Thursday, July 18, 2013







This morning, US House Rep Ted Deutch noted he worries "about the balance between legitimate security needs and the constituationally protected rights of all Americans" and declared, "I believe it's time to rexemine the Patriot Act, insert greater accountability into the FISA court and ensure our laws cannot be interpreted behind the backs of the American public."

He was speaking at the House Judiciary Committee hearing on FISA.  The Committee Chair is Bob Goodlatte and the Ranking Member is John Conyers.  The first panel was made up of DoJ's James Cole, NSA's John C. Inglis, Office of Director of National Intelligence's Robert S. Litt and the FBI's Stephanie Douglas.  The second panel was Steptoe & Johnson, LLP's Stewart Baker, the ACLU's Jameel Jaffer and CNSS' Kate Martin.

Storyteller Stewart Baker  babbled before the House Judiciary Committee and made the claim that FISA was 'constrained' under Bill Clinton and this resulted in the "wall" between intelligence and law enforcement which prevented the capture of the 9-11 hijackers.  Jamie Gorelick, tear down this wall!  Are we really back to that nonsense?  (If there was a wall, it dates back to the Reagan era.)  Baker loves fairy tales.  Let's deal with how the so-called wall allegedly caused 9-11.  From SourceWatch:

Coleen Rowley, who served as chief counsel of the FBI's Minneapolis field office, "in a 13-page memo, outlined how FBI headquarters thwarted agents' attempts to investigate Zacarias Moussaoui, the alleged 20th hijacker. The 'bombshell memo' led bureau chief Robert Mueller to reorganize the agency. Rowley testified before the Senate Judiciary Committee in June about the FBI bureaucracy that frustrates agents' attempts at innovative investigation and mires them in paperwork." [1]

 From Rowley's May 21, 2002 letter to FBI Director Robert Mueller:

1) The Minneapolis agents who responded to the call about Moussaoui's flight training identified him as a terrorist threat from a very early point. The decision to take him into custody on August 15, 2001, on the INS "overstay" charge was a deliberate one to counter that threat and was based on the agents' reasonable suspicions. While it can be said that Moussaoui's overstay status was fortuitous, because it allowed for him to be taken into immediate custody and prevented him receiving any more flight training, it was certainly not something the INS coincidentally undertook of their own volition. I base this on the conversation I had when the agents called me at home late on the evening Moussaoui was taken into custody to confer and ask for legal advice about their next course of action. The INS agent was assigned to the FBI's Joint Terrorism Task Force and was therefore working in tandem with FBI agents.
2) As the Minneapolis agents' reasonable suspicions quickly ripened into probable cause, which, at the latest, occurred within days of Moussaoui's arrest when the French Intelligence Service confirmed his affiliations with radical fundamentalist Islamic groups and activities connected to Osama Bin Laden, they became desperate to search the computer lap top that had been taken from Moussaoui as well as conduct a more thorough search of his personal effects. The agents in particular believed that Moussaoui signaled he had something to hide in the way he refused to allow them to search his computer.
3) The Minneapolis agents' initial thought was to obtain a criminal search warrant, but in order to do so, they needed to get FBI Headquarters' (FBIHQ's) approval in order to ask for DOJ OIPR's approval to contact the United States Attorney's Office in Minnesota. Prior to and even after receipt of information provided by the French, FBIHQ personnel disputed with the Minneapolis agents the existence of probable cause to believe that a criminal violation had occurred/was occurring. As such, FBIHQ personnel refused to contact OIPR to attempt to get the authority. While reasonable minds may differ as to whether probable cause existed prior to receipt of the French intelligence information, it was certainly established after that point and became even greater with successive, more detailed information from the French and other intelligence sources. The two possible criminal violations initially identified by Minneapolis Agents were violations of Title 18 United States Code Section 2332b (Acts of terrorism transcending national boundaries, which, notably, includes "creating a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States") and Section 32 (Destruction of aircraft or aircraft facilities). It is important to note that the actual search warrant obtained on September 11th was based on probable cause of a violation of Section 32.1 Notably also, the actual search warrant obtained on September 11th did not include the French intelligence information. Therefore, the only main difference between the information being submitted to FBIHQ from an early date which HQ personnel continued to deem insufficient and the actual criminal search warrant which a federal district judge signed and approved on September 11th, was the fact that, by the time the actual warrant was obtained, suspected terrorists were known to have highjacked planes which they then deliberately crashed into the World Trade Center and the Pentagon. To say then, as has been iterated numerous times, that probable cause did not exist until after the disasterous event occurred, is really to acknowledge that the missing piece of probable cause was only the FBI's (FBIHQ's) failure to appreciate that such an event could occur. The probable cause did not otherwise improve or change. When we went to the United States Attorney's Office that morning of September 11th, in the first hour after the attack, we used a disk containing the same information that had already been provided to FBIHQ; then we quickly added Paragraph 19 which was the little we knew from news reports of the actual attacks that morning. The problem with chalking this all up to the "20-20 hindsight is perfect" problem, (which I, as all attorneys who have been involved in deadly force training or the defense of various lawsuits are fully appreciative of), is that this is not a case of everyone in the FBI failing to appreciate the potential consequences. It is obvious, from my firsthand knowledge of the events and the detailed documentation that exists, that the agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and his possible co-conspirators even prior to September 11th. Even without knowledge of the Phoenix communication (and any number of other additional intelligence communications that FBIHQ personnel were privy to in their central coordination roles), the Minneapolis agents appreciated the risk. So I think it's very hard for the FBI to offer the "20-20 hindsight" justification for its failure to act! Also intertwined with my reluctance in this case to accept the "20-20 hindsight" rationale is first-hand knowledge that I have of statements made on September 11th, after the first attacks on the World Trade Center had already occurred, made telephonically by the FBI Supervisory Special Agent (SSA) who was the one most involved in the Moussaoui matter and who, up to that point, seemed to have been consistently, almost deliberately thwarting the Minneapolis FBI agents' efforts (see number 5). Even after the attacks had begun, the SSA in question was still attempting to block the search of Moussaoui's computer, characterizing the World Trade Center attacks as a mere coincidence with Misseapolis' prior suspicions about Moussaoui.2

That's some of the letter.  It is not about a 'wall,' it is about people not doing their jobs.  That was too much reality for someone who chose to tell a fairy tale. 

Ranking Members John Conyers was a rare bright spot on the hearing.  He noted, for example, of the secret spaying, "If it weren't for a couple of people leaking, we wouldn't know any of this, as far as I'm concerned."

His concerns included the legality of the collecting of data, more so than "the uses to which it is put."  He declared tracking everyone in the country "for at least six years" was "probably the most disturbing aspect."

As noted Jameel Jaffer (ACLU) testified.  He has posted his prepared testimony (opening remarks) and we'll note it:

Over the last six weeks it has become clear that the NSA is engaged in far-reaching, intrusive, and unconstitutional surveillance of Americans' communications.

  • Under Section 215 of the Patriot Act, the NSA is tracking every single phone call made by a resident of the United States—who they called, when they called them, for how long they spoke. Until recently it was tracking ordinary Americans' Internet activity as well.
  • Under Section 702 of FISA, and on the pretext of monitoring people outside the United States, the NSA is using Section 702 of FISA to build massive databases of Americans' domestic and international communications—not just so-called metadata, but content as well.
These programs have been made possible by huge advances in the technology of surveillance, but in many respects they resemble the generalized surveillance programs that led to the adoption of the Fourth Amendment more than two hundred years ago. The FISA court orders resemble general warrants, albeit general warrants for the digital age.
That the NSA is engaged in this unconstitutional surveillance is the result of defects both in the law itself and in the current oversight system.

  • The Foreign Intelligence Surveillance Act affords the government sweeping power to monitor the communications of innocent people.
  • Excessive secrecy has made congressional oversight difficult and public oversight impossible.
  • Intelligence officials have repeatedly misled the public, Congress, and the courts about the nature and scope of the government's surveillance activities.
  • Structural features of the Foreign Intelligence Surveillance Court have prevented that court from serving as an effective guardian of constitutional rights.
  • And the ordinary federal courts have improperly used the "state secrets" and "standing" doctrines to place the NSA's activities beyond the reach of judicial review.
To say that the NSA's activities present a grave danger to American democracy is not an overstatement. Thirty-six years ago, after conducting a comprehensive investigation into the intelligence abuses of the previous decades, the Church Committee warned that inadequate regulations on government surveillance "threaten[ed] to undermine our democratic society and fundamentally alter its nature." This warning should have even more resonance today than it did in 1976, because in recent decades the NSA's resources have grown, statutory and constitutional limitations have been steadily eroded, and the technology of surveillance has become exponentially more powerful.
Because the problem Congress confronts today has many roots, there is no single solution to it. But there are a number of things that Congress should do right away:

  • It should amend Sections 215 and 702 to expressly prohibit suspicionless or "dragnet" monitoring or tracking of Americans' communications.
  • It should require the executive to release basic information about the government's use of foreign-intelligence-surveillance authorities, including those relating to pen registers and national security letters. The executive should be required to disclose, for each year:
    • How many times each of these provisions was used
    • How many individuals' privacy was implicated by the government's use of each provision
    • And, with respect to any dragnet, generalized, or bulk surveillance program, the types of information that were collected.
  • Congress should also require the publication of FISA court opinions that evaluate the meaning, scope, or constitutionality of the foreign-intelligence laws. The ACLU recently filed a motion before the FISA court arguing that the publication of these opinions is required by the First Amendment, but Congress need not wait for the FISA court to act. Congress has the authority and the obligation to ensure that Americans are not governed by a system of secret law.
  • Finally, Congress—and this Committee in particular—should hold additional hearings to consider further amendments to FISA, including amendments to make FISC proceedings more transparent.
Congress should not be indifferent to the government's accumulation of vast quantities of sensitive information about American's lives. This Committee in particular has a crucial role to play in ensuring that the government's efforts to protect the country do not compromise the freedoms that make the country worth protecting.
Thank you.

Many, like Chair  Gooelatte, didn't grasp why the officials continued to insist that thei was a foreign affairs matter when it came to spying on Americans making phone calls or sending e-mails to other Americans, and both parties being inside the United States?  Many words were used to justify that, none of which made sense.

What's the take away?  US House Rep Blake Farenthold noted that the Fourth Amendment was seen as not being violated by the spying and the First Amendment was not seen as being violated by the spying so possibly the only time he has a reasonable expectation of privacy is with "a letter i hand deliver to my wife in a schiff,"

Recommended: "Iraq snapshot"
"Holy month hit by non-stop violence"
"They go after whistle-blowers, don't they?"
"House Judiciary Committee hearing"
"Hillary Is 44"
"Ms. magazine's bad blog post"
"Proof that we should be thanking Ed Snowden (Wally)"
"FISA rulings"
"Michael Kors and Rolling Stone"
"Adam Kokesh"
"Who needs jobs!"