What's the argument FOR the "foreign wiretap bill?" Please explain this to me...

[Sparkly]

I've been out of town, literally. I heard about the passage of the so-called "foreign" wiretap bill, and have been trying to figure out why any Democrats voted for it.

I can usually understand others' point of view even if I disagree with it, but I'm not at all clear on the argument for it. Were there floor speeches or media facetime or anything where Democrats who voted "yes" explained their rationale??

I read that they got a few "concessions," including that the director of national intelligence as well as the AG approves the wiretaps, but that's hardly oversight; and without oversight, nothing they do can be trusted.

I'm baffled. Did the Democrats get anything out of this?? :crazy:

[Kagemusha]

1. I posted a thread last night with my theory.

Somehow the US can't prove to a judge's satisfaction that a certain kind of surveillance involves two foreigners (non US residents). I think that means it's VoIP, because if it was regular calls, even if they were routed through US com nets in digital form, the recipient would be absolutely clear. Somehow in this case, even if they know one party is foreign (let's say because they've bugged someone's computer abroad, for just one example), and they 'think' (in good or bad faith) that the other party is foreign, but they can't *prove* it. Somewhere a judge said, if you can't prove it, get a warrant. Foreign to foreign doesn't need a warrant to just take the data anywhere convenient for the admin.

So this bill says, a reasonable belief by the DNI and AG together that a party is foreign, is enough for spying on that person for a year. ...But what if they later find out that it's a US resident?

So far as I can tell, too bad, so sad.

[Sparkly]

3. Does it ever get documented, reviewed, etc. by anybody else?

And does anybody make sure it does?

Seems like a recipe for deceit.

[Kagemusha]

6. Ever, yes, I suppose, but IIRC, the leash is long.

The courts don't even get documents for a review for 120 days, or something like that. As I haven't read the bill from front to last page, and the reporting has been spotty (the excellent legal blogs should have more coverage at some point, for instance Balkinization, and Glenn Greenwald's blog that's on Salon now), I can't say much about the details. Between you and I, I don't much care. Any such report is ripe for massaging and spinning to begin with, and our only guarantee of accuracy is the word of the Director of National Intelligence and that of Attorney General Alberto Gonzales. Even dismissing #2, #1 works for the same boss and if the boss orders him to fib, is he really going to not fib?

[Sparkly]

9. Yup, yup, yup -- that's no oversight at all.

Selective documentation at best...

Thanks for the info, though.

[Kagemusha]

11. You are quite welcome. And check those blogs come Monday.

They should have insights and not just anger in the days to come (though I understand, and appreciate, the raw anger too).

[Kagemusha]

18. More details are out and I was wrong about some things. Which is fine.

The reporting was too darned thin before, so not feeling like a heel or anything.

Seems that the no-warrant spying is simply for specific calls, not attached to the two particular people involved. The law only specifies that there be a reasonable belief that the TARGET is foreign - the other person can be a US person, and the no-warrant spying done with complete impunity. This is a heavy escalation of what Congress has approved in the past. Since this is a 'foreign target, get 1 American free' scheme, Americans will have their rights violated on a possible cause standard, not probable cause. So not only is the standard weaker, it is weaker - and then requires no warrant. Just the intel director and Gonzales' approval.

So, because of that, my VoIP theory goes bad, because it's not unique to the Internet at all, it's simply grabbing data raw from the telecom hubs in the US. Or put another way, it's simply retroactively and for the next 6 months until further reauthorization (which we can both bet is likely to happen) the data grabbing on both foreigners and American citizens that has already been going on, that the admin never admitted to for reasons like it being uh, illegal.

The point being... if it was foreign to foreign, no warrant's needed, and if it was foreign to American involving a terror suspect, you could get a FISA warrant, and they're very very very rarely turned down, but apparently Bush views that as too much work. I guess a judge objected to cutting corners on this and demanded the warrants be done properly. So tolerance of no-warrant wiretapping which was already breaking FISA ended and Bush kept word of it secret until just before the recess so he could railroad Congress into approving what Bush wanted Congress to approve for.. oh... the whole term, but those pesky Democrats had been holding hearings and doing investigations into past breaking of the law instead of approving the lawbreaking retroactively and for the future.

Well, Bush doesn't have to worry about that anymore!

[Jack Bone]

2. For all I know, they've claimed "Legislative Privilege"..

I dunno...all I know is that it's for 180 days...and in the meantime they're going to work on something better...it ain't over.

[Sparkly]

4. Did they just all want to go home?

"Go with this and we'll come back to it in six months?" :shrug:

[Solly Mack]

5. the primary talking points were 1 - update FISA & 2 - Protect Americans

[Sparkly]

7. I figured the "protect Americans" would be in there, but

was there any explanation of how warrants from the FISA court did not protect Americans?

Was a reason given on why FISA needed updating (besides covering BushCo's azzes)?

[Solly Mack]

8. Oh, they claimed FISA wasn't ready for today's technology

so Americans weren't fully protected....

Good link on the subject
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x1511757

[Sparkly]

10. Thanks! nt

[in_cog_ni_to]

15. TECHNOLOGY has changed so much since 1976 and FISA was just obsolete....according to Heather,

the wench, Wilson (NM)....now under investigation herself by the ethic committee because of her involvement in the U.S. attorney firings.

They never did explain why a court order is not needed anymore. Funny, the FISA court worked just peachy until these thugs took over.

We are so screwed. Gonzo, the psycho-in-chief and the Dickhead sociopath can now FREELY spy on us. I am still in shock that Congress did this to us. I will never trust them again. EVER.

[MannyGoldstein]

12. The Argument Is That We'll Vote For A Democrat Anyway, No Matter What

Let's face it - there are zero consequences to be paid for bad votes. Zero.

Vote to go to war with Iraq? Or to extend permanent 'free' trade status to China? Hell, not only do you not get chucked out of office - YOU CAN BE A FREAKIN' DEMOCRATIC PRESIDENTIAL FRONTRUNNER.

The "Democrats" figure that all they have to do is stay a tiny bit to the left of the Republicans, and we'll vote for them every time - and they're right.

[chill_wind]

13. Busholini and his jack-boots REQUIRE it.

Bush demanded it, using an escalating fear rhetoric of heightened terror alerts, enhanced quite effectively with an increasingly visible presence of capitol-hill security Homeland Security was building up all week (according to reports of it at TPM)...

Also very effective use was made of propaganda and pure disinformation about the need for the bill. One chronicle of that here:

The FISA Fix/Mess: Combating the Lies, MisInfo and DysInformation (ACLU Fact Sheet.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x1511757

Bush threatened to veto and hold Congress hostage over on summer recess until he got his package. He got it.

There are a bjillion excellent DU threads on the FISA mess over the last 5 days or so.

Offsite-- TPM's Josh Marshall and staff have done a very good job keeping the whole blogosphere informed, with frequent updates all throughout.

[BlooInBloo]

14. TERRA!!! 9/11!!! TERRA!!!!

[jobycom]

16. It's a temporary, stop-gap bill until they can work out details on a real solution.

Congress was about to go on vacation, and--I don't remember the full particulars but this is the gist of it--they had to pass a bill before leaving or some authority or another would expire, and Bush would have basically no restrictions at all. Bush said he would veto the bill the Democrats wanted to pass. So they passed a stop-gap measure that expires in six months, basically keeping the status quo, so they can come back and work out a better bill after the break.

The bill got exactly enough votes (60) in the Senate to pass (by special arrangement, both sides had agreed that 60% was required). Which means that a lot of the Dems who voted no probably agreed that it had to be done, whether they liked it or not. Usually when a bill gets exactly enough votes like that, it means that all the details were worked out behind the scenes. People like Obama, Reid, Clinton, and others with national standing had to be seen as voting no, so they got the Dems from the conservative states to vote yes, and released everyone else to vote no. They didn't bother trying to explain that to the public, because it's a volatile election year, so they just protected the most vulnerable Dems and hope they can make it up later.

Understanding of the legislative process is fairly low around here these days, so a lot of people are couching it in terms of traitors and heroes. The problem, to me, is much more sinister. The Dems in Congress are afraid to be honest with the voters, just as the Republicans have always been. That's a sign of the power of the Internet to influence lots of people--in the past, the bill would have been frowned upon, but opposition wouldn't have been organized enough to create a backlash. Now, nothing goes unnoticed.

IMHO, the Democrats--all politicians--are going to have to change their basic concept of politics. The Internet means nothing will escape public attention, and when they refuse to offer explanations, most people have no way of understanding what's happening. They are going to have to start trusting us, and explaining their actions in real terms, rather than in their campaign-tested slogans. Back before television, political debates lasted all day, and people hung on every word a politician said, so politicians took the time to make their arguments. Television changed that, and created the twenty second soundbites, so that if a politician went on for longer than twenty seconds, the media would take the most contraversial aspect of what they said and report that as the entire statement. Politicians who spoke at length, who didn't understand the soundbite, were eaten alive.

The Internet has changed that. Thinking voters can now get around the MSM, and can hear or read the full statements of our politicians. And we hate soundbites. We go for the whole explanation. Politicians haven't made that transition yet. So incidences like this, where they try to sneak something past us using the old rules, backfire.

They will have to relearn politics again. They will have to learn to try to persuade voters rather than appease them. They will have to learn to trust us to understand them. To me, that's what this incident shows. If Reid or Clinton or Obama had come out and said "We hate this, but we have to pass this bill, or we will cripple our intelligence system. We will fix this bill when we get back," they would have created a lot of anger, too, but they'd also have generated some understanding. They don't accept that we are on their side, and they on ours, and we need to be treated like partners, not like subjects to be dictated to. Because they don't, they try to fool us, and instead they anger us.

So while I personally am angered by this bill, I have a small amount of understanding that they had to do it, and so my anger is less than others. But, they created their own mess by trying to hide from us, and that creates a whole different anger in me. That's just my perspective, for what it's worth.

Ask a simple question, and I'll give a long, unrelated answer. Sorry. :)

[Sparkly]

17. Good points -- thanks!

And I totally agree that it'd be far preferable for them to just level with people and explain WHY they cut a deal or whatever... :hi:

[chill_wind]

19. This was an effort to overturn a FISA court judge's ruling. To get legislative immunity.

A FISA judge had reigned them in and ruled some of what they had been doing was unlawful. That was the "emergency". The powerful BushCo propaganda was that the FISA Law (just updated recently last year) needed modernized and updated, as their hands were still being tied with a new urgent need for better ""foreign to foreign".

Since Bushco and the DOJ have REFUSED to disclose what that secret court ruling says, why......we'll all just have to take their word. Even as we were grilling Gonzales over a hot-spit on the legalities of his programs and Congress was rounding up names for an impeachment resolution on the man only days before.

They chose to take to take Bush's word. Terra! Terra! 9-11!!!



Behind the Surveillance Debate
A federal judge's secret ruling restricting the intelligence community's surveillance powers helped spur a Capitol Hill bid to grant Bush new authority.

By Michael Isikoff and Mark Hosenball
Newsweek
Updated: 12:17 p.m. PT Aug 1, 2007

Aug. 1, 2007 - A secret ruling by a federal judge has restricted the U.S. intelligence community's surveillance of suspected terrorists overseas and prompted the Bush administration's current push for "emergency" legislation to expand its wiretapping powers, according to a leading congressman and a legal source who has been briefed on the matter.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.


Quote:
But last January, partly in a bid to quell criticism from Democrats and civil liberties groups, the administration agreed to submit the entire surveillance program to the FISA court for review. Much about the process has never been explained publicly. But at some point after the new program began, one of the FISA judges—who, by rotation, was assigned to review the program for periodic updates—concluded that some aspects of the warrantless eavesdropping program exceeded the NSA's authority under the Foreign Intelligence Surveillance Act, the basic 1978 law that governs eavesdropping of espionage and terrorist suspects, said the lawyer who had been briefed on the ruling. The judge refused to reauthorize the complete program in the way it had been previously approved by at least one earlier FISA judge, the lawyer said, adding that the secret decision was a "big deal" for the administration.


Quote:
It was only after that ruling that Director of National Intelligence Mike McConnell this spring began urging Congress to pass an emergency "fix" that would clarify and specifically grant the NSA authority to tap switches based in the United States without review by the FISA court. The administration effort has accelerated in recent weeks—and won the support of key Democratic leaders—amid warnings from the intelligence community that the country is facing greater risk of a new terrorist attack due in large part to the resurgence of Al Qaeda in Pakistan.

(...)

Full story:

http://www.msnbc.msn.com/id/20075751/site/newsweek/

(bold-face mine)

[Kagemusha]

20. That last paragraph you quote is just... sick.

This isn't a technological crisis. This isn't a national security crisis - who here believes Bush wasn't going to keep on spying no matter what the Dems said? Who really believes otherwise?

No, this was a political crisis - the Democratic leaders deciding that their butts were politically exposed in the event of an Al Qaeda attack. They rushed to give Bush what he wanted when Bush demanded it with all sorts of scary briefings not because the legislation helps protect the United States to an extra degree, but because it protects their own political hides to an extra degree, in their opinions as wise congressional leaders.

And that just makes me sick.

[chill_wind]

21. Exactly. We let an unelected tool from Bush-Cheney's rump Pentagon just waltz into Congress

grab some pen and paper from the nearest desk to craft Bush's bill himself and shove at the Dems, then fetch it right back to the Unitary Tyrant.

They still know no more about what laws were being kept/broken than they did before they "Fixed" them.

There have been other kinds of names for these kinds governments in other countries in the past.