expected to be signed into law by the president.

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Topics: FISA, FISA

Michael Mukasey

Mukasey to Testify Today; Senate to Vote on FISA

Kate Klonick | July 9, 2008, 9:31AM

The Attorney General is headed to the Hill to testify this morning in front of the Senate Judiciary Committee on oversight of the Justice Department. It starts at 9:30 ET, with a break for the FISA vote at 11:15. We'll be watching and posting developments on both so stay tuned for more.

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Topics: FISA, Michael Mukasey, Senate Judiciary Committee, U.S. Attorneys

FISA

Today's Must Read

Andrew Tilghman | July 8, 2008, 9:32AM

With all the talk about the new wiretapping law the Senate is expected to approve this week, there are many federal surveillance programs that are going largely unmentioned -- and unmonitored.

A story from the Baltimore Sun points out how limited the proposed FISA legislation is when considered against the whole alphabet soup of surveillance programs run by the federal government.

Although the latest FISA proposal includes numerous provisions for a secret court to monitor and authorize surveillance, and for inspectors general to keep tabs on who's being monitored by various agencies, little oversight exists for surveillance programs that fall outside FISA scrutiny.

For example, the new law will limit whether a CIA transcript of a conversation between a alleged terrorist and his relative in the United States could be shared with other spy agencies and analysts.

But it would have little control over whether, say, the Department of Homeland Security can share wiretaps or satellite surveillance with local law enforcement officials.

Lawmakers on Capitol Hill have requested information about these other surveillance programs, but many agencies are often reluctant to comply, citing security or secrecy concerns, the Sun reports:

Even when Congress has received information, lawmakers say their questions or concerns are often addressed within the agency that is responsible for the surveillance, amounting to a practice of self-policing.

"You don't have to look far into history to know that when the government, any government, is given secret authorities, that those authorities are ultimately abused," said Mike German, a former FBI agent who is now policy counsel for the American Civil Liberties Union. "You don't even have to attribute bad motives to anyone. In an intelligence officer's zeal to protect the country, they often will overstep their bounds."

In response to concerns, the Department of Homeland Security has created a privacy czar to see that federal agencies do not infringe on privacy laws or violate civil liberties. But some suggest that should be a Cabinet-level post in the executive branch since new technologies are constantly creating new questions and concerns.

"We should have what Canada has, which is a minister of privacy, someone looking out for the privacy issues of Americans," said James Bamford, an intelligence expert and author on two books about the history of the NSA. "We have armies of people out there trying to pick into everyone's private life, but we have nobody out there who's an advocate."

Meanwhile, the Wall Street Journal reports today about concerns that non-government surveillance is being abused for advertising purposes.

Wednesday, the Senate Commerce, Science and Transportation Committee plans a hearing on the privacy issues raised by online advertising. Critics, meanwhile, are questioning whether the practices used by NebuAd and other ad-targeting companies violate wiretap laws, which prevent carriers from monitoring customer communications.

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Topics: FISA, Surveillance

FISA

NEW FISA LAW PASSED

Andrew Tilghman | June 20, 2008, 12:53PM

No surprises. The House has passed a new federal surveillance law. It's expected to go to the Senate next week and on to the President for a signature.

The final vote was 293 for, 129 against.

A big win for AT&T and Verizon.

Meanwhile, the House Judiciary Committee is getting underway again with the Scott McClellan hearing.

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Topics: FISA