Obama’s Judgment on FISA

[On the Road]

When you hear Obama discussing FISA, what stands out is that he has a very different take on the bill from most DU posters.

It is mystifying to me that such a large majority here are willing to conclude that our Harvard-Law-School candidate has either been duped or abandoned his principles on the basis of second- and third-hand remarks from media pundits and internet commenters.

Before abandoning a candidate over his position on the FISA Amendments, I think it’s incumbent upon us to actually read the text of the bill. Merh’s comments a couple of days ago inspired me to do just that, and it changed my perspective. The Amendments themselves are actually not that long:

http://thomas.loc.gov/cgi-bin/query/C?c110:./temp/~c110ydhZfs

To me, the text itself doesn't resemble at all the way it's being characterized. Many of the accusations made here seem to be based on assumptions such as:

--Judicial review is worthless
--Civil suits are all moot
--The only avenue to discovery has been closed
--Exceptions can be made at the whim of the Attorney General
--Bush will violate the law anyway

Some of the concerns appears to be simple misreading, such as:

--The law legalizes the capture of the entire US telecom stream for processing.
--The belief that all surveillance situations are affected. The Amendments concern primarily communication from a non-US person targeted as a terrorist originating a call or message from overseas to the US. Even in that case, a warrant is required. Provisions are also made fo US citizens overseas.
--The belief that any surveillance is authorized if the Attorney General simply writes a letter. It is an easy impression to get until you continue to the following section on judicial review.
--The telecoms are declared to immune to prosecution. In fact, the statutory defenses outlined in Section 802 for cooperation with legal programs initiated between Sep 11, 2001 and 2007, and apply to civil lawsuits only. That omits more than it includes.

Obama differs from the DU consensus in believing:

(1) Killing the entire bill was not an option.
Existing law expires in a few weeks, and surveillance of terrorists needs to continue, both for security and politics.
(2) The expiration and red-state Dem votes gave Republicans leverage.
Since he concludes a bill has to be passed, an imperfect compromise is to be expected.
(3) Potential bankruptcy of most of the largest telecoms would be a bad idea.
There should be penalties, but criminal charges, barring new government contracts, and more proportional fines are preferable to multi-billion judgments after the fact. As angry as I am at Verizon for cooperating, that is a perverse outcome.
(4) The Bill Makes Provisions for Legitimate Surveillance.
Monitoring phone calls into the US from targeted persons overseas is an integral subject of terrorist surveillance and should continue. Some of those calls will inevitably be found to terminate in the US. Those require warrants, as specified in the bill. Coverage is extended to US citizens overseas who, bizarrely, were not included before.
(5) The bill is not a wholesale rollback of the 4th Amendment.
Some FISA provisions established in 1978 (eg, the delay in requesting a warrant) flirt with the edges of the bill of rights, but that's not under debate here. Some concerns about potential effects or abuses are indeed possibilities, but not in the legislation itself. Obama may have a different take on the potential for and impact of abuses. He is not only closer to the situation, but is himself a high-profile target for surveillance.

Obama clearly has the mindset of someone preparing to actually run the executive branch rather than lobby for a certain set of concerns with no consequences. To me, that is a good thing.

You may not agree with this characterization, but please agree that our candidate has a different evaluation and has not abandoned his principles or his supporters.

[gateley]

1. So was it

the ACLU, Feingold, Jonathan Turley, John Dean, and some Democratic Senators who were duped?

[LynneSin]

6. Perhaps the ACLU was the best route to go with this issue

I mean the rate our congress moves, no matter who is in charge, it might take forever for the truth to come out and then it'll get buried somewhere on C-Span the Ocho or something like that.

Take it to the courts. This should have always been a court decision to define what has been violated with the 4th amendment. Perhaps if we can get a decision that proves, without a doubt, that a serious crime was committed (I mean I know we know that but we need to get a majority of the country to know that) then perhaps impeachment is possible even if we start impeachment of Bush in 2009. (or better yet the World Court).

Remember, anything that passed with no immunity for the Telecoms would have been veto'd by Bush and we'd have another delay and no real investigation into the Telecoms waiting for the right vote from Congress. Let this go to Court - I think that is where the true answer will be.

And in the mean time, Obama voted the way he should. Remember, right now the internet communities are probably the only ones out there bitching about FISA. You ask the average Joe on the streets and they don't have a clue what is is (wasn't there a Soccor league out there called FISA?). But RNC & McSame could take a vote against the telecoms as being 'Soft on Terrorism' because remember, Bush went to the Telecomes soon after 9/11 when Terrorism was important to everyone and Bush had some popularity.

It was a safe vote to keep Obama Centrist and appealing to those moderate voters.

[John Q. Citizen]

16. Except Obama's poll numbers are down according to Rassmumsan. They are the lowest they

have been since June 20th.

So it appears it was a poor political decision, just as a number of DUers and Obama supporters on Obama's web site have been saying all along.

Moving toward the middle hurts Obama's poll numbers.

Those people who have attempted to get Obama to not go there were working for Obama's best interests. Those who allowed or encouraged Obama to take this new stance on FISA actually inadvertently harmed Obama.

Also, people with civil cases against the telecoms are up in the air. Their cases would proceed far faster than the ACLU starting from scratch. But they can't bring them.

So to sum it up;

Voting with bush and the Repos and switching to do that is probably a bad idea.

Just because people attempt to stop Obama from hurting his campaign and the country doesn't make them anti-Obama.

Just going along with anything Obama puts out their isn't necessarily in the countries or in Obama's best interest

[LynneSin]

19. I live in a very liberal part of Delaware....

if I go out into the crowd and scream FISA people will look quizzical at me like I have no clue what I'm talking about.

This is an important issue but hardly what is hitting Obama's poll numbers. And I've seen poll numbers where he's actually doing quite good - remember, Polling systems like our Newspapers ceased being 'fair & balanced' sometime back in the 80s under Reagan.

[John Q. Citizen]

35. I live in MT near Missoula (quite liberal) and recently at an Obama meeting 22 out of

28 people there signed a petition asking Obama to reconsider his position on Fisa. A couple of people knew nothing about it but most knew what it was when FISA was explained in the context of foreign intelligence gathering that also eavesdropped on American

Our Statewide MT Public Radio had a citizen commentary on by Democratic activist and woman's advocate Terry Kendall where she said she had been really excited by the Obama candidacy, but lately, due to FISA (which was extremely current and also due to Obama's choice of economic advisers (less current) she was losing enthusiasm. She said she of course was voting Obama but losing her passion. That was on a couple of weeks ago right after Obama announced his switch on telecom immunity.

NPR had a long and in depth story on the FISA vote yesterday. So I think a lot more folks know about it now and more are learning about it.

Here's a link to the Rassmussen tracking Poll
http://www.rasmussenreports.com/public_content/politics/election_20082/2008_presidential_election/daily_presidential_tracking_poll

"The Rasmussen Reports daily Presidential Tracking Poll for Thursday shows Barack Obama attracting 45% of the vote while John McCain earns 41%. When "leaners" are included, Obama leads 48% to 45%. This is the first time that McCain has been within three points of Obama with or without leaners since June 20. Data released yesterday also showed McCain improving his position slightly in Missouri and New Jersey.

It will take another few days to see if this is merely statistical noise or if it marks a slight change from the stability of the race that has been evident since Obama wrapped up the nomination. With leaners, Obama has been at 48% or 49% in the national tracking poll every day for nearly a month and McCain has been between 43% and 45% every day but one since June 4 (see recent daily results). Tracking Polls are released at 9:30 a.m. Eastern Time each day (see recent demographic highlights)." snip

The last two days the Gallop tracking had Obama with a 2 point lead

[MarjorieG]

56. We are learning the online/alternative news as irresponsible in their advocacy as MSM

[John Q. Citizen]

72. I don't follow you. Why would you say that?

[MarjorieG]

23. Maybe the media talking affected polls. As if people understand this.

This is more an emotional issue, where people are righteously shouting without understanding the issue. There is always a downside to Bush legislation.

[dansolo]

40. Is that a result of the FISA vote, or the media coverage?

The coverage of Obama has been extremely negative lately, and the coverage of McCain has been shoddy at best. In that environment, it is not surprising that his poll numbers have been affected. But I think that it is a mistake to solely attribute it to the FISA vote itself, when we know that the MSM will do everything it can to inflate any controversy surrounding Obama as they desperately try to keep McCain close. Believe me, if they covered McCain's numerous gaffes to the same level as the cover Obama, his numbers would plummet.

[John Q. Citizen]

45. I've always thought Obama will smash Mccain in the general. Wait until the debates

The visuals alone will be amazing.

To be honest I think it's to early to tell with certainty if the polls are changing/tightening or if it's an anomaly.

I just don't buy the "move to the center is smart" argument. I think people want change.

"The center" doesn't mean anything anyway. What is it? what do "they" believe about any given issue?

I do think Obama's switch on FISA has sucked the enthusiasm out of some of his most active supporters, some of the people who have spent a lot of time and energy making calls, knocking on doors, and being very proactive in the campaign.

[On the Road]

8. That is Exactly the Type of Second-Hand Argument

I am complaining about.

[shireen]

10. answer the question: were they duped?

What is the difference between the interpretation of FISA by Turley/Dean/Dodd/etc. vs. Obama?

I'm not being snarky. I really want to understand the perspective of these two camps.

[Egnever]

61. If you can point out the specific diferences you are talking about

I would be happy to talk about it.

[On the Road]

73. Believe Me, I Completely Understand Your Perspective

I am trying to understand it too. There is some real congitive dissonance going on here.

I suspect what the ACLU and other groups are saying is that they believe the law will be abused in certain ways. However, that is not how it is being presented.

The ACLU lawyer who filed suit against the law was on Rachel Maddow last night, and she described the bill as allowing unlimited eavesdropping on all communications international and domestic. I can't even find where domestic traffic is mentioned at all except to reinforce existing law.

I respect the ACLU's concerns, but they have to present it accurately. If there is potential for abuse that they see in the law that's not actually there, not everyone may see the same potential. Otherwise, they leave the public with the impression that their candidate betrayed his own principles.

[gateley]

11. Happy I could provide an example. nt

[MrCoffee]

12. Second-hand argument?

:wtf:

[Egnever]

60. As in not looking into it yourself and just parroting others talking points

I love the ACLU but that doesn't mean they don't take positions I don't agree with.

For example they think publishing child molesters addresses on the net constitutes cruel and unusual punishment. I don't.

[On the Road]

76. Arugment from Citing Other's Opinions

rather than citing the legislation. This is pretty common, and for all I know works pretty well most of the time.

This time, however, there is a serious gulf between what our nominee and other Senators are saying and what interest groups are saying. That calls for slightly more attention to detail.

[On the Road]

75. I Think What's Happening is

that they are concerned about certain ways the bill can be abused that are not actually in the language. I don't deny that there is a potential for abuse, but the way they are describing it to their base does not seem to be accurate at all. The ACLU representative on Rachel Maddow, for example, described the bill as allowing unfettered espionage on all communications streams with no judicial review, which it plainly does not.

The bill does allow surveillance of non-US persons overseas without providing specific names. The administration might include US citizens in that list, but that would be breaking the law. They can break the law today (and have done so). In fact, the bill adds new protections for US persons overseas which shockingly were not there before.

The critics may see ways that they expect the bill to be evaded, but they need to be clear about that. What is happening now is that they are convincing hundreds of thousands of Democrats that the Dem candidate has done something terrible and hypocritical and authorized wholesale violations of the fourth amendment. This is a very, very bad thing, when apparently all that has happened is that Obama has a different set of expectations.

[Kurt_and_Hunter]

2. Are all the NO voters high-school drop-outs?

I don't get why Obama's education is an issue. It's not like everyone at the ACLU is a yokel.

The matter is what it is.

One might suggest it is kindest to our candidate to let it drop, rather than trying to convince people that Russ Feingold and Dick Durbin, etc.. are just too dumb to understand the bill.

[QC]

7. George W. Bush graduated from Yale and Harvard.

There is no better refutation of the fallacy of credentialism than that fact!

[pnorman]

27. Yale was a "legacy" thing.

And Harvard was the "Harvard Business School", rather than the University.

Here are a few websites on the latter:
http://www.thecrimson.com/article.aspx?ref=503181
http://query.nytimes.com/gst/fullpage.html?res=9A05E3DF1631F93BA25755C0A9669C8B63&sec=&spon=&pagewanted=all

pnorman

[margotb822]

42. McCain was a USNA legacy acceptance

And if his performance and our current president are any indication, that is not a good thing for America.

[QC]

63. Unqualified children of privilege still get preference over the deserving.

My point was about assuming that academic credentials tell us everything about a person.

I studied under some truly brilliant people from the Ivy League, including the man who directed my dissertation, one of the top scholars and teachers in his field and a true mentor to me. Likewise, I studied under some first rate people from the state university. On the other hand, I knew some graduates of the Ivies and prestigious western schools who were absolutely undistinguished intellectually but had good family connections or a talent for academic politics. (Generally these people are the ones who cannot let five minutes pass without reminding you where they went to school.)

This is why I get a little worried when I see someone asserting that we should believe something because the person who said it went to Harvard.

[On the Road]

9. I am Not Charging Anyone with Being Dumb

Intelligent people disagree. The charges are being leveled against Obama.

[democrattotheend]

3. Interesting thoughts

I think people in the blogosphere are being really melodramatic when they call this "the end of the Constitution" and what not. And you make a good point about bankruptcy for the telecoms...that would cost a lot of jobs and be a big disruption to the already weak economy. I also agree that killing the bill was not an option, and Democrats who wanted to did not have the votes.

[midnight]

4. Sen. Obama has been trained well. I'm sure his interpretation

is different. It has me and many concerned about how an amendment to a bill that had plenty of tools to do the work we needed it to do was needing change. When one explores why the bill needed amendments is where the trouble of interpretation begins. Sen. Obama's mindset is similar to the mindset of Washington right now. They are selling fear, and unfortunately the reasons you describe show Senator Obama's willingness to entertain that fear. Clear and simple-Not a good thing.

[On the Road]

14. Thank You for the Thoughtful Response

I don't see Obama as selling fear at all. I see it as a very practical decision.

As far as why the bill might have needed amendment; maybe it didn't. Primarily it needed to be extended. I think this is what a lot of people miss. Without this bill, the act would have expired and either the current actions would have become illegal or the whole terrorist surveillance operation would have shut down. (If there were a terrorist attack, that alone could have lost the election.) Obama felt passing a bill was necessary; he felt this bill met his minimum requirements.

I also think there's a prejudice against the whole espionage process against terrorist organizations because it's been overblown, lied about, and used for fear-mongering. That is true, but it still needs to be done. Clinton did it, and did it more effectively than Bush.

I have concerns about the amendment too. In fact, I think there are a lot more serious fourth amendment issues that aren't even part of this discussion, such as some of the provisions on domestic searches and key capture. It is more a question of proportion, judgment, and living in an imperfect world.

[On the Road]

15. Dupe -- deleted

[Marrah_G]

5. Spin spin spin spin !

[jgraz]

13. Here's what Obama won't tell you about the bill

And yes, I've read it.

1) Judicial review is no longer required for a wiretap. The Attorney General or the freaking Director of National Intelligence simply have to issue an "authorization" that they are "targeting people reasonably believed to be located outside the United States."

2) The government does not need to reveal the target of their surveillance, and the NSA is the sole arbiter of who ends up being spied upon.

3) Judicial review is limited to simply confirming that the authorization "contains all the required elements." There is no required disclosure of individuals being targeted or the information that is being sought.

Does that sound like the Fourth Amendment that you and I grew up with?

And as far as immunity is concerned:

4) Any case against the telecoms "shall be promptly dismissed" if they can show that the president directed them in writing to break the law. In other words: as long as the president gave them a permission slip (which we already know is the case), the companies cannot be sued.

5) Judicial review is not even required for this tissue-thin gimmick. As long as the Attorney General certifies to the court that the companies received the proper authorization under this bill, they have de facto immunity.

Tell me again how this is not retroactive immunity. Here's the EFF's analysis of this issue: http://www.eff.org/files/AnalysisHR6304-v5.pdf



In short, this bill is a fucking disaster for civil liberties. And the question is not about Obama's judgment. It's about his honesty.

[Bake]

21. Thanks, jgraz!!

I don't remember anything in the Fourth Amendment about "authorizations." I do remember "Warrants." They're issued by a judge, upon a showing of probable cause.

As far as bankrupting the telcoms, that wouldn't happen. What likely WOULD happen would be a few class actions, which the telcoms would settle. No multi-gazillion judgments, and certainly nothing the telcoms couldn't afford.

And if they can't afford the liability, they shouldn't take the illegal and/or tortious course of action. The flip side of that is: should corporations be allowed to do just any damn thing they want, and be shielded from liability, because lord knows how many jobs would be lost if they got sued all the time?

Bake

[On the Road]

34. If You Read the Text

you will find that the authorizations do not apply to US citizens. They apply only non-US-citizens overseas. US citizens come into play only if those authorized targets happen to make a call from overseas terminating in the US. In this event, a warrant is still needed.

[jgraz]

39. You are exactly the target audience for this FISA Amendment.

The Bush administration is relying on the overly literal-minded who are incapable of putting 2 and 2 together.

Here's the key paragraph.

‘SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS.

‘(a)Authorization- Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.


Now since I gave you the starting citation, perhaps you can tell me what a judge is allowed to review in such an authorization. (Hint: don't waste your time searching for "probable cause" in section 702)

Then perhaps you can tell me: if the DNI, AG and NSA are not required to submit the names of the subjects or even the information being searched for, how can any judge review whether this surveillance is valid?


That's just a start of the problems in this bill. But I don't want to overtax you.

[merh]

48. Wow, when did non-US Citizens outside the USofA start to

have constitutional rights? I thought only US citizens had constitutional rights.

[grillo7]

64. Thank you, Merh, for pointing that out so I didn't have to

[merh]

68. I'm sorry I had to point it out.

I know the poster as a very smart and caring poster. I think he got caught up in the emotions, plenty of smart folks have done that, some you'd never expect it from.

Welcome to DU, buckle your seat belt the ride gets bumpy. :hi:

[SidneyCarton]

22. Being born in 1982, with the so-called "war on drugs" beginning,

I do somewhat fail to see the difference in the 4th Amendment. It has been gutted for years. A cop can initiate a search on the barest of pretences. If this actually killed this Amendment it wasn't the fatal death blow it has been characterized as, but a pulling of the plug on a long comatose civil liberty.

[mrreowwr_kittty]

25. The people screaming about FISA don't live in neighborhoods where cops routinely kick in doors

You're making the same argument I've been making, to largely deaf ears, the past few days. And frankly, most of them probably won't be adversely affected personally by a McCain presidency, so they can afford to zealously cling to their "principles". I'll bet a lot of them have no problem with things like DUI checkpoints either, another gross violation of the 4th Amendment that is done in the name of "safety".

[jgraz]

26. The fact that we already live in a police state does not excuse every new atrocity.

Why is that so hard to understand?

[SidneyCarton]

29. No, clearly it doesn't.

That said, might we focus on getting out of the police state first?

[mrreowwr_kittty]

30. If you realize we already live in a police state

Then stop with the "ZOMG! FISA SINGLEHANDEDLY DESTROYED THE 4TH AMENDMENT!!1" crap.

[jgraz]

32. This is a new level of disregard for the rule of law.

This is not just someone looking the other way while police overstep their bounds. This is Congress -- run by the goddamn Democrats -- voting to give the most unpopular president in the history of the republic everything he wants in the way of illegal surveillance.

It's not only a complete abrogation of our 4th Amendment rights on a scale never before seen, but it's yet another disgusting capitulation to the true terrorists in the executive branch.

[mrreowwr_kittty]

38. "Someone looking the other way while police overstep their bounds"

Is NOT what is happening with drug raids and checkpoints. These things are officially sanctioned activities and are every bit as gross an abrogation of civil liberties as FISA. The US Supreme Court has upheld sobriety checkpoints. And those 'goddamn Democrats' helped give us the USA Patriot Act. Twice.

I am not arguing with the substance of your argument. I don't like the FISA bill either. I simply take issue with the hyperbole. This is but one more outrage in a long line of outrages against our liberty. It is not the Mother Of All Outrages as you make it out to be.

[SidneyCarton]

28. That's no excuse, I don't live in that kind of neighborhood either.

But I know it happens, I know my rights against illegal search and seizure have been long been whittled down. This isn't a manufactured crisis, but the melodrama here defies belief.

[mrreowwr_kittty]

31. Exactly.

It's melodrama. The FISA bill sucks, but so does every other violation of peoples' 4th Amendment rights.

[On the Road]

33. Seriously, You Should Read the Bill

That is what I was trying to encourage. It is not that long. It does not say what you are depicting. Now:

'1) Judicial review is no longer required for a wiretap."

It was never required for non-US citizens. It is prohibited for "US persons" -- this in fact is a new protection.

Sec. 702
`(b) Limitations- An acquisition authorized under subsection (a)--
`(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

"2) The government does not need to reveal the target of their surveillance, and the NSA is the sole arbiter of who ends up being spied upon."

Identity of targets can be withheld only for non-US citizens. US persons who are targeted rquire a warrant.

"3) Judicial review is limited to simply confirming that the authorization 'contains all the required elements.'"

Sec. 802
b) Judicial Review 1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

"4) Any case against the telecoms "shall be promptly dismissed" if they can show that the president directed them in writing to break the law."
5) Judicial review is not even required for this tissue-thin gimmick.

I am assuming that “shall be promptly dismissed” is from the beginning of Sec 802. Here is the text:

`SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
`(a) Requirement for Certification- Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that--

`(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was--
`(A) in connection with an intelligence activity involving communications that was--
`(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
`(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
`(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--
`(i) authorized by the President; and
`(ii) determined to be lawful….

This would appear to prove your point, except that the discussion does not end there:

`(b) Judicial Review-
`(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

[merh]

44. Eww, I wanna play

Please provide me the language from the legislation that supports your lovely little "bullet points".

I'll start, make it easy on you.

1) Judicial review is no longer required for a wiretap. The Attorney General or the freaking Director of National Intelligence simply have to issue an "authorization" that they are "targeting people reasonably believed to be located outside the United States."

MYTH (well actually blatant lie, but let's settle for myth).

‘SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES TARGETING UNITED STATES PERSONS OUTSIDE THE UNITED STATES.

‘(a) Jurisdiction of the Foreign Intelligence Surveillance Court-

‘(1) IN GENERAL- The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence information, if the acquisition constitutes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States.

‘(2) LIMITATION- If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States while an order issued pursuant to subsection (c) is in effect. Nothing in this section shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

‘(b) Application-

‘(1) IN GENERAL- Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application, as set forth in this section, and shall include--

‘(A) the identity of the Federal officer making the application;

‘(B) the identity, if known, or a description of the United States person who is the target of the acquisition;

‘(C) a statement of the facts and circumstances relied upon to justify the applicant’s belief that the United States person who is the target of the acquisition is--

‘(i) a person reasonably believed to be located outside the United States; and

‘(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

‘(D) a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;

‘(E) a description of the nature of the information sought and the type of communications or activities to be subjected to acquisition;

‘(F) a certification made by the Attorney General or an official specified in section 104(a)(6) that--

‘(i) the certifying official deems the information sought to be foreign intelligence information;

‘(ii) a significant purpose of the acquisition is to obtain foreign intelligence information;

‘(iii) such information cannot reasonably be obtained by normal investigative techniques;

‘(iv) designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and

‘(v) includes a statement of the basis for the certification that--

‘(I) the information sought is the type of foreign intelligence information designated; and

‘(II) such information cannot reasonably be obtained by normal investigative techniques;

‘(G) a summary statement of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition;

‘(H) the identity of any electronic communication service provider necessary to effect the acquisition, provided that the application is not required to identify the specific facilities, places, premises, or property at which the acquisition authorized under this section will be directed or conducted;

‘(I) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and

‘(J) a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application.

‘(2) OTHER REQUIREMENTS OF THE ATTORNEY GENERAL- The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

‘(3) OTHER REQUIREMENTS OF THE JUDGE- The judge may require the applicant to furnish such other information as may be necessary to make the findings required by subsection (c)(1).

‘(c) Order-

‘(1) FINDINGS- Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court approving the acquisition if the Court finds that--

‘(A) the application has been made by a Federal officer and approved by the Attorney General;

‘(B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is--

‘(i) a person reasonably believed to be located outside the United States; and

‘(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

‘(C) the proposed minimization procedures meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

‘(D) the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3).

‘(2) PROBABLE CAUSE- In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

So what do you have to support #2 - I just debunked #1 as court order is required, identity of target is required and monitoring stops if that US citizen returns to the US (unless new application to the court is made with new evidence/probable cause and in compliance with the requirements). Oh and please notice the entire paragraph in this provision dedicated to PROBABLE CAUSE. That silly ole 4th amendment, no warrant issue but based upon probable cause, or something like that. Not only does it protect the 4th (that damned probable cause thing), it protects the 1st.

Think of the application as an affidavit that is required by the courts before they will issue a search warrant to the police for regular old criminal shit. What differs here is the application requires more than the affidavit.

Your turn, back up #2.

On second thought, my posts debunk #2 & #3 as well.

2) The government does not need to reveal the target of their surveillance, and the NSA is the sole arbiter of who ends up being spied upon.

3) Judicial review is limited to simply confirming that the authorization "contains all the required elements." There is no required disclosure of individuals being targeted or the information that is being sought.

Have you got anything on 4 & 5?

[jgraz]

46. You quote section 703, I quote section 702

Since you can't read, yet still decide to call me a liar, I feel free to ask you a question I've been wanting to ask for days:

Are you actually being paid by the Bush administration, or are you intellectually fellating them for free?

[merh]

47. It is you that cannot read.

‘SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS.

You do know that non-US citizens (other than US persons) have no constitutional rights outside of the United States, don't you?

I'm not being paid, I just don't do "parrot" well. When this all began I thought "damn I got to see this evil language" and low and behold, there are protections through out the bill - most notably is the number of times it requires PROBABLE CAUSE and specifically says that the constitutional rights of US CITIZENS will be protected.

How much are you being paid for peddling the misinformation, spewing the hate and misreading the legislation?

Now, back up #2 with something, let's see how well that goes.

[jgraz]

49. Once again: there is no judicial review of individual surveillance targets.

How do we know they aren't US citizens? Are you saying that now we can somehow trust the Bush administration to preserve our rights?

This is the heart of judicial review, and it's eliminated in this bill. Why is that so hard for you to understand?

[merh]

50. LOL and how do you know they are?

LOL, boy you can't even debate an issue properly.

‘(a) Authorization- Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

‘(b) Limitations- An acquisition authorized under subsection (a)--

‘(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

‘(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

‘(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

‘(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

‘(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

There goes your argument about no Order and "only on the word some official".

Let me ask you, how does the 4th amendment work with regard to criminal prosecutions? Some cop thinks the bad guy is bad or has bad stuff and he prepares an affadivit identifying the bad dude, why he thinks he is bad and what he is searching for, right?

How do we know he is not lying? Are the laws that established those procedures evil because all cops don't follow the law? Isn't it better to have laws that puts the limitations in writing, that establishes procedures and that tells folks what they can and cannot do than to have no law on the topic at all?

If the search is illegal, if it is made without the proper order or warrant, all things seized must be returned to the suspected bad guy and the charges dismissed. Fruit of the poisonous tree.

[jgraz]

70. Thank you. You just told me all I need to know.

Good luck in what's left of the Bush administration. That Liberty University degree should take you far

[merh]

71. I think you are the one with the Liberty University degree.

I mean, you are all bent out of shape about the constitutional rights of US citizens being trashed yet to support your outrage you focus on a provision that has nothing to do with the rights of US citizens. It is amazing to me that you can't see that, that you can't recognize your mistake.

[merh]

52. This legislation is about the FISA courts.

It is about getting the court orders to conduct the surveillance.

Now, since I debunked 1, 2 and 3, shall I debunk 4 and 5 for you?

4) Any case against the telecoms "shall be promptly dismissed" if they can show that the president directed them in writing to break the law. In other words: as long as the president gave them a permission slip (which we already know is the case), the companies cannot be sued.

Well, where to start.

The president didn't follow the FISA laws and he ordered the monitoring without the requisite probable cause. Hell, a court just yesterday said that GWB disregarded the FISA laws and the surveillance was illegal.

http://www.salon.com/opinion/feature/2008/07/09/alharam...

Suing George W. Bush: A bizarre and troubling tale

U.S. officials went to extremes to stifle our legal challenge to Bush's warrantless surveillance -- but a federal judge says the program is criminal, anyway.

By Jon B. Eisenberg

Jul. 09, 2008 | On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.

Discussion at this thread
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x3586356

Oh, and that section that you claim lets the AG dismiss without question specifically provides:

‘(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was--

‘(A) in connection with an intelligence activity involving communications that was--

‘(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

‘(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

‘(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--

‘(i) authorized by the President; and

‘(ii) determined to be lawful; or

We know that GWB began the monitoring before 9/11 so guess that little window is not really there for him or the telecoms.

And I suppose you will say that the AG will simply say "it was legal" and that will be it. And that leads to debunking your #5:

5) Judicial review is not even required for this tissue-thin gimmick. As long as the Attorney General certifies to the court that the companies received the proper authorization under this bill, they have de facto immunity.

To debunk this all one has to do is read to understand the provisions of 802:

‘(b) Judicial Review-

‘(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

"Unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section" -- that means that the court has to make a determination and has to decide for itself that it was lawful (as in did not violate the 4th amendment rights of any US citizen - as in, targeting and monitoring without proper order of the court and/or with probable cause). Substantial evidence is quite a bit of evidence is more than a mere scantilla of evidence. This means the trial judge must review the certification and all that the AG claims supports the certification that the action was legal.

Hell, they cannot hide behind states evidence either, the court gets to review that too. The plaintiff will surely cite the court to the judges ruling in Al-Haramain Islamic Foundation Inc. v. Bush should they need to challenge this certification. It should be noted that this certification relative to the statutory defenses (not immunity, definitely not blanket, absolute immunity) is different than the certification required to obtain a court order from the FISA court authorizing the surveillance.

And, as the law provides, any party can move to have the certification reviewed and can appeal an order of dismissal (or an order denying dismissal).

‘(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

‘(c) Limitations on Disclosure- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall--

‘(1) review such certification and the supplemental materials in camera and ex parte; and

‘(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.

‘(d) Role of the Parties- Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court’s written order that would reveal classified information in camera and ex parte and maintain such part under seal.

‘(e) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.

‘(f) Appeal- The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.

‘(g) Removal- A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.

‘(h) Relationship to Other Laws- Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.

‘(i) Applicability- This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.

[DevonRex]

17. Oh hell. They don't WANT to know the facts. They just want to

piss and moan.

[jgraz]

18. Do YOU actually know the facts?

For example, what kind of surveillance does this bill allow that was not allowed before?

How many of these new types of surveillance actually require judicial review?

What is required for a lawsuit against a communications provider to be dismissed?

How many of the current FISA violators meet that requirement?

What clause of the 4th Amendment is specifically violated by this law?


Do you actually know any of these critical facts that the rest of us are "pissing and moaning" about?

[SidneyCarton]

20. Graz, does your piano have any other key other than FISA?

Just wonderin' because you've been pounding it for a while. We've argued this to death, if we're really in a death spiral toward Fascism, which I will entertain as a possibility, then you, me and the rest of us are already screwed (if indeed the most melodramatic of the posts I've seen in the last 2 days are true.)

Truly, is there nothing left to talk about???

[jgraz]

24. If people stop making shit up about FISA, I'll stop feeling like I have to correct them

It's really that simple.

[merh]

51. LOL - you are the one that has made up shit.

Now, please support your #2 with language from the legislation.

Or did you make it up.

[vaberella]

59. When is using EXACT language from the bill, making things up?! How does that make sense to you?

That's like being told that the cat has four legs but you screaming it has five and saying the four legged cat is a figment of our imagination and providing a photoshopped image as proof.

I call it you really losing it.

[On the Road]

36. Sidney, Try Asking Graz to Cite the Bill

Didn't work for me, although I cited a number of places for him.

:smoke:

[merh]

53. where'd they go

:shrug:

;)

[vaberella]

62. It's called not being able to handle the truth. People don't read the bill but go freakin' crazy!

Nutters, I say let them lick their wounds and when their over it they'll come back...or not.

[TexasObserver]

37. Good work. Obama is being smart.

[badiou]

41. i don't care what school he went to

his decision was a poor one

[slipslidingaway]

43. Not true...

"(1) Killing the entire bill was not an option.

Existing law expires in a few weeks, and surveillance of terrorists needs to continue, both for security and politics."

[samsingh]

54. thanks for taking the time to clarity - it makes it easier to accept

Obama's vote.

[samsingh]

55. thanks for taking the time to clarity - it makes it easier to accept

Obama's vote.

[vaberella]

57. To MERH---Darn It, I was going to post. I thought the link

that was given by Jgraz first was a dated FISA bill comment and there was no links. The pages listed even the language I couldn't find on the FISA bill.

Did I have the wrong link?

I found my FISA bill account from Thomas-The Library of Congress site.

[merh]

66. I don't know where he got his info.

All I can figure out is that he has confused US citizens with non-US citizens. He focuses his anger on provision 702 which do not relate US citizens.

He has also confused the certifications in the law. There is the certification to the FISA courts that are required before an order can be obtained. (Like an affidavit before a search warrant will be issued.)

Then there is the certification related to the statutory defenses.

Both require review of a court, the first requires the FISA court review it and the second requires the trial court review it.

Folks get all caught up in the emotions and don't take the time to read and analyze the facts, the language of the law and the practical application of it. They also forget that there is existing case law regarding our 4th amendment rights and probable cause. This statute actually bolsters our rights, as others have pointed out, the courts have been known to put probable cause aside when it comes to the protection of the public.

[mrreowwr_kittty]

74. SCOTUS upheld DUI checkpoints back in '91.

They said that public safety outweighed the right of people to be free from unreasonable searches and seizures. The War on Drugs has been a travesty against civil liberties but most people squawking about FISA have never been subjected to a drug raid or lost their home or car because someone else had drugs in it.

[grantcart]

58. Your post and the responses in the thread are very instructive

[AtomicKitten]

65. Not enough votes for a filibuster.

Under the circumstances, Obama made the smart move. Even Feingold says it's fixable, so this isn't terminal. The funeral wreaths are premature. What we can't fix is a lost election. He has to win because the alternative is unthinkable.

Obama is the nominee, he clearly knows what he is doing (beating inevitability), this is obviously strategic and not ideological (read his books dammit!), so I'm going with the flow here.

People should be angry and have every right to be. Me, I'm invoking zen here because my I'm exhausted from outrage and I'm watching this administration wind down and, wow, this could be interesting and a half.

I don't understand why the accusations are flying on this. I really don't. Everybody is right.

[merh]

67. Actually, if you read this thread you will see that the anger

is misplaced. Is it a perfect bill? No, there are plenty of things I would improve in it, but it is hardly the affront to our rights that folks claim it is.

[Tektonik]

69. no balls