Free Republic

S.1803 and H.R.2475

The Senate Bill appears to be the "active" one, being No. 293 on the General Orders of the Legislative Calendar.

The Associated Press (Katherine Shrader)
Thursday, December 15, 2005

WASHINGTON -- The Senate's efforts to wrap up an intelligence spending bill hit a snag this week when a Republican lawmaker blocked legislation that would force the Bush administration to divulge more about secret CIA prisons and the prewar Iraq intelligence.

It's unclear who the senator is or what the precise objections are.

Two separate amendments _ from Sens. Edward Kennedy, D-Mass., and John Kerry, D-Mass. _ would require the national intelligence director to provide classified information on secret CIA prisons to congressional intelligence committees. The agency has not acknowledged that the sites exist.

Another Kennedy-sponsored provision would require the White House to give the Senate Intelligence Committee copies of the president's intelligence briefings that discussed Iraq before the U.S.-led invasion. The measure requests the documents from Jan. 20, 2000, through March 19, 2003, covering parts of the Clinton and Bush administrations.

Kennedy is pushing for amendment to show that Congress did not receive the same prewar intelligence that the White House did, as some administration officials have stated. He wants the President's Daily Briefs, or PDBs, as part of a Senate inquiry into the Iraq intelligence.

The intelligence bill, much of which is classified, broadly sets spending for the more than $40 billion U.S. spy agencies.

Congressional aides, who spoke on condition of anonymity while the legislation's status was in flux, said at least one unidentified Republican is objecting to some portion of the bill, which could otherwise be passed unanimously by voice vote. That process would allow the Senate to quickly finish the legislation before the holidays and begin negotiating its differences with the House early next year.

Bill Duhnke, majority staff director for Senate Intelligence Chairman Pat Roberts, R-Kansas, said the senator "is hopeful that we'll have an intelligence authorization bill this year."

The holdup comes as the White House and Sen. John McCain, R-Ariz., ended a standoff over legislation that will ban cruel, inhuman and degrading treatment of foreign suspects in the war on terror.

Kerry's spokeswoman April Boyd noted the Senate already approved his secret prisons amendment on another bill this year. "He would welcome another vote and another strong message from Congress to the administration that they cannot keep Congress in the dark," she said.

On Wednesday, Kennedy said he could find no reason why Congress shouldn't have the presidential briefings "now that the president's insisted that we had all the information."

Democrats on Thursday also circulated a 15-page memo from the nonpartisan Congressional Research Service that said the president and his most senior advisers have access to "a far greater overall volume of intelligence and to more sensitive intelligence information" than Congress.

The memo was written by Alfred Cumming, once a senior aide to former Senate Intelligence Chairman Bob Graham, D-Fla.

http://www.forbes.com/business/commerce/feeds/ap/2005/12/15/ap2396355.html

The HULK

In Re: Sealed Case No. 02-001, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002)
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html <- HTML
http://www.epic.org/privacy/terrorism/fisa/FISCR_opinion.pdf <- PDF

And here are links to a couple more that are related ...

United States v. United States District Court (Keith), 407 US 297

The Government urges that the searches at issue in this case fall within an established exception to the warrant requirement. According to the Government, searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant. The Defendant asserts that such an exception does not exist and should not be recognized by this Court.

The Supreme Court has acknowledged but has not resolved this issue. See United States v. United States District Court (Keith ), 407 U.S. 297, 321- 22 (1972). Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980). . . . No court has considered the contours of such an exception when the searches at issue targeted an American citizen overseas.

US v. Usama Bin Laden, US Dist. Ct., S.D. NY, Dec. 19, 2000, 2000 WL 1858492

This -> http://www.freerepublic.com/focus/f-news/1522162/posts?page=303#303 ...
Moved to an Intelligence Bill. He wants that one moved along. I don't know the title or number of the Intelligence Bill (yet).

did Rockefeller talk...

Not yet.

http://www.freerepublic.com/focus/f-news/1513207/posts?page=1216#1216
http://www.freerepublic.com/focus/f-news/1524772/posts?page=8226#8226

The decision (which the Supreme Court later declined to review) was really not about whether the government could conduct surveillance without warrants, but whether intelligence agencies who already had information could pass information on to the FBI even though the FBI didn't have a warrant. The lower court's decision read, "We do not believe that an expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable."

The difference between the surveillance conducted on Jabara and the surveillance in question now is that, in fact, no surveillance was conducted on Jabara - the NSA was monitoring international communications for certain key words, and intercepting those communications that contained those key words. Some of Jabara's communications were thus intercepted. The issue today is that FISA, the Foreign Intelligence Surveillance Act, deals with "intentional" surveillance, which appears to be what the Bush administration was allowing without warrants, something FISA makes clear is a no-no.

Salisbury v. United States, aff'd, 690 F.2d 966 (DC Cir. 1982).
United States v. Jabara, 644 F.2d 574

I haven't studied any of it, and offer no opinion here.

HEAR ME NOW! Get this! Hear me in the valleys. Hear me in the great plains ....
In the dead of night, a small number of misguided conferees turned their backs ...

Noses. Make the ink brown in color.
That way, the hacking decribed here couldn't happen. ;-)

They are the ones who offered an extension.
It's the majority that refuses to entertain that option.
IMO, the majority will prevail before the end of the year.

Letting it all lapse on December 31 produces real dangers ...

I think the differences between "we have patriot" and "some measures lapse" isn't all that great. Of course, the gap isn't "zero," but I will not feel more at risk if the Patriot Act provisions sunset.

USA Patriot Act Sunset: Provisions That Expire on December 31, 2005
http://www.fas.org/irp/crs/RL32186.pdf

The new act has lots of new provisions.

Starting point to full text of the Patriot Act ...
http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.3162:

LOL. I was just pointing you to a place that would facilite finding the substance of their objections.

I'm weaning myself from making comments on FR -- it's painful ;-)

In order to justify a warrantless surveillance under FISA, the argument boils down to converting a person from "United States person" as defined in subsection (i) to being a "Foreign power" as defined in either (a)(1), (2) or (3).

I don't buy that argument, and believe the power for the warrantless surveillance under discussion will be found elsewhere.

Of course, your mileage may vary.

Media's function is to sell hot dogs and beer.
Here's a link to a transcript of the news conference ...

http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html

Yes.
http://www.freerepublic.com/focus/f-news/1543478/posts <- Here

http://www.freerepublic.com/focus/f-news/1513207/posts?page=1216#1216

I suspect those who assert "didn't get all the details" are comparing what they were told in confidence with what was (perhaps illegally) let out of the bag. HEre's one complaint that rings of "we were told of the technology, but not that the targets would be in the US."

Nevermind the fact that the program is classified; with so few words in play in the reports, it isn't possible to discern precisely what was disclosed and what is actually being conducted.

... recalled a briefing about changes in international electronic surveillance, but does not remember being told of a program snooping on individuals in the United States.

I'm glad you remebered it. It's an interesting point that the subject was brought up during the hearings.

As for "brushing them off," it's the only principled approach. A system of checks and balances is effective only to the extent each of the parties asserts independence in its sphere of competence.

I do think though, that it would be Constitutional for Congress to create a FISA court -and- require advice & consent to populate it. But, once populated, the judges are expected to act independently.

All of the relevant exchanges in the hearings are below. The ultimate questions involve the extent of 4th amendment protection, and how will our system of government regulate the balance between being "secure in our homes" and being "secure from threats."

The rubber meets the road at the point of how far we permit law enforcement to proceed without judicial oversight.

IMO, this is just another area where law is emerging, and it makes sense for law to emerge as we are in a new kind of struggle. Another area relates to "access to Article III courts by Gitmo detainees" (shorthand for a more complex perimeter). I'm sure there are other areas on the limits of government that haven't touched our minds yet; but there is no doubt in my mind that we are headed in the direction of MORE government. And while that is going on, most of the discussions (even in Congress) are reduced to oversimplified soundbite form. Aarrrrgh!!

DURBIN: Your position as Supreme Court justice, chief justice, gives you extraordinary power: to appoint 11 judges on the FISA court, which has the authority to issue warrants for searches and wiretaps of American citizens, all the way to the establishment of rules of criminal and civil procedure. ...

DEWINE: The bad news is, it's the first round.

Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.

Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.

As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.

And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.

So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.

But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in.

ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.

I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.

I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.

This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.

I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.

Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected. ...

LEAHY: Let me switch gears again.

Senator Grassley is not here right now, and Senator Specter and I have worked for several years to shed some light on the FISA court, the foreign intelligence court.

A lot of Americans are affected by their decisions. Most Americans don't know how it works, don't know whether their civil liberties are being curtailed or violated. We added some sunshine provision. The attorney general now submits a biannual report to four congressional committees, details how many people are the target of electronic surveillance and so on. It's still inadequate in the fact it doesn't get public reporting.

If you're confirmed as chief justice, you're the overseer of the FISA court. Most people don't even look at that role of the chief justice. I think it's probably one of the most important ones if you're going to talk about the liberties and how they're protected.

Would you be willing to work with members of Congress to add more transparency, or do you believe there's enough transparency in the work of the FISA court now?

ROBERTS: Senator, you said you think this is something most Americans aren't aware of. I suggest probably most judges aren't aware of...

LEAHY: Well, that's probably so.

ROBERTS: It is a specialized court. I will tell you when I became aware of it, it's a surprising institution. It's an unusual set-up.

LEAHY: Certainly different than what we think in our system of...

ROBERTS: That was exactly my reaction.

On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way.

I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties.

That I think is very important.

Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.

LEAHY: And I'd hope -- my time is up. I apologize. But I'd hope that, if you are confirmed, that you might be willing -- and I think Senators Grassley, Specter, and myself could put together some suggestions -- at least keep an open mind on it.

ROBERTS: Certainly, Senator.

LEAHY: Because in an electronic age, in a digital age when more and more information is being pulled in on Americans that we sometimes don't even know about, it is frightening. We want security, but we want to be like -- as Benjamin Franklin said, a people who'd give up their liberties for security deserve neither. Thank you.

Be sure to read the thread, not just the initial post.

Well, I'm not a lawyer. I confess I did miss the omission of 1801(a)(4). You guys may be right about this, in which case the statute may not be applicable, or is at least questionable.

41 posted on 12/19/2005 8:14:38 AM EST by angkor

The NYT article provided at least one example - the guy who was planning to use a torch to cut cables on the Brooklyn Bridge. He plead guilty.

There is another one relating to a mall bomber.