If Only Democrats Controlled The House...

Poor Nancy Pelosi - never (today, anyway)  have I seen so much whining in an article about newly passed legislation:

House Passes Changes in Eavesdropping Program

By CARL HULSE and EDMUND L. ANDREWS

WASHINGTON, Aug. 4 — Under pressure from President Bush, the House gave final approval Saturday to changes in a terrorism surveillance program, despite serious objections from many Democrats about the scope of the executive branch’s new eavesdropping power.

Racing to complete a final rush of legislation before a scheduled monthlong break, the House voted 227 to 183 to endorse a measure the Bush administration said was needed to keep pace with communications technology in the effort to track terrorists overseas.

“The intelligence community is hampered in gathering essential information about terrorists,” said Representative Lamar Smith, Republican of Texas.

The House Democratic leadership had severe reservations about the proposal and an overwhelming majority of Democrats opposed it. Speaker Nancy Pelosi said the measure “does violence to the Constitution of the United States.”

But with the Senate already in recess, Democrats confronted the choice of allowing the administration’s bill to reach the floor and be approved mainly by Republicans or letting it die.

If it had stalled, that would have left Democratic lawmakers, long anxious about appearing weak on national security issues, facing an August spent fending off charges from Republicans that they had left Americans exposed to threats.

Despite the political risks, many Democrats argued they should stand firm against the initiative, saying it granted the administration far too much latitude to initiate surveillance without judicial review.

They said the White House was using the specter of terrorism to weaken Americans’ privacy rights and give more power to Attorney General Alberto R. Gonzales, an official Democrats say has  proved himself untrustworthy.

“Legislation should not be passed in response to fear-mongering,” said Representative Rush D. Holt, Democrat of New Jersey.

Ohhh, pauvre petites... My goodness, if the bill is that bad, don't pass it and deal with the consequences.  Ooops, that would almost look as if the House leadership had the courage of their convictions; my bad.

I love this wrinkle to the political calendar:

Senior House Democratic leaders said they were resigned to the measure, which will be in force for six months. But they said they would not wait that long before trying to come up with a more acceptable, permanent change in the Foreign Intelligence Surveillance Act.

“There is no way we are ever going to wait six months,” said Representative Rahm Emanuel of Illinois, chairman of the House Democratic Caucus.

Six months from now is early February 2008.  The Iowa caucuses seem to be set for January 2008 - do we suppose Hillary and Barack want to be voguing for votes by having to deal with this issue just as the primary season commences?  I'll bet Rahm Emanuel will be delighted to help by getting that done just before the Christmas recess when nobody is looking.

But perhaps some sinister Republicans will derail his plans and force the leading Dems to flash their national security credentials under the bright lights of the primaries.  And perhaps John Edwards, if he has supporters in the Senate, will find Dems to help delay the vote until January 2008 - after all, he is out of the Senate after six arduous (but educational!) years so he has nothing to lose by criticizing the votes of others.

The LA Times and WaPo have background on the FISA Court ruling that may have been the spur to this legislation.  From the WaPo:

A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration's wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president's spying powers.

...The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.

Comments

[anduril]

What nobody is willing or able to tell us about the secret court ruling is 1) how the issue came before the FISC--the judge's own decision or did someone else bring the matter to the judge's attention-- 2) whether the Government challenged the constitutionality of FISA, and 3) whether the Government appealed the ruling.

Am I the only person who's uncomfortable with this whole FISA setup? I mean, outside of its full frontal assault on the concept of separation of powers, just this whole business of courts making secret rulings on laws (and possibly the constitution) regarding matters that are of great concern to every person in this country, as if our opinions don't matter. When it comes to national security one would like to have some accountability. Fortunately Bush forced the Dems to put up or shut up by threatening to make them accountable. Well, they never really shut up, but...

[anduril]

Oh, looks like someone else wants answers to some questions surrounding the case:

Report: FBI Searches Home of Attorney in Warrantless Wiretap Program Case Fox News ^

Posted on 08/05/2007 2:16:03 PM PDT by Sub-Driver

Report: FBI Searches Home of Attorney in Warrantless Wiretap Program Case

Sunday , August 05, 2007

AP

WASHINGTON — FBI agents searched the home of former Justice Department lawyer Thomas Tamm last week in an effort to determine who leaked details of the warrantless eavesdropping program to the news media, Newsweek magazine reported Sunday, citing two anonymous legal sources.

The agents, who had obtained a classified search warrant, took Tamm's desktop computer, two laptops belonging to his children and some of Tamm's personal files, said Newsweek, which granted anonymity to the two sources because they did not want to be identified talking about an open case.

Tamm left the department last year. He had worked in the department's Office of Intelligence Policy and Review, a secretive unit that oversees surveillance of terrorist and espionage targets, according to Newsweek.

(Excerpt) Read more at foxnews.com ...

[PaulL]

Hmm, now how is it again that the worst President in history, with record low polling, can force a tough-and-smart Democrat-controlled Congress to do his bidding? Was it the Haliburton-generated mind-control rays?

If Mrs. Clinton becomes President, no one with any sense whatsoever will be surprised when she takes extra power for the Executive. It's vital, she'll say, because she has to rectify all the problems caused in eight years by the previous administration. The media will be all for it, then, praising her boldness and assertiveness.

[PaulL]

***Am I the only person who's uncomfortable with this whole FISA setup?***

No, I am too, so that makes at least two people.

I did not care for the President backing down on this matter of having the inherent power to do this, but I think he figures it doesn't matter what stupid agency or committee it has to go through, as long as it gets done. Since FISA was worshiped by the Dems, all the better if Bush could renovate it to his liking.

[maryerose]

Gutless wonders our dems-all talk and no action. Well President Bush punched their ticket and when push comes to shove they know not to keep America safe is an inherently bad idea. Their base hates it but the general population is for more not less security.
OT: Hil at Kos still wants that Lobbyist money because without it she's toast! Obama has the internet so she got to get money from somewhere since Oprah has all but adopted Obama.
Chuckie boy appears to LOOVE those hedge funds that contribute to the Dem Sen committee even though it conflicts with the usual dem meme.

[TerryeL]

Let me get this straight, some judge comes up with the ruling that it takes a warrant to do surveillance on a phone call between Paris and Tikrit, if it is routed through the US?

That is ridiculous. Can you imagine in WW2 FDR worrying about how some judge felt about the OSS spying on the Nazis or the Japanese or anyone they thought might be dealing with the enemy? We had a Constitution back then for heavens sake and the Democrats had no problem with FDR monitoring all long distance calls during WW2.

I think Bush tried to get Congress to deal with this so that they would have to be a part of the process rather than just bitch about it, and to make it law, something that is not just dependent on his signing an executive order. After all, he won't be president forever. BTW, Clinton and Obama both voted against the measure.

[maryerose]

TerryeL:
That makes wrong vote #2 for both Obama and Hil. First they defund the troops then they make America less safe by voting against increased surveillance. This will come back to bite them in 08 when they try to sound tough on terrorism and convince voters that they support the troops. They can't spin these votes away. Just like Kerry and Edwards could not take back their vote against additional defense money.

[Sara]

Let me get this straight, some judge comes up with the ruling that it takes a warrant to do surveillance on a phone call between Paris and Tikrit, if it is routed through the US?

It is worse than that TerryL if I understood what was said yesterday on some discussion about the issue. I don't recall what station.

If an AQ terrorist calls another AQ terrorist in Iraq and tells him they are going to blow up, say, the Golden Mosque in the morning at 10 am, and the call happens to get routed through the U.S., the Generals and Commanders on the ground would have to get FISA permission to act on this info, if they ever got a chance to hear it in the first place.

It is ridiculous with today's modern technology to have this stupid restriction.

A friend and I did a pingback when we were testing an Internet phone setup and both our calls were routed around the world, hitting nodes or whatever in several foreign countries before they got back to our respective computers and he and I were sitting in the same room when we did the test.

[PeterUK]

Since there are many computer savvy terrorists out there,and there is a large scale awindle in international calls,it is odds on they will make damn sure anything important gets routed via the US.
What do you expect FISA wall the child of Mullah Cartah.

[MikeS]

Can you imagine in WW2 FDR worrying about how some judge felt...

How about stealing a German Enigma Machine and listening in to their secret messages for years? And, in the Pacific, using decoded Japanese messages to defeat them at Midway!

This whole privacy thing is being carried too far. How 'bout we listen in and, if a Judge rules we had no probable cause, then we can't use the tape against them at their tribunal?

[PeterUK]

If the gallant Poles had not handed their cryptogphy research to Britain and France before the war and instead given to the US, would the New York Times of the day have run the details on the front page?

[MikeS]

would the New York Times of the day have run the details on the front page?

Not sure. Wasn't the NYT a real newspaper back then?

[lurker]

So now the Democrats cannot continue to go after Alberto Gonzales after last weekend's votes.

[anduril]

Uh-oh, PeterUK, don't get me goin'.

[Cecil Turner]

That is ridiculous. Can you imagine in WW2 FDR worrying about how some judge felt about the OSS spying on the Nazis or the Japanese or anyone they thought might be dealing with the enemy?

Especially if they were spying on the enemy, and only listening in to calls from known enemy locations. It is ridiculous, and I suspect that's why the Dems caved. This is not the issue the Dems want on the front page during election season.

[clarice]

The only other thing I've found on Tamm is that he was a prosecutor on a well-known witchcraft murder case in this area--a case which I believe was written into an episode of "Homicide".
http://64.233.167.104/search?q=cache:m_RArYstKX4J:wwrn.org/sparse.php%3Fidd%3D9416%26c%3D22+Thomas+Tamm&hl=en&ct=clnk&cd=1&gl=us>Witchcraft

[boris]

Hence the wisdom of sorting out such issues in the elected branches rather than the judicial. Found this somewhere and saved it because it expresses my sentiments rather well on the subject. The elected branches are accountable to the public on issues regarding national security decisions and the public's protection. 1948 Chicago & Southern Air Lines decision ...

The very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

Leveraging politicians into protecting themselves by protecting the country is exactly how it's supposed to work.

[cathyf]

If the gallant Poles had not handed their cryptogphy research to Britain and France before the war and instead given to the US, would the New York Times of the day have run the details on the front page?

The "NYT of the day" would be the Chicago Tribune. And the answer is yes, they did. Fortunately the Japanese were arrogant and didn't believe the stupid caucasions were smart enough to break a Japanese code, and thought that it was propaganda. FDR decided not to prosecute because they didn't want to bring any more attention to the information, and because it was quite questionable whether the Espionage Act applied. After the war they amended the Espionage Act to make it far more explicitly illegal.

[clarice]

http://www.fas.org/blog/secrecy/2007/08/reporters_could_be_prosecuted.html

[cathyf]

Clarice -- I'm curious about this comment:

Could improper or unnecessary classification be used as a defense against prosecution? "We are aware of no case that affirmatively holds that such a defense is available to defendants in Espionage Act cases," Mr. Friedrich wrote. And he cited one Ninth Circuit decision that said that "under section 798 [one of the espionage statutes], the propriety of the classification is irrelevant."

in the article that you linked. Is this really sensible? The Espionage Act specifies that it covers information, which if disclosed, causes harm to the national security of the US. Improperly classified info is info that is marked classified, even though it doesn't cause national security harm if released. So I'm wondering if this statement was just not real well thought out -- yeah, technically the Espionage Act doesn't explicitly give an "out" for over-classified info, but in fact if it satisfies the Espionage Act definitions then it is properly classified at some level of secrecy.

[clarice]

I disagree with that point, too, cathyf..Frankly, I think that one is related to the ongoing AIPAC case where from the minuet the govt is dancing and Franklin's heated comments in an affidavit to the Court--it appears that all the "classified " information was publicly available from non-governmental sources.

As to that claim, I agree with you--it's untenable under the very terms of the Act.

The big issue though has been whether journos could be held liable under the Act--Gabriel Schoenfeld wrote a compelling argument sometime ago in Commentary, I believe, that they could, and on that point, I agree with DoJ.

[anduril]

cathyf, I think you're improperly conflating Espionage with classification. What I mean is, information may be properly classified even though its release would not cause the type of harm to the national defense that is envisioned by the Espionage Act. N.B., the Espionage Act speaks of defense, not "security," and provides a lengthy list of examples An example may illustrate the distinction.

Releasing the identities of covert CIA operatives might or might not harm the national defense, per se, but it could well harm the national security interests of the United States because it would open those operatives to recruitment by other services or force us to terminate information gathering operations that are long term in nature rather than proximately related to the national defense. Such programs are properly classified, even though they cannot be prosecuted under the Espionage Act but are subject only to administrative sanctions such as firing. If you want to understand the whole business of classification you have to go back to relevant Executive Orders.

Now, in the case of the leak we're discussing, there is a difference. One of the results of the Chicago Tribune case that you brought up was, as clarice noted, an amendment of the relevant statutes. Congress passed a law criminalizing the leaking of information regarding such "technical collection" programs--which would undoubtedly include the NSA programs that have been alluded to in the recent Gonzo hearings. There is a specific statute, therefore, to deal with this situation of leaking such information to newspapers, so the actual Espionage Act wouldn't necessarily come into play. The big difference is that, whereas under the Espionage Act the offender must intend harm to the United States, under the statute that I'm referring to the offender needn't have intended harm to the United States--he could, as in the Tribune case, have a political axe to grind.

[clarice]

Thnx for the correction, anduril.

[cathyf]

anduril, I was making the argument from the other side -- we have the set of all information:

1) should be classified, is (correctly) marked classified;

2) should be classified, is (incorrectly) not marked classified;

3) should not be classified, is (incorrectly) marked classified;

4) should not be classified, is (correctly) not marked classified;

The paragraph that I quoted seems to be asking about category #3 -- and pointing out that the Espionage Act gives no explicit "out" for disclosing information in that category. What I'm claiming is that the EA has it's own definition of what it covers, and given the definition of what is classified (established by executive orders after the EA was passed), everything covered by either the post-WWI EA and the post-WWII amendments would fall under categories #1 & #2. And as you point out, given the distinction between national defense and national security, it would be a subset of the info in catagories #1 & #2.

[clarice]

Slate's Dahlia Lithwick hates Gonzales but nails her own party on this:
[quote]There is virtually no way to reconcile Sen. Mark Pryor's, D-Ark., claim that Gonzales has "lied to the Senate" and needs to go with his vote to expand the reach of our warrantless eavesdropping program. And how can one possibly square Sen. Dianne Feinstein's, D-Calif., claim that the AG "just doesn't tell the truth" with her vote to give him yet more unchecked authority? You either trust this AG with the power to listen in on your phone calls or you do not, and the mumbled justifications for these "yes" votes ( … but Gonzales shares his authority with National Intelligence Director Mike McConnell; … but the bill sunsets in six months) do nothing to lessen the impression that some Democrats mistrust Gonzales when it's convenient, but not when it's truly important.

Imagine that the Democrats had been hollering for the past six months that Gonzales was an out-of-control drunk. With their eavesdropping vote, they've handed him the keys to a school bus. Nobody was forcing these Democrats to impeach or censure the AG. But this warm pat on the back they have offered him is beyond incredible.

With this FISA vote, the Democrats have compromised the investigation into the U.S. attorney scandal. They've shown themselves either to be participating in an empty political witch hunt or curiously willing to surrender our civil liberties to someone who has shown—time and again—that he cannot be trusted to safeguard them. The image of Democrats hypocritically berating the attorney general with fingers crossed behind their backs is ultimately no less appalling than an attorney general swearing to uphold the Constitution with fingers crossed behind his own.[/quote]

http://www.slate.com/id/2171839/nav/tap3/