Sunday, November 11, 2007

Thanksgiving Turkey Feathers - 2007

One should have little doubt that the US is moving toward a surveillance state. I've commented that definition of the "reasonable expectation of privacy" is the rock bottom of this, as "reasonable expectation of privacy is the phrase used by the Courts as they review the privacy of the individual as expressed in the constitution's fourth amendment.

The most sweeping revolution of personal privacy would flow from the redefinition of "reasonable expectation of privacy," with the government's position being that no person should be permitted to reasonably hold an expectation of privacy as against the government and whatever businesses the government enlists as snoopers.

At least some in the administration are up front about promoting this redefinition.

"Government Seeks to Redefine Privacy" - Pamela Hess (AP)

A top intelligence official says it is time people in the United States changed their definition of privacy.

Privacy no longer can mean anonymity, says Donald Kerr, a deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguards people's private communications and financial information.

The variety of headlines on this AP story is interesting:

The story is "three weeks old news." Here is a bit more context for Mr. Kerr's remarks.

Remarks and Q&A by the Principal Deputy Director of National Intelligence Dr. Donald Kerr
2007 GEOINT Symposium
Henry B. Gonzalez Convention Center
San Antonio, Texas
October 23, 2007

And that leads you directly into the concern for privacy. Too often, privacy has been equated with anonymity; and it's an idea that is deeply rooted in American culture. The Long Ranger wore a mask but Tonto didn't seem to need one even though he did the dirty work for free. You'd think he would probably need one even more. But in our interconnected and wireless world, anonymity -- the appearance of anonymity -- is quickly becoming a thing of the past.

Anonymity results from a lack of identifying features. Nowadays, when so much correlated data is collected and available -- and I'm just talking about profiles on MySpace, Facebook, YouTube here -- the set of identifiable features has grown beyond where most of us can comprehend. We need to move beyond the construct that equates anonymity with privacy and focus more on how we can protect essential privacy in this interconnected environment.

Protecting anonymity isn't a fight that can be won. Anyone that's typed in their name on Google understands that. Instead, privacy, I would offer, is a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards on which our intelligence community commitment is based and measured. And it is that framework that we need to grow and nourish and adjust as our cultures change. ...

GEN. LEE: Could you elaborate on the notion that privacy does not equal anonymity? What are the implications?

DR. KERR: It's a really good question because, in fact, it's a personal question that everyone, in a way, has to answer for themselves. But I think today, you know, I'm willing to call up, pick the vendor of your choice. I'm willing to share my credit card number and expiration date with a person I have never seen, have no idea whether they've been vetted or not. I've certainly been able to get past being anonymous in that transaction. And of course, you multiply that by all of the transaction that you're involved in every day.

I was taken by a thing that happened to me at the FBI, where I also had electronic surveillance as part of my responsibility. And people were very concerned that the ability to intercept emails was coming into play. And they were saying, well, we just can't have federal employees able to touch our message traffic. And the fact that, for that federal employee, it was a felony to misuse the data -- it was punishable by five years in jail and a $100,000 fine, which I don't believe has ever happened -- but they were perfectly willing for a green-card holder at an ISP who may or may have not have been an illegal entrant to the United States to handle their data. It struck me as an anomalous situation.

So this is not something where groupthink works for an answer. I think all of us have to really take stock of what we already are willing to give up, in terms of anonymity, but what safeguards we want in place to be sure that giving that up doesn't empty our bank account or do something equally bad elsewhere.

The important privacy interest in the balance between "the people" and "the awesome power of the government" is that of "privacy as against the government," not privacy against the whole damn world.

But it's common today to see arguments in the nature of, "your international calls can be intercepted by a foreign government, therefore you have no reasonable expectation of [perfect] privacy." And, goes the argument, because you have permitted information to escape "perfect privacy," you should not be concerned that your government also obtains and uses that information.

More Donald Kerr, speaking September 6, 2000, on the subject of "Carnivore," in his Statement for the Record before the Senate Judiciary Committee.

In that statement, he indicated that the public should trust the government to be restrained in warrantless snooping, because of statutory privacy protections that include civil and criminal penalties. Hahahahah. Those would be the statutory protections that Congress will gut as needed, via providing statutory and retroactive immunity for violators.


Somewhat related, those who are accustomed to seeing political and social issues as a matter of line drawing might enjoy looking at the line between "military trials" and "civilian trials." All countries, as far as I know, have trials under both sorts of system, so the issues isn't "are there to be military trials," but rather, which cases are pushed out of the civilian regime, and with what justification.

"Musharraf Reaffirms Election Schedule" (AP)

"Certainly the emergency is required to ensure peace in Pakistan, to ensure an environment conducive to elections," [Pakistani President Gen. Pervez Musharraf] said, also noting, "The emergency contributes toward better law and order and a better fight against terrorism."

Meanwhile, officials said Sunday that Musharraf has amended a law to give army courts sweeping powers to try civilians on charges ranging from treason to inciting public unrest

Just wait for Hillary! to take up the executive mantle, and tighten up security in the United States so as to prevent terrorist attacks and punish opposition to regular order.


Richard Armitage on Wolf Blitzer's CNN Late Edition is reiterating his contention that Valerie Plame was not "covert." More stirring of that old pot, I presume to enhance Mrs. Plame/Wilson's book sales.

Byron York at NRO quotes all the relevant parts of the transcript.


Tooling around at for what might pass as news, "Musharraf Releases Highest Ranking Taliban Ever Captured." There is some amount of commentary on the Newsweek story, including an entry at Macsmind.

November 12

I've been researching and commenting on the Higazy case, at Robert Loblaw's "Some Thoughts on Higazy" and Orin Kerr's post at Volokh, "Commentary on Higazy." This is the case where the plaintiff alleges an FBI interrogator threatened to turn his Egyptian family into the Egyptian authorities, to "make their lives hell." The question in 2007 is: as between Higazy and the government, which wants to keep the details of the allegation secret?

November 13

Nomination of Judge Robert M. Dow Jr. (N.D. Ill.) will be the first order of business today, with the confirmation vote to start at 10:10 a.m.

Following that, the Senate will enter a period of morning business until 12:30, then stand in recess until 2:15. The only formally pending legislative business is H.R.2419 - "the farm bill," and the Military Construction/VA appropriations bill (was H.R.2642 before it was combined with, then divorced from Labor/HHS appropriations) remains to be completed.

The Senate Judiciary Committee will be handling FISA amendments as expressed in S.2248, in its Executive Business Meeting of Thursday, November 15th. Granting some form of amnesty to the telecommunications companies is the primary issue in the public's eye, but the bill merits a close review for other "surprises." For example, new Section 804 will cut off state power to regulate or investigate telecommunications privacy, where communications are obtained by "an element of the intelligence community." Check out which agencies are "elements of the intelligence community," especially 50 USC 401a(4)(L). I assume such designations may be classified.


10:05: Senator Reid has read and placed on the calendar, H.R.3495 - Kids in Disasters Well-being, Safety, and Health Act of 2007, and H.R.3685 - To prohibit employment discrimination on the basis of sexual orientation. (WH Policy Statement indicates President Bush will veto H.R.3685 if it is presented).

Senator Reid indicated he would have more to say, later, about plans for the balance of the week.

Senator McConnell talks about the need to deal with the Alternative Minimum Tax (AMT), promptly. Senator Reid rebuts by saying that Congress has an obligation to raise revenue commensurate with its spending. If the people want the programs, the people will have to pay for them. Pretty simple.

10:35: Robert M. Dow Jr. was CONFIRMED to a seat on the US District Court for the Northern District of Illinois, on a 86-0 vote.


Heheh. Fifteen seconds of "fame," being cited by Patterico for Higazy case research, with Patterico's article being noted by Howard Bashman at HowAppealing.


10:59: Senator Vitter speaking against some provisions in the Law of the Sea Treaty, while noting that other features of the treaty are laudable. He is against the LOST if it is taken as a whole. Four senators voted against moving the LOST out of committee: DeMint, Coleman, Isakson, and Vitter.

President Bush is pushing for ratification. Senator Reid has said he hopes to have a ratification vote by the end of the year. Senator McConnell is opposed to the treaty.


President Bush signed H.R.3222 - DoD appropriations (including a Continuing Resolution to Dec 14, 2007), and vetoed H.R.3043 - Labor/HHS appropriations.

No definite word from Congressional leadership (Democrats) as to conducting a veto override vote, but from, "Democrats Seek To Override Likely Veto on Labor-HHS-Education Spending Bill," and from "Lacks Enough Votes To Override Expected Veto."


14:28: Senator Reid intimates that filling the amendment tree has been the normal process for handling "the farm bill" in years gone by (it isn't), and that if the bill doesn't move forward, it's because Republicans are unreasonably refusing to work under the terms of procedure set by "filling the tree."

From the tone of Senator Reid, I don't sense that Democrats and Republicans have agreement about which, how many, and time allowed for substantive amendments on "the farm bill." But he's sowed the seeds for his own frustration.

The bill managers have a collection of 22 amendments that they could handle (take up, debate, pass most of them), but they can't deal with them because the amendment tree is full.

Senator Reid asks, rhetorically (or maybe not rhetorically), if the Senate will be reduced to filing a cloture motion today, to be voted on Thursday, to limit debate on "the farm bill," without a single amendment having been taken up. If "the farm bill" is subjected to a cloture motion under that scenario, color it off the table for the 1st session of the 110th Congress.

Senator McConnell says he wants a farm bill. He suggests negotiating a specific list of amendments that would represent the universe of amendment allowed to be considered. This is agreeable, in principle, with Senator Reid. Senator Harkin asks McConnell if McConnell is agreeable to proceed with the Dorgan and Lugar/Lautenberg amendments while negotiations are underway, and Senator Reid interrupts to say "no - lets get the agreement done first." Now, who's standing in the way of debate?


Senator Reid leaked a bit of news about action later this week, a bill providing bridge/interim funding for the Iraq war is scheduled to come out of the House tomorrow. If a bill of this nature gets past GOP objection/filibuster, it will be vetoed by President Bush because it includes a timeline for troop withdrawal.


16:35: Senator Mikulski talking about/against cloned animals for meat, what she notes the Europeans call "Frankenfood." I wonder what her position is on human "cloning," body parts for medical purposes. Frankenstein? Mikulstein!

20:00: Still no deal on the farm bill, but plenty of optimism that an agreement as to amendments and time will be reached tomorrow. The Senate stands adjourned until tomorrow morning.

November 14

Interim news from the NYT regarding the incident where members of the Blackwater security firm are accused of using excessive force, "F.B.I. Says Guards Killed 14 Iraqis Without Cause."

A separate military review of the Sept. 16 shootings concluded that all of the killings were unjustified and potentially criminal. One of the military investigators said the F.B.I. was being generous to Blackwater in characterizing any of the killings as justifiable.


My preliminary conclusion of Rockefeller's FISA amendment, compared with the currently in-force "Protect America Act," (not including the retroactive immunity / amnesty portion), is that there's not much difference. Many of the rhetorical changes are designed to dispose of the "directed at" phrase that has no prior judicial interpretive history, in favor of use of "targeted at." Substantively, I think this rhetorical change is totally without significance.

The Alice-in-Wonderland redefinition of "electronic surveillance" remains unscathed (i.e., it's still Alice-in-Wonderland) in the translation. Interception of international communications is NOT electronic surveillance, as long as the surveillance order says "give me all communications originating or terminating at [a/any/all location(s) in a foreign country.]" and avoids saying "give me all the communications originating or terminating at [a specific location in the US]."

The proposed revision increases involvement of the FISC. Under the PAA, FISC reviewed certain AG and DNI certifications only upon a challenge from an uncooperative communications carrier. Under S.2248, FISC must review not only the procedure whereby the snooper believes he's acquiring only international communications, but also must review what are referred to as the snooper's "minimization procedures under 101(h)."

Minimization under 101(h) is a subject of its own right, but it's general function is to define the circumstances under which a government snooper may 1) acquire, 2) retain, and 3) disseminate nonpublicly available information concerning unconsenting United States persons. The statutory test is whether the snooper's activity is consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.

S.2248 also removes the judicial review standard of "clearly erroneous." That removal is necessary in order to provide judicial independence. When the statute says "the snooper's judgement is conclusive, unless clearly erroneous," then the statute neuters the exercise of potentially counterbalancing judicial judgement.


Marty Lederman describes the scope of the recently-reopened DOJ inquiry "into the Terrorist Surveillance Program." In short, the inquiry doesn't even get close to evaluating the legal justification for the TSP. Read more at "What's the OPR Investigation About, Anyway?." Assuming there hasn't been an ethical breach by a DOJ attorney, the inquiry will produce a clean bill of health. Watch then, for the leap from "no finding of unethical conduct" to "the Terrorist Surveillance Program comported with the laws in effect at the time."

The nominal target of the inquiry is Alberto Gonzales, not the TSP.


GOP split on repeal of Real ID - Stephen Dinan (WA Times)

Congressional Republicans are scrambling to defuse the political time bomb they created in 2005 when they allowed states to issue driver's licenses to illegal aliens -- but a key Republican and author of the Real ID Act [Sensenbrenner] says their [Fossella, King, 30+ cosponsors] new bill [H.R.4160] is unconstitutional [because it has the Feds telling the states that they cannot issue driver's licenses to illegal aliens].

How about a national driver's license, and national "traveling papers" while we're at it.


Text of H.R.4156 - Emergency Supplemental, supplemented by limitations on interrogation, a limitation on troop deployment outside of "fully mission capable," a limitation on use of "extraordinary rendition," and a non-waivable statutory order to commence withdrawing troops from Iraq. Definitely veto-bait.

Procedurally, this is set up for brief debate (2 hours) and quick handling (not amendable) in the House. The rule for consideration is H.Res.818.


11:40: The Senate formally moves off morning business and on to "the farm bill." Senator Harkin propounds a UC request to proceed to 60 minutes time limited on Dorgan #3508. Senator Chambliss objects, based on inability to arrive at a comprehensive agreement, and based on comments by Senator Reid this morning Same as to Lugar/Lott amendment. Same as to Roberts amendment, #3548. Same as to Stevens amendment, #3569. Same as to Allard amendment, #3572. Senator Chambliss counters with an alternative proposal, setting aside the motion to recommit and taking up a list of amendments that has been provided to Senator Harkin. Obviously, outside of negotiations by leadership, this is objected to as well.

The predictable mutual finger pointing follows. I bet the list of amendments that Chambliss provided to Harkin included all of the amendments that Harkin recited.

12:43: Senator Durbin has the GOP amendment list, and by citing some of the contents as non-germane to farming, argues that the Republicans inability to stay on point is the reason debate is stalled. It's a bad argument because it's trivial to find non-germane amendments, by both sides ...

Nov 6: Nos. 3502 - 3543
Nov 7: Nos. 3544 - 3564
Nov 8: Nos. 3566 - 3596
Nov 13: Nos. 3697 - 3653

Landrieu #3504 - Pet Turtles
Landrieu #3518 - Rural Health Care
Landrieu #3519 - Rural firefighters and Emergency Medical Assistance
Durbin #3565 - Accountability in Government Contracting Act of 2007
Durbin #3619 - Forbidding the importation of puppies for resale
Mikulski #3633 - Eliminating returning workers from H-2B visa quota

I don't know the real reason for stalling, but I do know that the stated reason is a smoke screen.

The Senate will stand in recess from 14:00 to 15:30 this afternoon. No reason given.

14:02: Just before going into recess, the Senate agreed to take up and have 90 minutes of debate on the conference report for H.R.1429 - Head Start. I didn't catch if this was "at a future time agreed to by Majority and Minority" or if a time certain was stated. Link to text of Conference Report 110-439.

15:33: Resuming business, it appears a time certain was set for handling the Head Start conference report, because Senator Kennedy is thanking the leadership and fellow Senators for their action on this project. So, "the farm bill" is set aside from the floor of the Senate for a couple of hours or so.

16:27: Following Head Start, the Senate will pick up H.Con.Res.258, whatever that is, it's not contentious because there was no objection to Senator Kennedy's UC request.

16:53: The conference report for H.R.1429 - Head Start, was PASSED on a 95-0 vote.

Then H.Con.Res.258 was adopted per previous agreement.

17:02: Senator Reid files cloture motions on "the farm bill." One on the Dorgan/Grassley amendment, one on the underlying bill.

Senators Reid and McConnell engage in a repetition of past "negotiation of agreement," this time with lists of amendments from both sides, where the right to amend is cut off beyond the amendments listed there. Senator Reid came close, but stopped short of agreeing. He steadfastly refused to withdraw or set aside the pending "tree filling" amendments, which is necessary in order to take action on any other amendment.


N.Y. sets deadline for U.N. safety upgrades - WaTimes

NEW YORK -- The city of New York yesterday set a Jan. 8 deadline for the installation of hundreds of smoke detectors and fireproof partitions in U.N. buildings, saying it may carry out a threat to cut off school visits if the improvements are not made by that date.

No! Not the dreaded school visit cutoff! Anything but that!


19:07: Senator Durbin all but closed the Senate. After Senator Dole says her piece, the Senate will stand adjourned until 9:30 a.m. tomorrow. After an hour of morning business, it will resume standing around and staring at "the farm bill."


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