Where were we? Oh yes. The FISA update. The topic which made me so hated. The law you all know so much more about than I do, even though you refuse to read it. Shall I link to it one last time, for your non-reading pleasure? But of course. After all, we have certain rituals around here. It's a Lucy-and-the-football kind of thang. Oh, and here is my original piece.
I've finally found someone else out there willing to do more than to parrot what he or she has read in the New York Times or the Washington Post. When you want nitty-gritty details, Marcy Wheeler will deliver up the nittiest and grittiest. At last, she talks about the minimization procedures, the built-in Fourth Amendmen protections.
Cannon's rule: Any piece that discusses FISA without using the word "minimization" is inadequate. Marcy has given us a piece that is way more than adequate -- in fact, it is bloody great. She even titles it Minimization.
As I understand it, S1927 (I'm working with the version that passed--I haven't checked whether the requirements for minimization changed in the three versions of the bill)--requires very little in the way of minimization requirements. The government must only certify that its program meets the existing definition of minimization procedures, and that any collection accord with those minimization procedures. There is no requirement that the government reveal its minimization procedures, nor that someone--the judge or Congress--review them.Thank you, thank you, thank you Marcy. But matters go far beyond that.
It requires the government to certify thatthe minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).An acquisition under this section may be conducted only in accordance with the certification of the Director of National Intelligence and the Attorney General, or their oral instructions if time does not permit the preparation of a certification, and the minimization procedures adopted by the Attorney General.[my emphasis]
It requires any collection of information to meet the Attorney General's minimization procedures.
Did you know that the President's lawyer's argue that he can sidestep all minimization procedures -- and thereby sidestep the Fourth Amendment?
(To read the rest, click "Permalink" below)
Before we deal with this potential assault on the Bill of Rights, let me give thanks unto Marcy three more times for her heroic attempt to deal with the minimization procedures as they existed in the alternative versions of the bill.
I would only point out that the minimization procedures are the same as they always were; they have not been redefined. I think this is what the emphasized words in that final afore-quoted paragraph come to.
However, I have made these points from the beginning:
1. Minimization must be strengthened. The real flaws are in the original bill, and they have been with us since 1978.
2. Oversight must much stronger. This, I believe, is Marcy's main point.
Perhaps now that the wonderful Wheeler has finally come to conclusions which mirror, in essence, what the cantankerous Cannon has said from the beginning, my readers will be kind enough to pay some attention to what I actually wrote, as opposed to what they think I wrote. Hell, a few of you might even be inspired to read the law.
(I pause for laughter.)
And now, on to the case of Dubya v. The Fourth Amendment.
Quite a few of you were justifiably bothered and outraged by a paragraph in a recent NYT story which revealed that the President views this law as advisory, not mandatory. Few people understand that Bush takes this outrageous position vis-a-vis the original FISA law, not just the update.
The news gets worse -- and it goes way beyond FISA.
The President takes a similar attitude toward all legislation that would restrict the power of the executive branch. In his view, or at least in the view of his lawyers, Article II of the Constitution grants the President such sweeping authority that no congressional scribblings can bridle his behavior -- not unless he agrees to be bridled.
This was also the argument posed by Anonymous Liberal, an unnamed litigator with whom I sparred over on Crooks and Liars. (You'll have to pan way, way down for the good stuff.) I thought AnonLib's position on Article II was goofy. I still think so. And yet his position is the position of the All the President's Lawyers.
What does that position come to? This: Most laws affecting the executive branch take the form of saying "The executive branch may do thus-and-such if certain conditions are met." (As in: The AG may scoop up foreign/domestic chats if minimization procedures are recognized.)
Now, you and I and our congressfolk understand the "may-if" formula in a straighforward "plain English" fashion. When you tell your kid "You may watch TV if you do your homework," he understands that no homework = no TV. If I hold a gun to your head and tell you that you may live if you start singing a Beatles tune, you won't argue over the wording; you'll start belting Hey Jude.
But that's not how some lawyers view the "may/if" phrasing.
AnonLib argued, in essence, that "may" is amorphous. The word means "Here is one way the President can snoop on foreign chats. He may choose the method recommended by Congress. Conversely, he may choose to do it another way -- a way unmentioned by Congress. He may choose to avoid those nasty congressional restrictions altogether. It's all up to the Prez. Does he feel like observing the law today?"
In other words, the "may/if" formula does not mean "may/if-and-only-if."
I'm not kidding. The President's lawyers really do believe in this bizarre misuse of the English language. And that is why they argue -- have always argued -- that the original FISA law applies to Dubya only at his whim.
Concocting a law that the President cannot escape thus becomes a very difficult matter. Remember that episode of the X-Files where Mulder has to phrase his wish in such an ultra-careful fashion that the genie cannot turn it against him?
Does Congress accept this outrageously broad view of presidential power under Article II? I think not.
So why is Bush asserting such power? Obviously, he must have stepped way outside the boundaries of FISA regulations -- and I'm talking about any and all iterations of FISA.
"Such as...?" you ask.
I don't know, but here's my guess: Spying on political opponents.
Enough writing; enough sitting. The sciatica's acting up again. Don't know when I'll be able to return to the Captain's chair, but I hope the hiatus won't last too long. I miss being (as opposed to having) a pain in the butt.
9 comments:
ah, the maestro returns! welcome back, and thanks for this exposition. i had glanced over marcy's magic, and hoped you would add your spice to it, as well. amazing, as ever.
if you examine the 'may/if' language carefully, you see what the lawyers are doing is shifting the agent in the normal understanding of the phrase from the one who establishes the contingency to the one to whom it is being applied.
sort of like the kid hearing the directive from his dad about TV if homework gets done, then deciding that what this really means is that he can not only watch TV behind his dad's back, but cruise the strip after midnight, if he feels like it, homework be damned.
all of which exposes the central problem in their thinking: they completely lose sight of the intention of the founding fathers to place and keep the power of governing in the hands of the people and our representatives, and out of the hands of a central figure who is not accountable to us.
they ignore that issue of 'consent of the governed' and focus on 'consent of the bossman.' they are the hangers on who would reinstate a king, and they have no democratic sensibilities whatsoever.
so glad you're feeling better! but don't overdo it; take care of yourself. talk to you tomorrow....
You have all my sympathy, and I know something about this condition. Get well soon.
Harry
Joe,
Hope you feel better soon. I miss you being a pain too!
Scott Horton is a NY attorney who has a weblog called No Comment over at Harper's
http://www.harpers.org/subjects/NoComment
Horton has been researching the conviction of Don Siegelman, former Governor of Alabama among other things. He has a very interesting blog and has been recently speaking on AirAmerica and Democracy Now.
"Starting June 1, 2007, I have been following the strange case of former Alabama Governor Don Siegelman, currently imprisoned on a conviction of charges of bribery, conspiracy and mail fraud. Siegelman's case has ramifications far outside of Alabama. It connects to Karl Rove, the Department of Justice under Alberto Gonzales, and to the corruption of our news media by political interests."
He believes that in the coarse of the illegal wiretapping scheme, the Telecom companies insisted that the Justice Department signs (mandate?..order?...) releasing them from their 4th amendment obligations and that the "mysterious hospital visit" was directly related to this issue. Apparently, Ashcroft would not do it and after the attempt failed to garner his signature, the Bush Administration decided to replace him with Gonzo in order to satisfy the Telecom companies requirement and therefore their cooperation.
This theory seems as good or better than any I have heard and Horton seems like the kind with a good nose and even better tenacity for uncovering the truth. It seems like Horton also agrees with Joe and others that the real purpose of all this datamining might have been to derail the political system and control elections.
As Mr. Bumble said, the law is a ass... an idiot.
Among the law's many deficits, or, for its professionals and acolytes, assets, is that it not infrequently has a meaning quite different from a naive layperson's reading of the words of the text. Common English phrases become terms of art, and have special connotations that are not apparent on the face of the text, necessitating knowledge of the historical context and prior court ruling precedents to know exactly what is meant, or will be interpreted as meant, if you will.
It's well known that sometimes changing only an article (a 'the' to an 'a'), or changing a comma placement, causes potentially major changes in the interpretation of the law. Indeed, many a legislative or international treaty negotiation involves strenuous argumentation to accomplish just such 'minor' changes, because the effects are that significant. No, not significant at all perhaps to the untrained eye, but nonetheless making a crucial difference to the inbred priesthood which interprets such laws.
So, to some degree, Joe's challenge to 'read' (to compare and contrast) the two laws is a mug's game, if one lacks the perspective of knowledge of the change in context, and thereby doesn't see the semi-unnoticeable but highly significant changes.
The most important contextual change, of course, is the "unitary executive in time of war"-doctrine asserted by Bush. Yes, if the original FISA law had been enacted in the context of such a bold declaration of plenary, near- or actual dictatorial presidential powers, it would have created gaping holes in the previously understood and agreed upon Fourth Amendment protections. However, at that time, no president had asserted such broad discretion to ignore duly enacted laws. Or, if the law was to apply to routine criminal matters as well as foreign intelligence surveillance, that again would have vastly stretched its reach and application and grossly increased its encroachment on Fourth Amendment protections. But again, that is a novel development, one even this administration denied they'd use or abuse (although they've now admitted doing so some hundreds of times, and suspected bad faith representations to the FISA court in pursuit of subjects not suspected of terrorism was the reason for the handful of FISA warrant request denials by the court. Reading between the lines, this may indeed be a critical predicate for why the Bush administration evidently circumvented the FISA court altogether-- they wanted to use techniques disallowed except under FISA court exceptions to the general law without FISA court permission, because their targets did not meet the previously understood FISA requirements. Not that it was therefore political opponents, necessarily, but anybody who failed to meet the prior existing criteria.)
In the linked discussion with Anonymous Liberal, he/she has enumerated additional seemingly slight wording changes that substantially change significant features of the status quo ante of the FISA law. These include limiting its application to only 'electronic surveillance' as defined in the revised statute (whereas the prior law applied to all foreign intelligence surveillance gathering, not simply electronic surveillance), broadening its allowed application to include suspected 'terrorism-RELATED' matters (colorably, anything, depending solely upon unreviewable and undisputable DOJ/AG claims) rather than only for suspected terrorists, changing the exclusivity language, and etc.
So, under the pretext agreed by all or most to be necessary-- amending the FISA law to allow eavesdropping in the relatively novel technological situation wherein those suspected of terrorism in a foreign country use methods of communication which now happen to flow through electronic switches located in the United States-- this revision additionally weakened this law's limitations on government (i.e., expanded the government's purported lawful reach) in several ways, at the very time when the Congress and the people have received ample notice of this new and aggressive intent of the chief executive to do whatever the hell he wants regardless of laws.
In my view, it is manifestly untrue that all these lacunae in Fourth Amendment protections were already present in the law as of '78, given how the language was interpreted uniformly by all presidents and the courts from then until this current administration, even given the revisions in the law over the years. Substantially more is now allowed on the face of this law than before, and not just in the technical matter of foreigners' communications flowing through domestically based electronic switches.
The 'back story' is that Bush's Director of National Intelligence McConnell engaged in apparently bad faith negotiations (perhaps not, as he may have been sand-bagged as well), and made representations to Congress in the reasonable and universally agreed to effort to gain lawful access to the domestically-switched foreign communications, only to have the administration renege on the deal he had been discussing. As is their wont, the Bush administration demanded an all or nothing capitulation to their more extreme position (all these ancillary changes which were not required to accomplish the minor technical fix that all agreed was necessary). And the Democratic leadership, allegedly spooked by highly classified briefings of an imminent terrorist attack here in America, decided that, prior to the summer recess, they could not block the Bush demands, counter-argue and hang tough for a more limited change, and thereby face potential blame for the attack from Bush for not allowing him his maximalist position, while also not fixing this technical problem in the law.
This appears to be the simple truth of this matter, and attempting to deny what the Democratic leadership did by arguing a creative construction of the effect of the '78 act in today's context, and denying that significant changes in the law have vastly empowered the administration under color of statute, can perhaps be best interpreted as carrying water for the Democrats for narrow partisan purposes.
sofla
I'm just curious: what's the point of discussing the details of a law if the Bush Junta doesn't follow the law anyway ? The exact wording doesn't matter much when you know they will warp its meaning to accomodate what they want to do.
Joseph, I appreciate your interest in this subject, but I still think there are a few things you are confused about.
First, you are misundertanding my "may/if" point. Before FISA existed, courts had held that the president could, on his own authority, authorize warrantless surveillance for foreign intelligence purposes. But just because a president has the Article II power to do something in the absence of a statute, doesn't mean Congress doesn't have the right to restrict that power through legislation. That's what FISA was. It was Congress saying "if you're going to do this, you have to do it this way." And to make this intention absolutely clear, Congress stated explicitly that FISA was to be the "exclusive means" for conducting this kind of surveillance. So old FISA was in no way ambiguous on this point. It was not intended to be optional, and no court would have held it to be optional.
Now, some hardcore true believers in executive power (Cheney/Addington types) have always thought FISA was unconstitutional in this regard, that the president's article II powers re: surveillance are exclusive and cannot be limited by Congress. There's no case law or constitutional language to support this, but it's what they believe.
After 9/11, Bush adopted this theory and used it to authorize the exact kind of surveillance that FISA forbids. This was not based on a cute reading of the statute, but rather on a theory that the Constitution trumps the statute.
Now, the new FISA bill, through its definitional games, removes from the scope of the "exclusive means" clause the very warrantless surveillance it then authorizes. So under the new statutory scheme, the warrantless surveillance procedures laid out in 105B are not the "exclusive means" for conducting such surveillance.
So now, Bush doesn't have to rely on his Article II trumps everything theory (which has no merit) and can instead simply point the statutory language, which by its terms, is non-exlusive. The procedures under 105B (including minimization) really are optional at this point.
Moreover, as Marcy points out, these minimization procedures are unreviewable under the new bill. The AG has unreviewable discretion to determine what is adequate.
The Dems tried to pull a fast one by practically sneaking this monstrosity into law. They knew what they were doing, they knew it was wrong and that the base would be infuriated,(especially considering the power handed over to AGAG when he had been steadily perjuring hiself and deserved impeachment. Who thinks he'll get impeached after this whorish move?) and they did it anyway. The deception and underhanded tactics involved and laid out at the link prove this.
Cowardly or complicit? You decide.
Cannon says,
Where were we? Oh yes. The FISA update. The topic which made me so hated. The law you all know so much more about than I do, even though you refuse to read it. Shall I link to it one last time, for your non-reading pleasure? But of course. After all, we have certain rituals around here. It's a Lucy-and-the-football kind of thang. Oh, and here is my original piece.
We say
You really really don't get it Cannon..it's not the letter of the law that we are railing against..it is the Spirit of what is happening all around us. The law is almost irrelevant mostly because the pricks in the White house could care less about laws. They are pushing for a Putsch and have accomplished everything on their course so far because the so called "opposition" has melted into a slimy maggot infested polluted puddle, swarming with toxic platitudes and fevered rants..that's why we are demanding change and a sleansing, .with or without you so called
" bloggerist liberals". (Not really Liveral at all just tethered to the coattails of the Fascists on elephants). In fact the liberal intellectuals like you that insist on defending the illusions and the past heroes of the Democratic Party (like engravings on the legal tender of today..just icons), are propping up only the Establishment game plan of "give the unwashed the illusion of political conflicts and debate, and they will be happy..like the circus they prefer and are used too".
But we are wiser now (we struggled through this very same horrible blood letting script after Kennedy's assassination and the ten year holocaust we call Vietnam) and we are finished with the Barnum and Bailey, stinky, circus atmosphere, where the black magicians are conjuring and hypnotizing the befogged audiences.
Evil is afoot, even though today they are in in the drovers seat, in their Road Warrior military surplus machines,, criss crossing the patchwork quilt of "pre election day",United States, we, angelically and surreptitiously put sugar in their gasloline tank and they will not survive crossing Death Valley to the finish lline.
WARNING : that comment above links to a scam !
There is one similar in an earlier post, down, couple of days ago.
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