Monday, July 30, 2007


Don't fall for the ruse that H.R.976 represents the SCHIP program.!

S.1893 An original bill to amend title XXI of the Social Security Act to reauthorize the State Children's Health Insurance Program.

In looking for the administration's position on SCHIP, one quickly notices that H.R.976 (the administration supports this without reservation) isn't SCHIP. The mystery is resolved by taking stock of Senator Reid's plan, which is to use H.R.976 merely as a platform to attach SCHIP as a substitute amendment.

Mr. REID. Mr. President, I ask unanimous consent that on Monday, July 30, following a period of morning business, the Senate proceed to calendar No. 58, H.R. 976, and that once the bill is reported, Senator Baucus be recognized to offer an amendment, which would be the text of the children's health legislation, also known as SCHIP, reported by the Senate Finance Committee.

On searching Statements of Administration Policy for the phrase "schip", one finds a Link to White House Fact Sheet on SCHIP, which says "The President's 2008 Budget proposes to reauthorize SCHIP as well as add funding in order to maintain and strengthen the commitment to providing health insurance to low-income, uninsured children."

In order to get a handle on what sort of disputes might be in the offing, I checked the Senate Finance Committee's Open Executive Session to Consider the "Children's Health Insurance Program (CHIP) Reauthorization Act of 2007", and in particular, Member Statements from Max Baucus and Charles Grassley, only to find agreement. So, digging elsewhere ...

A July 27 "Outlook" article in the Houston Chronicle, Middle class the new 'poor' if SCHIP expanded - Universal health care is the agenda behind the move, points out an issue buried in the financial eligibility line. The debate is phrased in terms of "percent of the federal poverty line." This is a helpful summary of the details ...

Already, on July 19, the Senate Finance Committee voted 17-4 to extend SCHIP eligibility to families making up to three times the poverty line [it is presently set at 200%]. Officials in states such as Connecticut and Maryland, where that's already the cap, or New York, where the cap is four times poverty, could continue to cover better-off children by gaming the system. (Hint: It depends on what the definition of "income" is.)

The current state of the law, in detail, is stated in US Department of Health and Human Services - National SCHIP Policy. Better for casual reading, the Wikipedia summary. For those who want more, not less detail, check SCHIP - Congressional Budget Office Report, May 2007, and other materials located at National Conference of State Legislatures page on SCHIP.

The bill that emerged from the July 19 Senate Finance Committee meeting was placed in the Record on July 26, as S.1893 An original bill to amend title XXI of the Social Security Act to reauthorize the State Children's Health Insurance Program, and for other purposes. Funny, it has no co-sponsor, not even Senator Grassley. A substantial introduction to the bill is printed at Pages S10173 through S10190 in the Record (July 26). It makes a reasonable preview of the grounds of debate.

Seeing as how the people have had federally-funded public health care administered by the states since at least 1997, the only issue, now that we've bought into federalized health care in principle, is "how much more?" There will NEVER be less government involvement in health care.


2:00 p.m. Monday, morning business until 3:00, then take up the motion to proceed to H.R.976 - the Small Business Tax Relief Act of 2007, then at 5:30 p.m (Monday), conduct the vote on the cloture motion on the motion to proceed.

Resurrection of Administration FISA Modernization Proposal

FISA revision, being the subject of President Bush's Saturday radio address, may also become a subject of heated debate in the Senate this week. Surveillance activity and FISA certainly ties in with all the attention AG Gonzales has been getting recently.

A collection of FISA-related links in chronological order, without much commentary to begin with. First, some history in the "I bet he wishes he hadn't said that" department, April 12, 2000 statement by NSA Director Lt. Gen. Hayden to the House Permanent Select Committee on Intelligence:

The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and - - through the FISA -- the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.

Hayden's complete statement of April 2000 is worth a read, to obtain general background.


Fast forward to the 109th Congress, where eight different FISA revision proposals were floating around, none of which were acted on (linked here for completeness - don't bother reading these unless you are a glutton for irrelevant detail) ...

109th Congress Surveillance-related bills

  • S.2453 - National Security Surveillance Act of 2006 [Specter]
  • S.2455 - Terrorist Surveillance Act of 2006 [DeWine, Graham]
  • S.3001 - Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 [Specter, Feinstein]
  • S.3877 - Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 [Specter, Feinstein]
  • S.3886 - Terrorist Tracking, Identification, and Prosecution Act of 2006 [Frist, McConnell]
  • H.R.5825 - The Electronic Surveillance Modernization Act [Wilson]
  • S.3931 - Terrorist Surveillance Act of 2006 [McConnell, Frist]
  • S.4051 - Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2006 [Specter]

I added the summary of bills in the 110th Congress so as to provide a one-stop shop for the long haul. The reader will see that the DNI-proposed language, as expressed in S.1927, was passed by the Senate on August 3, 2007. It was amended by S.Amdt.2649 to provide a sunset provision.

110th Congress Surveillance-related bills

  • S.1114 - Foreign Intelligence Surveillance Improvement and Enhancement Act of 2007 [Specter/Feinstein]
  • S.1927 - A bill to amend the Foreign Intelligence Surveillance Act of 1978 ... [McConnell/Bond] (passed 8/3/07)
  • H.R.3356 - Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act of 2007 [Conyers]
  • S.2011 - The Protect America Act of 2007 [Levin/Rockefeller] (rejected 8/3/07)


For the presently relevant details, fast forward again to April 2007 ...

Reuters: Bush asks Congress to alter 1978 eavesdropping law
Friday, April 13, 2007

Senior administration officials, who spoke to reporters only on condition of anonymity, said they proposed to add two new categories of non-U.S. persons to FISA's definition for foreign agents who can be targeted for surveillance. ...

"It adds a new category of individuals to the non-U.S. person-agent-of-a-foreign-power definition to include people who we believe have significant foreign intelligence information but where the relationship between that person and the foreign power is unclear," said one official.

Foreign powers can include the governments of other countries as well as militant groups including al Qaeda.

A second new category of foreign agents would be non-U.S. persons involved in a deliberate attempt to proliferate weapons of mass destruction. ...

It also shields companies against legal liabilities if they participate in "lawful" eavesdropping activities.

Major telecommunications companies accused of participating in the NSA spying program have faced federal lawsuits charging involvement in illegal espionage.

Another main thrust of the bill is to drop FISA provisions by dropping references to older technology and refocusing the instead law on categories of persons who can be targeted.

FAS: Pending Intelligence Legislation
DOJ Summary "Fact Sheet" on Proposed Legislation
Text of Proposed Legislation with Comments
Friday, April 13, 2007

Volokh: Administration Seeks More Surveillance Authority
Saturday, April 14, 2007

ScotusBlog: Narrower role for Court on electronic spying?
Text of Proposed Legislation with Comments
Saturday, April 14, 2007

TalkLeft: Proposing the Evisceration of the Fourth Amendment
Saturday, April 14, 2007

HowAppealing: Link to NPR ... "Bush Administration Urges Changes to FISA."
Saturday, April 21, 2007

Talkleft: Record Number of Secret Searches in 2005
Tuesday, May 01, 2007

But in its three-page public report, sent to Senate and House leaders, the Justice Department said it could not yet provide data on how many times the FBI secretly sought telephone, Internet and banking records about U.S. citizens and residents without court approval.

FISA Warrant Statistics

Bush FISA Bill Gives Gonzales Power He Doesn't Merit, Whitehouse Says
Congressional Record - Friday, May 11, 2007


There was very little public commentary, even in April and May, as one can see by clicking on the pundits' links above. Interest was rekindled late last week ...

NRO: FISA Debate Heats Up
Friday, July 27, 2007

Late last night, Democrats began emergency internal discussions on updating the Foreign Intelligence Surveillance Act. Republican Congressmen have been criticizing the Democratic leadership for refusing to reform FISA to serious address gaps that are hurting the ability of US intelligence to intercept terrorist communications. Republican criticism of the Dems for planning to take off the month of August without fixing this serious problem seems to be having an effect.

The Dems are looking for some kind of minor fix so they can say they addressed this issue before they recess on or about August 3rd. There's been talk of shortening the recess by a week or so because of the lack of accomplishments by this Congress, but that's another story. Congress returns on September 4th.

The Dems were negotiating for meetings with the WH to discuss a fix to FISA last night. Dem leadership wanted meetings without Republican congressional reps. Fortunately, the WH did not agree to this.

The meetings were held this morning. Dems discussed some minor fixes that House and Senate Republicans rejected. No word on when or if these meetings will reconvene.

WSJ Editorial: How politics has gutted the terrorist surveillance program
Friday, July 27, 2007

President Bush's Radio Address
Saturday, July 28, 2007

To fix this problem, my Administration has proposed a bill that would modernize the FISA statute. This legislation is the product of months of discussion with members of both parties in the House and the Senate -- and it includes four key reforms: First, it brings FISA up to date with the changes in communications technology that have taken place over the past three decades. Second, it seeks to restore FISA to its original focus on protecting the privacy interests of people inside the United States, so we don't have to obtain court orders to effectively collect foreign intelligence about foreign targets located in foreign locations. Third, it allows the government to work more efficiently with private-sector entities like communications providers, whose help is essential. And fourth, it will streamline administrative processes so our intelligence community can gather foreign intelligence more quickly and more effectively, while protecting civil liberties.

JURIST: Bush urges Congress to update surveillance law
Sunday, July 29, 2007

WSJ Opinion: Our Terrorist Surveillance Program isn't as effective it was a few months ago
Monday, July 30, 2007


Contrary to my advice to readers, I looked at some of the legislation proposed in the 109th Congress, in particular, S.3931 - Terrorist Surveillance Act of 2006. That seems to track fairly closely with the presently proposed legislation (pdf). Therefore, a good parallel reference, for the time being, may be obtained by reading the Congressional Research Service publication, RL33669 - Terrorist Surveillance Act of 2006.

Also, there may be some amount of punditry commentary in the late September 2006 timeframe of S.3929, S.3930, and S.3931. Those bills in the 109th Congress represent Military Commissions and FISA as separate subjects, then the same language in another bill that bundled the two pieces of legislation. The Military Commissions part, S.3930, was passed into law on September 29, and signed by President Bush on October 17. The FISA part is, as noted, S.3931, and Google turns up quite a few pieces of punditry using "S.3931" as the search term.

White House Progress Report: Fixing the Problems Exposed by the 9/11 Attacks
September 7, 2006

Once Again, The President Called On Congress To Promptly Pass Legislation Providing Additional Authority For The Terrorist Surveillance Program. A legal challenge to the TSP was recently upheld by a Federal district court judge in Michigan [Taylor]. The Administration strongly disagrees with this ruling, is appealing it, and believes its appeal will be successful [it was]. A series of protracted legal challenges would put a heavy burden on this crucial program and could present unacceptable delays.

  • The President Has Also Called On Congress To Pass Broader Reforms In The Foreign Intelligence Surveillance Act (FISA). When FISA was passed in 1978, there was no Internet and almost all calls were made on fixed landlines. Now, people can buy disposable cell phones and open anonymous e-mail accounts. Our laws must be strengthened to take changes like these into account.

In mid to late September, the "McCain amendment" on the subject of interrogation techniques (torture) was taking up most of the attention, and revisions to FISA seem to have been, for the most part, set aside.


Senators Specter and Feinstein have an alternative FISA Bill in the 110th Congress, S.1114 - Foreign Intelligence Surveillance Improvement and Enhancement Act of 2007. This bill is radically different from the administration's proposed FISA overhaul, and in my opinion, also isn't worth studying.

The administration's proposed language (pdf) needs to be studied. Carefully. My initial reaction is that the administration selling points misrepresent the contents of the proposed legislation. That's not to conclude that the proposal is bad, just that its purveyors are enthusiastic and misleading about their product.

I personally think privacy against the government is an illusion, and wouldn't trust a government actor's statement that my communications are confidential or private. The Fourth Amendment, like the Tenth, is feelgood language, lacking in substantive application. "Reasonable expectation of privacy" is defined by the government, not by the individual.

Findlaw has a summary of Fourth Amendment Caselaw, that includes a section on Warrantless ''National Security'' Electronic Surveillance. The Findlaw material is concise fundamental foundation for understanding the debate in Congress -- and the authors are considerably less cynical on the subject than I am.

Bottom line? If this couldn't pass in the 109th Congress, with a Republican majority, it sure isn't going to pass this year. No action on the merits, just another opportunity for high-stakes political posturing instead of honest debate and legislating useful incremental changes.

UPDATE @ 16:16

Here is the program for this week, as summarized by Senator Reid last Thursday. No appearance of any formal consideration of FISA modification.

I hope we can start it [SCHIP - S.1893] on Monday. Then the only other thing we need to do is to complete ethics and lobbying reform [a brand new bill, Honest Leadership and Open Government Act, (not the House-passed H.R.2316 or getting S.1 to conference over DeMint's objection)] As I have indicated, I wish to start another appropriations bill [all of them are on the calendar], but that would not take a vote during this session, though we would move to it before we leave. We would only do WRDA [still in conference, H.R.1495 - Water Resources Development Act], the conference report on WRDA.

UPDATE @ 17:55

On Monday, July 30, at [predicted 17:57] 17:55 the cloture motion on the motion to proceed to H.R.976, a small business tax bill that will be replaced with SCHIP legislation, was PASSED on a [predicted 89 - 5] 80 - 0 vote.

And with most of the senators present, jump to quorum call. Sheesh. Need to get the substitute amendment cued up, then off until tomorrow morning, I presume.

19:23 - Senator Sanders shuts down the Senate until 10:00 a.m. on Tuesday.

In other news, Chief Justice Roberts is hospitalized in Maine (just up the road a piece from here in Anytown), and the FBI and IRS are searching Senator Stevens home in Alaska. Senator Stevens is in Washington D.C., he voted on the cloture motion above.

UPDATE @ July 31

CJ Roberts is going to be okay.

I put links to Senator Specter's Immigration reform proposal (no citizenship, keep family priority and reject point system for granting immigration, and increase numeric quota for H-1B (tech worker) visas) in the May-June Immigration debate post.

The SCHIP substitute amendment was not offered yesterday. Dems unveil ethics plan by Elana Schor - July 31, 2007

The majority re-drafted the ethics bill after Sen. Jim DeMint (R-S.C.) held up conference talks by seeking assurances of the earmark language's fate. ...

The House is expected to take up the bill on Tuesday on the suspensions calendar, sending it to the Senate in a privileged message that requires only one motion to cut off debate and vote, should DeMint and fellow Republicans attempt a filibuster.

... while I'm looking for the text of this bill, I point out that there isn't some "special" parliamentary process in the Senate, that would preclude objection to taking up the House-passed bill, and also objection to voting on the House-passed bill. That is, DeMint can, on his own, force at least two cloture votes (one on the motion to take up, and one on a UC agreement to vote on the bill), but if the Senate passes the same language that the House does, there won't be a conference committee for him to object to.

Very good summary of the major "differences" between the already-passed House and Senate bills, compared with the Democrat crafted conference get-around -- plus speculation about the extent of opposition to the conference get-around (Senator McConnell is not opposed to the parliamentary move or the Democrat-proposed legislation) -- in this July 10 article from OMB Watch: Pressure to Pass Lobby Reform Grows.

Reps Doc Hastings and Kingston, Republicans in the House, are urging the House to take up FISA revisions as a one hour diversion in the context of an Agriculture Appropriations (Farm) Bill.

UPDATE @ 14:08

The new ethics reform bill passed the House on a 411 - 8 vote, it's a safe bet the watered-down bill will pass the Senate with little fuss. The vehicle is S.1, obviously not "as passed by the Senate."

UPDATE @ 15:04

The substitute amendment (SCHIP) is S.Amdt.2530, text not yet online.

UPDATE @ August 1

The Senate Judiciary Committee has an executive meeting scheduled for Thursday, Aug 2nd. Three guesses as to which Circuit Court nominee (or nominees) is on the agenda -- and the first two guesses don't count.

Answer: None of the nine pending nominations is on the agenda. Not Leslie Southwick, who has been getting some lip service from Republican senators, nor Keisler, Kethledge or Murphy, who were first nominated in June last year, and have yet to make it out of the Judiciary Committee. Do you hear any complaints from Republican senators? Neither do I.


Howard Bashman of HowAppealing describes the experience he and his son had, watching Curt Schilling pitch for the Pawtucket Red Sox. Good reading for baseball fans.


Mr. Bashman also has a collection of links to news articles on the "Gonzales lied to Congress about surveillance" bru-ha-ha. The Washington Post article linked there further links to yesterday's letter from Mike McConnell, the director of national intelligence, to Senator Specter.

The short version is that the government has been undertaking a broad, mostly secret surveillance program. One small piece of the program was rendered not-secret in December 2005. This is the part where the government listens to conversations that reach overseas, and one side of the conversation involves a known or suspected terrorist or terrorist sympathizer. That not-secret part is referred to as the Terrorist Surveillance Program.

That "two programs" (or is it one? or three? or sixteen?) distinction is used to make sophistic (not sophisticated, "sophistic" as in modern usage) arguments on the veracity of government representations (Gonzales's in particular) about its surveillance activities. My take remains, Gonzales lies the same way Bill Clinton did and does -- with statements that are misleadingly phrased, but become literally true when carefully parsed in a particular way. Did he lie? or not? The answer depends on the conclusion the reviewer prefers to reach.

The best outcome for Gonzales is that the public (and Congress) realize he isn't literally a liar, just that his statements should be parsed as carefully as one parses a Clinton statement. "It's not sex," "I wasn't talking about that program."

Beldar's take here, and one of the comments is pretty funny ...

I understand that Alberto Gonzales hasn't delivered a letter to the Senate Judiciary Committee today by the promised noon deadline.

Seems Alberto is stuck on the salutation of the letter.

He started with "Dear gentlemen," but Gonzales said that really sounded like perjury.


After 30 minutes of morning business (i.e., starting at about 10:10), the Senate will have 30 minutes of debate on Ensign S.Amdt.2538, followed by a vote.

Senator Reid laid out in summary form, his expectation for action on the SCHIP bill as follows:

  • A Gregg amendment (to limit the matching rate for coverage other than for low-income children or pregnant women covered through a waiver and to prohibit any new waivers for coverage of adults other than pregnant women), depending on backroom agreements, followed by a vote
  • Senator Byrd to speak for 30 minutes starting at noon (it isn't clear this is on SCHIP)
  • Two major amendments, one by Senator Kerry that increases funding, the other by Senators Lott and Kyl, a substitute amendment -- neither of those amendments has been offered yet
  • He hopes there is no need to file cloture to get to a vote on passage of SCHIP
On other subjects, Senator Reid notes that the cloture vote on motion to proceed [Correction: on a motion to concur with the House amendment] to the ethics and lobbying bill will occur tomorrow morning (and he thanks the Republicans for allowing debate to continue on SCHIP while a motion to proceed to [Correction: debate on] the ethics and lobbying bill is pending), and that the surveillance bill (FISA) is also a "must do" before summer recess. The administration (McConnell) has sent proposed changes (from the April proposal? From current law?) to the Senate.

Senator Reid says he would like to also take up other things (a laundry list that may or may not indicate priorities for after the summer recess) and names only one item, "competitiveness bill."

UPDATE @ 9:42

Senator Dorgan spoke on adding the Indian Health Care Improvement Act to the pending legislation, versus waiting until September to have stand-alone legislation considered in September. He'd withdraw the proposal as an amendment to SCHIP if he has an agreement to proceed to the stand alone bill. Senator Reid says that the Indian Health Care Improvement Act will be considered this year. Senator Dorgan indicates that he will withdraw his amendment.

Senator Alexander spoke on the nomination of Leslie Southwick. Pardon my yawn.

UPDATE @ 10:50

JURIST: Intelligence chief defends Gonzales against accusations of lying to Congress includes a link to AG Gonzales's testimony of July 24, in case anybody has the urge to engage in careful parsing. I think there is precious little information exchanged in that hearing.


Senator Ensign's amendment appears to be going down to defeat on a mostly party-line vote.

The cloture vote on the ethics bill tomorrow is to limit debate "on the motion to concur in the House amendment on S. 1," in other words, it's not a cloture motion on a motion to proceed, this is a cloture motion on the underlying bill.

UPDATE @ 11:11

Senator Ensign's amendment was defeated on a 26-58 vote. All of the members in the Homeland Security markup were absent, and they each come to the floor to indicate the vote they would have recorded had they been on the floor. Some of them are miffed, others are amused. Senator Byrd comments that it is shameful that a promise to senators (vote would be held open) was broken -- now an interesting exchange as to whether or not the vote can be reopened, to which one Senator objects (Senator Reid would also object, as would Senator Byrd). Senator Reid is concerned that votes occur in a timely fashion, and Senator Byrd criticizes the concern for time overtaking the right of a Senator to vote, and the tradition of the Senate to accommodate each others' circumstances.

Senator Reid dubs Senator Byrd, "Babe Ruth of the Senate." Then goes on to defend the decision to have voting cut off. Senator Hutchison renews a UC request to "just this one time reopen the vote," and Senator Reid makes the same request -- which is quickly (immediately) ruled totally out of order and outside the rules. No kidding -- remember "Move to reconsider" and "Motion to reconsider layed on the table?" Once that's done (and it was) the vote is fini, final, no takeback, no do-over, no add-ins. But check this out ...

Immigration Redux, continued - S.Amdt.1150 to S.1138 - June 9, 2007

Not that it matters, but this is an interesting procedural event. This is the first time I have seen an absent Senator being able to retroactively cast a vote. It's common for them to change from Yea to Nay, or Nay to Yea, but not from "absent" to "present and voted."

[June 7] A unanimous-consent agreement request was granted permitting Senator Chambliss, who was listed as absent, to vote nay on Vote No. 194, changing the outcome of the vote to 51 yeas to 46 nays relative to Reid (for Kyl/Specter) Amendment No. 1460 adopted on Wednesday, June 6, 2007

The explanation? I was mistaken that this amounted to a retroactive casting of a vote. Chambliss was making a correction to the record, not trying to create a false history.

Mr. CHAMBLISS. Mr. President, on rollcall vote No. 194, I was present and voted no. The official record has me listed as absent; therefore, I ask unanimous consent that the official record be corrected to accurately reflect my vote. This will in no way change the outcome of the vote.

And on to the matter at hand, the Gregg amendment. 4 minutes of debate followed by a vote. I wonder how many Senators will miss this one?

Senator Gregg's amendment was rejected on a 42-53 vote.

UPDATE @ 11:40

Senator Stevens asks for 2 minutes in morning business, notes he was absent for a vote being at Arlington Cemetery. Let's see if he asks to have his vote entered on the record.

The Lott amendment, S.Amdt.2593, makes its appearance. This is a substitute that will be shot down, but it's still worth having the debate.

UPDATE @ 11:50

Senators McConnell and Leahy in a brief but testy exchange over the use of quorum to stifle McConnell's speaking. Senator Leahy indicates that Senator Reid intends to be present for McConnell's speech, and Senator McConnell yields to a quorum call that lasted about two minutes.

McConnell S.Amdt.???? (McConnell spoke over the clerk even at the reading of the amendment number), and immediately diverts to discuss the subject of Leslie Southwick. He notes that Southwick got an age waiver to serve in the armed forces, and gives a glowing testimonial on the nominee, including that the Committee unanimously approved the nominee.


McConnell and Specter have offered the amendment to HR 976 (dealing with tax relief for small business). After detailing Southwick's qualifications, the money paragraph says:

"It is the sense of the Senate that the nomination of Judge Leslie Southwick to the United States Court of Appeals for the Fifth Circuit should receive a vote by the full Senate."

Complete text of Senator's McConnell's comments (H/T cubsfan @

Senators Reid and Leahy will rebut the "Sense of the Senate" resolution on the subject of Leslie Southwick, offered by Senator McConnell, and will move to table the amendment. Senator Reid's justification for objecting to the nomination is that the Republicans blocked President Clinton's nominees. Wow, that "Gang of 14" thing sure done good.

Senator Leahy says a Republican objected to Southwick? Not that I know of - it was Graham (bless his heart) who objected to considering Haynes. Senator Leahy intends to make confirmations into a numbers game as to which president had how many nominations confirmed, and resurrects most of the old, tired, worthless arguments. But, wonder of wonders, it seems he will be putting Leslie Southwick on the agenda for tomorrow's SJC meeting. [He did - the agenda has been revised to include Southwick]


On a totally separate subject (one near to my work, but not much part of my amateur commentary here) HowAppealing notes Enforcement of DC Prescription Drug Pricing Law is preempted by US Patent Law.

UPDATE @ 12:30

On the subject of FISA revisions, AP Reports: Democrats Signal Deal on Terrorism Law

The administration believes the FISA court under existing law must approve certain spying because many conversations and contacts taking place overseas are routed through U.S.-based communication carriers, satellites or Internet providers.

Its latest proposal is narrower than what the administration sought in April: a slew of changes to the 1978 FISA law.

The stated belief (and concern) over the need for third party (court) agreement with certain surveillance because it routes through the US is a load of cheap (but pure) crap. It is a completely bogus technical argument. I'm sure it's being raised as cover for the real content of the law, which few people will read, and even fewer will understand.

And again we will be "treated" to a quick view (the latest proposal is what, exactly?) before the Congress passes the law. Same thing happened with detainee treatment and military commissions, and the negative fallout from those hasty pieces of legislation probably won't be appreciated until an interval of a decade or more has transpired.


Also from AP: Sunni Arab Bloc Quits Iraqi Government

"We're keeping an eye on the situation, but let's keep in mind that it is not a complete withdrawal from the political process," [White House press secretary Tony] Snow said. ...

Al-Issawi said the decision to pull out from the government followed what he called al-Maliki's failure to respond to the Accordance Front. It gave him seven days to meet its demands, and the ultimatum expired Wednesday.

Among the demands: a pardon for security detainees not charged with specific crimes, the disbanding of militias and the participation of all groups represented in the government in dealing with security issues.


Senator Who?

I think that's a C-SPAN error. Either that or a darn good job of plastic surgery and Senator Menendez now has a look-alike twin running around.

UPDATE @ 13:10

Senator Specter on the subject of Southwick, and he is dismissive of party-line votes, takes a swipe at Senator Leahy for bringing up the Clinton-era confirmation battles. Senator Graham on the same subject (Southwick nomination), I wonder if he'll brag about the Gang of 14 or his personal bottling up of the nomination of Haynes. Senator Graham is a bigtime hypocrite on this subject. He says the Senate shouldn't play politics or monkey with the nominating and confirmation process -- this from a Senator who personally monkeyed with the nominating and confirmation process.

How long is the summer recess? I'm thinking it's a good thing it's (a hair) under thirty-one days, but on second though, figure the return to the president of nominees Keisler, Kethledge and Murphy is inevitable. If not this recess, a later one.


... if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President ...

UPDATE @ 17:03

Is it my imagination, or is Senator Hatch rereading word for word, certain parts of his speech? He just made the 10 dollar per cigar tax mini-speech, and the "crowd-out" minispeech, twice in about ten minutes.

Senator Specter asked two things be placed in the record as though spoken; one relating to the nomination of Leslie Southwick, the other on modification to the FISA statute.

UPDATE @ 17:55

A stack of votes coming up, including the Lott alternative. Senator Grassley is against the Lott alternative, as are "all" the Democrats. "Will be" vote counts are predictions:

  • 2554 Dole (to create a budget point of order on certain excise tax increases) was REJECTED on a 32 - 64 vote
  • 2547 Bunning (to eliminate the exception for certain States to cover children under SCHIP whose income exceeds 300 percent of the Federal poverty level) was TABLED on a 52 - 43 vote
  • 2593 Lott (a complete substitute for the Committee-passed SCHIP bill) was REJECTED on a 35 - 61 vote
  • 2602 Kerry was REJECTED on a 36 - 60 vote
All of those amendments will be rejected.

UPDATE @ 18:06

Senator McConnell notes that he and Senator Bond will be placing a FISA proposal on the calendar, later tonight. Senator Reid notes that negotiations are underway with Admiral McConnell, members of the House, and some members of the Senate in order to get a bill that will pass with little debate before the August recess.

News reports indicate that the proposal is limited to the domestic interception of wholly international communications, and that the administration will be back later for the additional parts it proposed last year and this past April, such as immunity from prosecution for common carriers.

The sticking point is the extent of court oversight and auditing to prove that what is intercepted is in fact wholly international in character. The administration wants to be taken at its word, without any court oversight.

UPDATE @ 19:04

On the subject of GTMO detainees, JURIST: Doctors say Guantanamo force-feeding violates medical ethics. Who asked 'em? (who asked the doctors, that is).

UPDATE @ 19:40

Senator McConnell has filed a FISA bill S.1927, and it will be put on the calendar. Senator Reid later indicated that a DEM version of a FISA bill would also be filed, but it isn't ready now. So, there will be some form of debate between the two competing bills, but with Mikulski and Chambliss high-fiving each other over FISA revision, it's a safe bet that the debate won't be vigorous, and passage is assured.

UPDATE @ 20:39

Senate is adjourned until 9:30 a.m. Thursday.

The first two hours tomorrow will be debate on the lobbying and ethics bill, S.1, followed by a vote on the cloture motion to concur with the House amendment. Following that cloture vote, the Senate will resume consideration of SCHIP.


Prayers for all affected by the bridge collapse (I-35 W) in Minneapolis.

UPDATE @ August 2

I had a great preview of the day all typed in and sent, and blogspot ate it. I'm pissed.

Short version:

On ethics, compare S.1.EAH and S.1.PP text from this link, Especially review the Sections in the 500 range of the EAH text. Listen carefully to objections by Senators Coburn and DeMint.

When the Senate gets back to SCHIP, the McConnell amendment relating to the nomination of Leslie Southwick will probably be tabled. Senator Grassley entered a couple of tax code provisions rather quietly, check the Daily Digest for pending amendments.

With regard to the proposed FISA revisions, the text of the McConnell/Bond S.1927 begins near the bottom of page S10619 of the Record. I'll comment further after I have a chance to review it. One point of contention between "opposing" parties is well expressed in ...

    [Mr. SPECTER] As the Director of National Intelligence, Michael McConnell, outlined the current threat, there is an urgent need to enact this legislation promptly, certainly before the Congress adjourns for the August recess. Such modifications to FISA should have been enacted long ago and legislation has been pending for months as proposed by Senator Dianne Feinstein and myself.

    I am concerned by provisions of the proposed legislation which would give extensive authority to the Attorney General. ... Discussions have been undertaken with the Director of National Intelligence to substitute his position for that of the Attorney General; or, in the alternative, to substitute the Secretary of Homeland Security or some other official outside of the Department of Justice who has been confirmed by the Senate.

UPDATE @ 12:50

The ethics and lobbying bill is headed for it's predicable passage, almost by acclimation. Cloture was invoked with over 80 senators ready to vote, at least that number will vote AYE on the underlying bill.

SCHIP and FISA revisions will likewise pass with token opposition. It's easily possible for the Senate to get all this done today, and start the August recess without a need for any Friday votes. The Friday cloture vote on SCHIP can be vitiated with an agreement to vote on SCHIP itself.


Here's my quick, amateur read of the proposed FISA revisions. I'll look for a more thoughtful analysis by others after I describing my preliminary thoughts and opinion.

The FISA revisions as proposed in the McConnell/Bond bill give carte blanche to intercept any communications relating to any person located outside of the United States. "Nothing in the definition of electronic surveillance under section 101(f) [of the existing FISA law] shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

The statute seems to contain a path of circular reasoning in its "required proof the surveillance is within this part of the law." It requires the government to submit, to the FISA court, "the procedures by which the Government determines that acquisitions conducted pursuant to section 105B [surveillance concerning persons located outside the United States] do not constitute electronic surveillance." But see Section 105A above, it's not "electronic surveillance" if the surveillance is directed at a person reasonably believed to be located outside of the United States. The standard of review by the court on this point is "clearly erroneous."

All of this strikes me as unnecessary "noise," in that ALL communications terminating entirely at points outside the US can reasonably be presumed to contain foreign intelligence information. As such, interception of that communications never needed a warrant, and no clarification is required. [On a re-read and re-thought, I think the proposed law defines as NOT electronic surveillance, acquisition of any communications where ONE END (not both) is a person reasonably believed to be located outside of the United States. Read this way, the proposed law is more than unnecessary "noise." It permits surveillance that might otherwise be limited by the language of 50 USC 1801(f)(2)]

A substantial part of the proposed statute sets out the obligation of carriers of communications to cooperate with orders from the DoJ, NSA or other executive agency; sets out a method for them to resist; and provides that the FISA Court can order the carrier to comply, with the only requirement being that the communications sought is "not electronic surveillance" (Again, see above for the statutory carve out where electronic surveillance (as used in the ordinary vernacular) is defined in the law as NOT electronic surveillance when it is directed at a person reasonably believed to be located outside of the United States.

I speculate that the part of the proposed law that makes compliance with government-issued surveillance orders mandatory via a kabuki dance between the executive and courts is perhaps perhaps the only substantive purpose of the proposed law. There are a handful of communications carriers who have equipment based in the United States, who (it is reported) have resisted provided unfettered access to the data on their equipment. This law will put the force of a court, and the threat of being cited for contempt, behind the government's surveillance orders.

To further sweeten the pot, the proposed statute grants immunity to anybody who delivers communications intercepted pursuant to an executive or court order under this particular section of FISA, and also provides that the government will pay for the time, equipment, and any other facilities required to isolate and deliver foreign communications passing through US-based equipment.

UPDATE @ 13:50

A considerable discussion on the proposed FISA has been written at Balkinize and Volokh - including a cite to a Newsweek article that claims the FISA Court held certain aspects of the TSP as either outside of FISA or unconstitutional.

Secret Court Strikes Down Bush NSA Program
Jack Balkin - Aug 2, 2007

The FISA Fix
Marty Lederman - Aug 2, 2007

Secret Court Ruling Restricts Intelligence Community's Surveillance Powers
Newsweek - Aug 1, 2007 - Michael Isikoff and Mark Hosenball

Volokh: The Inside Story of Why Congress Is Now Willing to Amend FISA
Orin Kerr - Aug 2, 2007

UPDATE @ 14:10

S.1.EAH passed by a wide margin. (83-14) Bennett, Burr Coburn, Cochran, Cornyn, Craig, Crapo, DeMint, Ensign, Graham, Inhofe, Kyl, Lott, and McCain.


On a re-read and re-thought, I think the proposed FISA law defines as NOT electronic surveillance, acquisition of any communications where ONE END (not both) is a person reasonably believed to be located outside of the United States. In other words, this law covers not just communications terminating entirely at points outside the US, but all communications where one end terminates outside the US. If a FISA judge has held that "one end being foreign is not enough," as speculated in the Newsweek article, Orin Kerr (Volokh) and Marty Lederman (Balkinize), then this statute provides substantial relief -- assuming the FISA judge has no fourth amendment issue with "no reasonable expectation of privacy when one end of communication is in a foreign land."

The immunity from prosecution provision in the proposed law would be useful to dismiss a handful of federal and state cases where the carrier is the defendant.

I doubt the Democrats will mount a substantive objection to any of these provisions.

UPDATE @ 15:10

A stack of five votes to occur starting at 16:30 (4.30 p.m.)

  • 2557 Specter (to amend the Internal Revenue Code of 1986 to reset the rate of tax under the alternative minimum tax at 24 percent) was REJECTED on a budget point of order, on a 47 - 52 vote (v. 42-54 prediction)
  • 2558 Graham (to sunset the increase in the tax on tobacco products on September 30, 2012) was REJECTED on a budget point of order, on a 39 - 60 vote (v. 40-56 prediction)
  • 2540 Ensign (to prohibit a State from using SCHIP funds to provide coverage for nonpregnant adults until the State first demonstrates that it has adequately covered targeted low-income children who reside in the State) was REJECTED on a 43 - 55 vote (v. 35-61 prediction)
  • 2539 Ensign (to prohibit a State from using SCHIP funds to provide coverage for nonpregnant adults, period) was REJECTED on a 42 - 57 vote (v. 36-60 prediction)
  • 2537 Kyl (to limit SCHIP payments when a certain number of people are "crowded out" of private health care (more like bribed out by free federal money)) was REJECTED on a 37 - 62 vote (v. 32-64 prediction)

UPDATE @ 16:54

Over at, good news that Leslie Southwick has been voted out of the SJC. It will be interesting to see how Senator Reid disposes of the "sense of the Senate" resolution regarding giving the nominee a up or down vote in the full Senate. Rather than a motion to table or a direct up or down vote on the amendment, he may make a point of order that the amendment isn't germane. The point would be well taken.

As for a floor vote, the Republicans will have to keep the pressure on. Senator Frist sat for months on several nominations that were on the executive calendar, to the extent the nominations were returned to the president and eventually withdrawn from consideration.

UPDATE @ 20:54

I went out, bought lumber, and built and erected a section of fence. I see the Senate is still at it too, with another series of roll call votes -- rejecting one amendment after another.


President Bush puts pressure on Senator Reid to bring the nomination of Southwick to the full Senate, that's a good move.

UPDATE @ 21:08

Senator Reid describes a busy Friday, even given passage of SCHIP tonight. He says there will be a vote on a judge at 9:30 (not Southwick, there are five District Court nominees on the Executive Calendar), complete WRDA, complete Mental Health Parity (mystery to me, not sure I even got the phrase correct). FISA will be the big issue or project for tomorrow, and according to Senator Reid, the details of the statutory language or form of debate are still not worked out between the Republicans and the Democrats.

H.R.1424 - Paul Wellstone Mental Health and Addiction Equity Act. To prohibit treatment limits or the imposition of financial requirements on mental health and substance-related disorder benefits in group health plans which are not similarly imposed on substantially all medical and surgical benefits in any category of items or services under such plans.

Link to Conference Report on Water Resources Development Act - WRDA, passed by the House on August 1st. (H.R.1495)

UPDATE @ 21:49

Just a couple more votes left on SCHIP, the managers' amendment passed on a voice vote at 21:55, a roll call vote on a point of order (that funding the payout by raising taxes on tobacco products results in deficit spending in excess of the amount permitted in the Congressional Budget Act) [budget act point of order was waived 67-32], a roll call vote on the substitute amendment, then most likely a voice vote passing the underlying bill [the Senate agreed to the reverse of this procedure, voice vote passage of the substitute, followed by a roll call on the underlying bill [passed 68-31]. Should be wrapped up easily by 22:40 [passed at 22:33], then the usual round of congratulatory speeches, thank yous and so forth.


I just grabbed the WRDA conference report -- it's a 10 Mb PDF file -- and as is my habit, looked at the end first. The conference report is 823 pages long, and pages 730 to 823 (that 93 pages) is the list of earmarks, where each page has about from about 30 to about 40 entries. That's about 3500 earmarks in this one bill.

UPDATE @ 21:38

Judge from Oklahoma, DiGiusti, is the nominee who will be enjoy a vote tomorrow morning.

The conference report on H.R.2272 - 21st Century Competitiveness Act of 2007, was passed on a voice vote.

Speeches and wind-down ... Action's over, I'm out of here for the night.

UPDATE @ August 3

Here is a review of Senate references to FISA as it relates to the TSP, perhaps useful to get a handle on the timing and context of the "hotness" of the subject from December 2005 until the present, and to gauge changes in rationale for modifying (or not, as the case may be) the statutory framework. These links run inquiries against the Congressional Record in the stated years, in case the reader wants to peruse the action.

Senate - 2005 (24 total hits - nothing before Dec could be TSP related)

  • February 8 - Text of Feingold Bill, S.317, on Sections 215 and 505 of the USA PATRIOT Act
  • June 6 - Senator Wyden discussed crafting of USA Patriot Act (in Executive Session on the nomination of Janice Rogers Brown)
  • July 13 - USA PATRIOT Act modifications to FISA as to "John Doe roving wiretaps" and as to Section 215 orders (National Security Letters)
  • July 29 - USA PATRIOT Act renewal
  • September 29 - Nomination of John Roberts: "Judge Roberts' comments, and that he went out of his way to express surprise at the fact that this secret court even exists, suggests to me [Feingold] that he would address issues related to FISA, such as government secrecy and challenges to civil liberties, with an appropriately skeptical mindset."
  • November 18 - Senator Sessions previews extension of the USA PATRIOT Act
  • December - USA PATRIOT Act extension, debate in the wake of disclosure of existence of TSP (16 of the 24 hits)
Senate - 2006 (70 total hits - major events summarized below)

  • January 25 - Leahy indicates that it's time to modify FISA (good side by side of USA PATRIOT Act and FISA in Executive Session on the nomination of Samuel Alito)
  • February - Feingold says TSP is breaking the law, Senator Sessions says TSP can operate outside of FISA, and FISA should say that FISA is not the exclusive source of foreign surveillance authority
  • February and March - In the context of USA PATRIOT Act reauthorization
  • March 13 - Feingold introduces resolution of censure against President Bush
  • May 26 - Feinstein introduces legislation
  • May - Nomination of Michael Hayden
  • June 29 - Nomination of Kenneth Wainstein as Assistant Attorney General for the National Security Division
  • July - Senate hearing "FISA for the 21st Century" (zero debate, just notice of a hearing)
  • September - Multiple FISA Bills introduced, none passed (see list above)
  • November 14 - Senator Specter bill to have judicial review of TSP
  • December 4 - Text of Specter bill, S.4051

Senator Feinstein said, "On January 17, 2007, Attorney General Alberto Gonzales notified the chairman and ranking member of the Senate Judiciary Committee that the FISA Court had authorized the Terrorist Surveillance Program. Since January, the program has proceeded under Court supervision, as is required by FISA.

Senate - 2007 (15 total hits - major events summarized below)

  • January 4 - Text of Specter S.187 - Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2007
  • January 17 - Leahy welcomes President Bush decision to submit TSP to FISA Court
  • January 31 - Senator Leahy asks to see FISA Court order authorizing program - FISA court defers to President Bush (Leahy and Specter comments under "Fair Minimum Wage Act of 2007")
  • March 6 - Feingold proposed S.Amdt.372 on 9/11 Commissions bill, would modify application of National Security Letters (not TSP related)
  • March 28 - Feingold comments on National Security Letters report mentions need to change FISA to more clearly limit executive action (not TSP related)
  • April 16 - Introduction of Specter/Feinstein S.1114, FISA is sole source of TSP surveillance authority
  • May 11 - Senator Whitehouse criticism (noted and linked near top of this long post)
  • July 25 - Senator Biden's bill, S.1876 - National Security with Justice Act of 2007. On the subjects of renditions unlawful enemy combatant, habeas corpus (not TSP related)
  • August - McConnell/Bond (administration) FISA bill, S.1927
That ALL of the Senate action on FISA/TSP. One can see months-long gaps in chatter, and where chatter pops up, it is for the most part in the context of USA PATRIOT Act debate, or beating up an identified person in the administration. FISA/TSP has rarely been brought up, in its own right, other than an initial flurry of action in December 2005, and another around September 2006. Senator Specter piped up in late 2006, early 2007, but the TSP issue was tamped down when the administration subjected the program to the FISA court in January 2007.

After the program was submitted to the FISA Court in January 2007, interest in FISA was again precipitated by the administration, when, in April, it submitted its 66 page proposal for FISA revisions to accommodate the TSP. Then Senate silence, except for Senator Whitehouse (on reflection, what an unfortunate name in that it creates a risk of critical confusion if I'm not careful with my words), until the end of July. Most curious.

The administration has also been relatively quiet. The general evolution is from "the TSP is legal as part of the Authorization to Use Military Force (AUMF)" and "the TSP is within the executive's inherent authority," to, following the mid-term election, submission of the program to the FISA Court. My sense is that the administration is bluffing on its certainty that its surveillance actions are clearly constitutional -- otherwise it would not have submitted the program to the FISA Court.

White House - 2002 to 2007 (48 total hits - 43 of them after TSP was disclosed) Other than a reporter beating up on Gonzales, from May 4 to July 28, 2007, the White House web site has no mention of a need to modify FISA.

One big chunk from Tony Snow's performance on January 27, as he explains the administration's decision to submit the TSP to the FISA Court. Pardon the length, it's excerpted in full. I've broken it up a bit with comments following certain Question and Answer exchanges.

Q Tony, what is the thinking behind the Justice Department's decision to put the warrantless wiretapping program under the authority of FISA?

MR. SNOW: What's going on actually is the National Security Agency conducted the Terrorist Surveillance Program. And in 2005, long before the existence of this program was known publicly, there was the thought that perhaps one ought to see if it is possible for the President to continue to exercise his constitutional ability to protect the American people and to place it under the FISA statute.

Now, let's back up a little bit, September 11, 2001, we have the attack on the United States. Congress grants authorizing language that says to the President use "any necessary means." That would include trying to figure out if people are on our soil trying to kill us. Pursuant to that authority, the President authorizes a surveillance program.

But what's happened is that the FISA Court, itself, also had not been presented with a situation quite like this. The FISA Court has published the rules under which such activities may be conducted. I think it's a way of clarifying, I think to the satisfaction of a lot of people, how these things ought to proceed with the engagement and supervision of the FISC -- the Foreign Intelligence Surveillance Court. And what we've done in the last week is we've been notifying, first the Intelligence Committees at the end of last week, and then the Judiciary Committee today.

What happens is that the program pretty much continues -- the program continues. And the Foreign Intelligence Surveillance Court has put together its guidelines and its rules, and those have met administration concerns about speed and agility when it comes to responding to bits of intelligence where you may be able to save American lives.

It's also one that means that this is not -- this is surveillance in which -- well, I'll read you from part of the letter that went to Senators Leahy and Specter today. It says, "Where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associate terrorist organization." That's one of the most important things. One person on American soil, one person on foreign soil. One probable cause to be suspected as a member of al Qaeda.

So we are satisfied not only that it meets the conditions of national security, but in this case, also, I think answers -- even though we've been doing this long before the criticisms arose, has the ancillary benefit of being able to deal with political objections a number of people have been raising, you need to do it within the Foreign Intelligence Surveillance Court. And now I think everything is done under FISA. The President will not reauthorize the present program because the new rules will serve as guideposts.

Q Well, the President has always argued that -- I mean, he has the ability, he has the authority not to --

MR. SNOW: Yes, and he still believes that.

Q -- not to use FISA to get authority, because it was too cumbersome or it took too much time to get information about a possible terrorist attack. So what has changed? What has happened since then?

MR. SNOW: We can't tell you -- what has been going on is there's been a lot of work over a two-year period to try to address those speed and agility questions. And to the satisfaction of the head of the National Security Agency and the Director of National Intelligence, as well as the President and the Justice Department, these new rules effectively address those concerns.

Q Could I follow up on that, Tony? So if it took two years of work to address those speed and agility questions, why couldn't that work have been done initially, when this program was first created?

MR. SNOW: Look, at this particular point -- it's a good question. The fact is, it's been going on for the last two years.

I see an expression that submission of the TSP to the FISA court is NOT required. But that submission was viewed as not objectionable (as it was before, because it was "too slow" or "too cumbersome"), after obtaining court-directed procedures that were not too cumbersome as far as the administration was concerned.

The following exchange is funny in light of Gonzales's recent testimony about "the program."

Q Tony -- and also to follow up on that -- so you said the President will not reauthorize the present program?

MR. SNOW: Right.

Q In other words, we now have a new program called --

MR. SNOW: No, you have the same program it operates under, but it's really a matter of your legal authority prior to that. It was presidential order. Now, in this case, the program continues, but it continues under the rules that have been laid out by the court.

Q So it's not -- it is not operating under presidential order anymore? It's operating under --

MR. SNOW: Well, as this order expires, I don't exactly how the handoff works, but he will not reauthorize it, so that there will be no doubt. I don't know at what point this takes effect. My guess is it took effect some time last week, but I'm not sure.

Not reauthorize the present program, no, there's no new program, we're just continuing, etc. It's no wonder people are confused, with this sort of "clarity" that this raw material provides.

Q And as you know, there have been a number of efforts on Capitol Hill, and notably Senator Specter has been pushing for legislation -- is it your view that these new rules make those efforts moot, there's no need for legislation now?

MR. SNOW: I'd address that to Senator Specter. He is one of the people who is being briefed on this today.

Q But I'm asking you what the President thinks? Does he think there's no more need for legislation?

MR. SNOW: The President -- again, let's -- again, this measure began, Sheryl, long before there was a political controversy. And this is the culmination of a lot of hard work over a couple of years. I think the question, rather than what does the President think Senator Specter is going to do, I think it's probably a lot easier, rather than trying to bounce the question off the President's brain, just ask Senator Specter.

Q No, Tony, the question isn't what does the President think Senator Specter is going to do. The President came out in support of Senator Specter's bill, so the question is, does the President now believe that that bill is no longer necessary?

MR. SNOW: Well, we will see, but we think it meets the concerns of members of Congress, which is the point I tried to make earlier. ...

I take this Q&A as junk, but Tony seems to be asserting that the White House had been working for a couple of years to get the TSP under the umbrella of the FISA court or some unspecified statutory framework, and that the move in January was not a reaction to Congressional pressure. This comment has a sort of "Putting the TSP under FISA has been our plan all along," ring to it.

Q On the FISA move, rolling the terrorist surveillance program under the FISA Court. You're suggesting that this is a voluntary move by the administration, not an action that's tied to federal court action, or --

MR. SNOW: No, no, no, no, no. No. No. As a matter of fact, it may be interesting to see how it plays out in federal courts, but no, this is not a response -- again, Bret, this has been going on for two years.

Q But if it has been going on for two years, why wouldn't you say that during the hubbub when we spent a week dealing with this, instead --

MR. SNOW: Because the Foreign Intelligence Surveillance Court does not like to have its business discussed in public, and only because of the public revelation of the terrorist surveillance program are we announcing this at this juncture. Typically, they are properly very protective of things that go before them. And as a result, we don't talk about them.

And, yes, it's an example of a case where we take hits for doing what's right, rather than getting credit for what seems to be expedient.

Q But what's different here with the NSA program now? I mean, why are you doing it now? What's changed that this is now acceptable --

MR. SNOW: The court has put -- the court has drafted regulations for the program. I mean, this -- the court now has issued an order that governs these sorts of activities, so it's really timed to what the court has decided and promulgated.

Q And it has nothing to do with acknowledging any action on the Hill or --

MR. SNOW: No, I don't think the Foreign Intelligence Surveillance Court sits around and goes --

Q But you -- but you saying, okay, they're going to have oversight here --

MR. SNOW: No, this is a result of the order having been completed by the court.

Q Does that mean you don't have to get warrants, then? Or you do have to get warrants?

MR. SNOW: No, you look at the Foreign Intelligence Surveillance Act -- the court now will review all such activities.

Another junk Q&A with the same theme as above, and here Tony seems to be blaming the FISA Court for the two year delay in implementing procedures that were agile enough to meet the country's security needs.

Q Just back on FISA, I mean, obviously, there are going to be some people who look at the timing of this, and Attorney General Alberto Gonzales is supposed to go before the Senate Judiciary tomorrow. I mean, people are going to see this as, like, look, politically motivated --

MR. SNOW: But, again --

Q -- that he would take a hit tomorrow, that he would be beaten up over this, and he announces today --

MR. SNOW: I don't think so. I don't think so. I don't think so. Number one, notifications began late last week. Number two, it's the FISA Court, which is the Foreign Intelligence Surveillance Court, which has done -- what you're doing is you're accusing that court of engaging in political activity to, what, bail out the Bush administration? I don't think so. They look at their business as being national security, and they are very professional, and also -- they are determined to protect what they see are their responsibilities under statute. So I think it's a real stretch to try to say that that court somehow is engaged in a politically timed activity.

I don't think -- what I think will probably happen is that members, probably as much in closed session as open session, will probably wish to talk about what we have -- the readout we've gotten, at least out of the Intelligence Committees, is that members are very happy with what they've seen. It could be the case that the Attorney General will go up there, people will say, wow, that's great. Now, they may say, why didn't you do it before? They may ask many of the questions -- the process questions that you're interested in. But it also may be the case that they're going to say, we're glad this happened.

Q Why the timing of the announcement today, though, before he goes before the Senate Judiciary? It was made earlier, why not announce it earlier?

MR. SNOW: You mean why didn't we do it Friday, instead of today? I don't know. You try to do due notification. We know that members of the Intelligence Committees have been notified, and this is the time for notifying members of the Judiciary Committees.

And here, Tony is again asserting that the timing of submission of the TSP to the FISA Court was driven by the FISA Court ("what you're doing is you're accusing that court of engaging in political activity" vis-a-vis the timing). An interesting attack by the press, that the announcement was timed to preclude tough questioning of AG Gonzales.

Did something change between January and April, to prompt the administration to propose sweeping "modernization revisions" to FISA? The present "technology has changed," "we need to modernize FISA" cry was different before January 2007 (too long to get warrants), and has been subdued since then.

Jane Harman Statement on FISA Modernization - July 16, 2006

Since 9/11, Congress has modernized the Foreign Intelligence Surveillance Act (FISA) at least a dozen times.

... many of us in this Committee and in the Judiciary Committee authored the LISTEN Act, the Lawful Intelligence and Surveillance of Terrorists in an Emergency by the NSA Act, of 2006.

The LISTEN Act reiterates that FISA is the exclusive way to conduct surveillance against Americans. It states that the Authorization to Use Military Force does not authorize a violation of a statute passed by Congress and signed by the President. And it provides NSA and the Justice Department with the necessary resources - staffing, information technology, etc. - to obtain warrants in near real time.

...many of us believe that the surveillance the President wants to do can and must be done completely under the current FISA system.

The Fourth Amendment states: "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The key words here are "particularly describing...."

Justice Department Briefing on FISA Authority - January 17, 2007

But let me say very quickly that we in the administration continue to believe that Congress should enact FISA reform legislation to modernize FISA statute to reestablish what we think is the proper, original focus of FISA on the domestic communications of U.S. persons. We believe that debate should continue to happen, that Congress should consider modernizing FISA very quickly in the new Congress. ...

The workload for the FISA Court is increasing. There's no doubt about it. It's increasing all the time, and this is a very significant development that will likely very significantly increase the workload on the court. One of the things that was achieved by the FISA modernization legislation that Congress has been considering is that it would very significantly refine the scope of what the FISA Court needs to do in a way that will make it much more efficient and streamlined and will cut down significantly on the burden currently facing the FISA Court.

I think this is a reference to "approval of process or rules" instead of "review of application of process or rules to a line of surveillance aimed at a specific target." That is, a procedural "modernization," not a change in the physical swath of surveillance.


I see an Orwellian parallel in the administration's rhetoric on FISA, as I did under its detainee treatment. Under detainee treatment, the doubletalk involves the difference between "torture" in the casual vernacular and "torture" as defined by statute. They are two VERY different things. In the context of FISA, the pivot phrase is "electronic surveillance." The statutory definition of "electronic surveillance" excludes all surveillance where one party is believed to be outside of the United States.


My take on the administration's current push is that it is primarily motivated by a desire to obtain cooperation from recalcitrant communications carriers, and otherwise seeing to it that all carriers (AT&T, Qwest, etc.) be under executive order having the support of a court order to acquire a broad swath of communications. The administration bill provides a grant of immunity from suit (which gets rid of a good handful of currently pending lawsuits), and provides for the carriers to be paid from federal coffers for the hardware, software and manpower required to acquire and forward the communications pursuant to government order.

"Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section."

"The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (e). "(e)(1)immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target ..."

In order to broaden the swath of acquired communications, the statutory definition of "electronic surveillance" is crafted as discussed above.

The structure of the proposed bill necessarily involves the FISA Court, so whatever activity is undertaken, and I'm reluctant to characterize it as "with warrant" or "without warrant," is supported with the imprimatur of legislation and the FISA court. There is no doubt that statutory schemes can eventually be found to be unconstitutional, and I would caution on concluding that "if the law is changed, all the surveillance becomes fully legal/constitutional."

My ultimate conclusion is the same now as it was in December 2005, there is no way to analyze the constitutionality of the surveillance (and that is the analysis of primary importance) outside of a specific case or controversy.

UPDATE @ 09:58

Congratulations Judge DiGiusti, on your 96-0 confirmation.

UPDATE @ 10:50

I expect to see a marked lack of clarity in the FISA debate. Hang on for an emotional presentation from both sides, and an exceptionally large dose of baloney. Senator McConnell is saying that the administration is putting up with a requirement to obtain warrants to conduct overseas surveillance. I doubt it.

If there is negotiation between the DEMs and Republicans on FISA, we'll see, as we did with torture, the primary drive of the administration. Under torture, the key was found in the statutory definition of "serious physical harm," which (along with retroactive application and immunity) survived through a smoke screen that passed for substantive debate.

With FISA, the issue is NOT as to who will oversee the audit - I'm sure the administration has less attachment to retention of oversight by the DoJ than it has to obtaining a legal (court) process that will effectively compel participation by communications carriers, and at the same time, killing off the currently pending court cases where states and individuals are suing those carriers for violations of various state and federal laws.

I predict the provisions for redefinition of "electronic surveillance," legal (court) compulsion to communication carriers, immunity to communication carriers, and federal payment to communication carriers for hardware and manpower will remain intact through the FISA debate -- those items are not negotiable to the White House.

UPDATE @ 11:11

I still don't understand the reluctance to intercept purely domestic communications. What if a "go" command or planning activity is entirely between a boss and sleeper currently in the United States? How can protection be effective if it submits to the burden of warrants and court approval when the surveillance is aimed at detecting wholly domestic communications of that nature, from unknown foreign actors?

If the House adjourns for recess out of partisan pique, how is any FISA bill going to get to the president before recess?

Senator Bond says the FISA Court has asked for passage of this statute so it can get out of the business of issuing warrants for foreign targets. That can be read as corroborating the Newsweek story and Washington Post story that the FISA court changed the terms of its practices regarding warrants. In a sense, the FISA Court may be saying, "Now that we view FISA as requiring more warrants, please revise it to suit our new reading."

When the debate gets on a "percentage inability to intercept" it's a reference to the number of carriers who have refused to have switches installed that "sweep it all in," and send duplicates of all communications traffic from the communication carriers to the government.

UPDATE @ 11:48

H/T to HowAppealing, DC Circuit Court rules on the search of Representative Jefferson's Congressional Offices, holding that legislative privileged materials must be returned to Jefferson (sight unseen by the searcher), but the rest of the material was properly, legally, and constitutionally seized. The concurring opinion has the better argument for why the search was proper. (pdf or court ruling)

UPDATE @ 13:34

President Bush Meets with Counterterrorism Team - August 3, 2007

When Congress sends me their version [of FISA revisions], when Congress listens to all the data and facts and they send me a version of how to close those gaps [in intelligence], I'll ask one question, and I'm going to ask the DNI: Does this legislation give you what you need to prevent an attack on the country? Is this what you need to do your job, Mr. DNI? That's the question I'm going to ask. And if the answer is yes, I'll sign the bill. And if the answer is no, I'm going to veto the bill.

There is no tool that can prevent an attack, and certainly, a tool that does not sweep in wholly domestic communications can't, with a straight face, be held as adequate to prevent all attacks. The look on President Bush's face seems to telegraph a knowing sorrow in advance.

I hope we aren't territory where we're going to parse the meaning of the word "an" in the sentence "Does this legislation give you what you need to prevent an attack."

Government as the protector. Any and all incidents will be used to increase government oversight and reduce individual autonomy - 'tis the nature of the beast. I said, in the wake of Katrina, one of the ways our society is being made soft is that the people reward government overpromises (with votes), and then they play political "gotcha" when the overpromise plays out in fact. Watch how many people play politics instead of playing serious (I'm referring to after a successful attack -- see the politicization of the successful attack of September 11, 2001).

UPDATE @ 13:40

It isn't clear which house of Congress will handle the DEM/Administration negotiation of FISA modification. Nothing from the DEMs has appeared in the Senate, and there is significant activity on the issue (mostly bickering - driven either by shortage of time, or by nickel and dimeing) in the House.

Rep. Hastings charges that the administration is moving the goalposts:

  • prospective v. retrospective immunity to carriers
  • style of approval from the court (program v. target)
  • etc.

The Republicans don't want to vote on the Democrat proposal, so clearly, the Democrat proposal (Jane Harman's I take it) doesn't meet the non-negotiable requirements of the administration.


Another nominee withdrawn: Richard E. Hoagland, of the District of Columbia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Armenia, which was sent to the Senate on January 9, 2007.

UPDATE @ 15:58

Both chambers of Congress are on recess at the call of the chair. Rather unusual to have all of Congress out, and be working hot and furiously on a specific project that has a deadline only a few hours out (at most, two days), that being the set of FISA revisions the administration says it must have pronto, or else there will be another successful terrorist attack on US soil.

UPDATE @ 17:15

The Democrat's proposed FISA revisions, in answer to the DNI proposed "11 pages of revision" is presented at a couple of posts at Balkinize.

What's Going On with the FISA Fix? - Aug 3 @ 3:16 p.m.

What the White House Doesn't Like About the FISA Fix - Aug 3 @ 4:25 p.m.

The text of the Democrat's proposal (H.R.3356) is previewed at this pdf link (50 kb) - I may convert to plaintext for comparison purposes, but right off the but I see this difference, where the DNI wants to capture conversations with ONE side being on foreign soil (but, in casual sales talk, says it's being hampered from obtaining communications when "both sides" are on foreign soil), and the Democrats statute tracks the DNI's casual talk:

Sec. 105A. [DNI] Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

--- vs. ---

Sec. 105A. [DEM] Notwithstanding any other provision of [FISA], a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

UPDATE @ 18:15

The Senate is still out, subject to the call of the chair.

Link to the text of the competing DEM and DNI proposed FISA revisions. Interesting that Senator Bond expressly said S.1927 is the DNIs bill, and is not the work of the Congress.

UPDATE @ 20:10

The Senate is back on the job. The Democrat's alternative to McConnell/Bond S.1927 is Levin/Rockefeller S.2011.

Senator Reid is put off by having Mike McConnell waiting outside the Senate to advise on the "agreeability" of the legislation. Senator Feingold is likewise put off. Hey, Senator Bond, in his presser, expressly said this was a DNI bill, not a Senate bill.

Senator Lieberman wishes this debate wasn't occurring at all, preferring the issue would be debated in executive (private) session, if debated at all. Too much publicity. I said elsewhere, "This is by far the most screwed up legislative process I have ever witnessed. Lieberman is right, if the Congress is going to act this stupid, they should do it in private."

It sounds as though there will be votes on both proposals, S.1927 and S.2011, at some point in the near future, perhaps even later tonight. If so, S.1927 passes, S.2011 is rejected.

Given the "how much time remains?" questions (and answers) I deduce that voting on S.1927 and S.2011 will commence at 21:15 tonight. An exceptionally small number of senators in the chamber for what is a pretty important debate in the scheme of things. Feingold, Feinstein, Lieberman.

Senator Feinstein will vote AYE on both proposals. Either proposal requires 60 votes to pass.

UPDATE @ 21:10

The latest from Marty Lederman: What the White House Says - August 3, 2007

Senator Nelson of Florida will also vote for both bills. I wonder what would happen if both passed? Some measures are, I think, mutually exclusive.

Senator Specter rises to say he thinks this is a troubling way to legislate. Duh. At any rate, he notes, accurately, that between the Bond/McConnell and the Levin/Rockefeller bill, the Bond bill is the only one that President Bush would sign.

Senator Mikulski finds either proposal to be acceptable - which means the Bond/McConnell measure will get the 60 votes it needs.

UPDATE @ 21:15

This has been, by far, the most fouled up example of legislating that I have ever witnessed, and having watched the Senate fairly closely for a few years, well, maybe my horizon is too limited and they've done worse on other occasions.

Voting underway .. predictions and links up in advance.

McConnell/Bond S.1927, FISA modernization in a DNI-drafted style, was, at 9:35 or thereabouts, PASSED on a [predicted 65 - 25] 60 - 28 vote (60 votes needed to pass).

Rockefeller/Levin S.2011, FISA modernization in a DEM-drafted style, was, at 9:52 or thereabouts, REJECTED on a [predicted 58 - 32] 43 - 45 vote (60 votes needed to pass).

If both bills pass, and the House passes both bills, President Bush gets to be "the heavy" by signing one and ignoring the other one.

UPDATE @ 21:53

Senator Reid asks for consent that at a time to be determined by the leaders, the Senate would take up the WRDA conference report with 4 hours of debate equally divided. Somebody [Russ Feingold] objected. Senator Reid didn't say a word and walked away from the podium. He looked to be in a state of shock.

The Senate will pass H.R.3311 to fund replacement of the I-35W bridge in Minneapolis, Minnesota.


The return of judicial nominees, if it occurs, won't be announced at the time of adjournment for the August recess. One needs to check the list of nominations returned to the President.

UPDATE @ 22:15

Senator Dodd is propounding a series of UC requests, including one to give the District of Columbia a seat in Congress. Senator Thune, acting for the minority, is objecting to each as it is brought up.

Senator McConnell offers a mid-session summary, taking stock of how the Senate has done. Senator Reid follows up with his version of recent history.

UPDATE @ 23:07

The Senate is adjourned until noon, September 4th. Lots of bills passed in the closing minutes, and lots of nominations handled. All nominations held over except one specifically named.

First legislative business will be the Appropriations bill for Military Construction.

Ordered, That at 1:00 p.m., on Tuesday, September 4, 2007, the Senate proceed to the consideration of H.R. 2642, an act making appropriations for military construction, the Department of Veterans Affairs, and related agencies ...

Bier time!

UPDATE @ August 4

From the Daily Digest for August 3, 2007 (the text of the Record is unavailable) ...

Measures Passed:

Foreign Intelligence Surveillance Act: By 60 yeas to 28 nays (Vote No. 309), Senate passed S. 1927, to amend the Foreign Intelligence Surveillance Act of 1978 to provide additional procedures for authorizing certain acquisitions of foreign intelligence information, by the order of the Senate of Friday, August 3, 2007, 60 Senators having voted in the affirmative, and after taking action on the following amendment proposed thereto:

Adopted: McConnell/Bond Amendment No. 2649, to provide a sunset provision.

The text of the sunsetting amendment and the competing measure, Rockefeller/Levin S.2011, isn't yet available either.

There is significant interest in the DEM crossovers. The official vote tally isn't yet available, but the following Democrats certainly voted AYE ...

Bayh, Carper, Casey, Conrad, Feinstein, Klobuchar, Inouye, Landrieu, Lieberman, Lincoln, McCaskill, Mikulski, Pryor, Nelson (FL), Nelson (NE), Salazar, Webb

Marty Lederman at Balkinize, in Senate Passes Administration Bill, makes an observation that I did two days ago - "The key provision of S.1927 is new section 105A." True, as far as it goes. But I see other parts that are likewise important; particularly the immunity provisions and engagement of the courts to compel communications carriers to participate as ordered by the searcher.


On the return of judicial nominees, again from the Digest ...

A unanimous-consent agreement was reached providing that the provisions of Rule 31, section 5 notwithstanding, all nominations remain in status quo, except the nomination of Reed Verne Hillman, of Massachusetts, to be United States Marshal for the District of Massachusetts.


Another withdrawal; "Richard E. Hoagland, of the District of Columbia, to be Ambassador to the Republic of Armenia, which was sent to the Senate on January 9, 2007."

UPDATE @ 16:30

More FISA material from Balkinize ...

Two Questions About the FISA Amendment

Good questions. The FISA changes just passed could have been passed in 2001 or 2002 -- or even before then, seeing as how the pertinent technologies (internet, cell phones) were in full bloom at the time.

As for the protection of the fourth amendment, I cynically ask the end-game question: is it reasonable to have an expectation of privacy, given the threat of terrorism? If there can not be a reasonable expectation of privacy, then there can not be a violation of the fourth amendment. Recall that "reasonable" is defined by the government, not by the individual.

UPDATE @ 22:18

S.1927 passed the House (no surprise) on a 227-183 vote at 22:18.

I posted these words (they are my point of view, in my own words) elsewhere, but I want to assert them broadly ...

I'd like to kick this Wasserman-Schulz bitch right in the crack of her ass, drawing in the Congressional action on Schiavo as some sort of parallel to FISA modification.

I'm generally tolerant of idiots and malfeasants, but have no tolerance for raising Schiavo for a political point. There is a serious and legitimate issue of civil law in the arena of "live or die based on rulings of civil courts," and Congress has a legitimate role there. That they (Congress) aren't able to verbalize their legitimate role in civil law as a general case, instead of as a specific case, is evidence of their incompetence, indifference, or decadence. The issue of privacy compromised at the hand of the court is pale compared with the issue of life compromised at the hand of the court. That Congress lacks good judgment is a given, but Wasserman Schultz's use of Schiavo in the context of FISA is beyond the pale.

Yes, I am dogmatic about the sanctity of life. If you disagree with me, then you aren't.

UPDATE @ August 5

The daily index to the Congressional Record is still missing the Senate entry for August 3, 2007 ... but the Record for that day is online and searchable. Here is a search link, which brings up House and Senate debate on FISA, including the Senate roll call vote. (other than the roll call vote, House action of yesterday isn't up in any form as of 10:20 a.m. today)

Congressional Record Search for "FISA" after August 2, 2007

Below links won't work until the Library of Congress prepares the index:

Pages S10856-57 (Kyl, McConnell)
Pages S10858-61 (Bond, Chambliss, Hatch, Gregg - Recess from 11:33 to 20:08)
Pages S10861-72 (1 hour debate & passage)
Pages S10881-83 (Kerry, 1 paragraph in favor of Levin/Rockefeller)
Pages S10991 (Reid gives kudos to Senator Whitehouse for his work on the FISA bill)

The amendment (No. 2649) to S. 1927 is as follows:

  At the end, add the following:
  (c) Sunset.--Except as provided in subsection (d), sections 2, 3, 4, and 5 of this Act, and the amendments made by this Act, shall cease to have effect 180 days after the date of the enactment of this Act.
  (d) Authorizations in Effect.--Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).

That sunsets everything except the title (Section 1) and transition procedures (Section 6). Link to the text of the House Democrats and DNI proposed and passed FISA revisions.


Mr. REID. Mr. President, I ask unanimous consent that on Tuesday, September 4, at 2:30 p.m., the Senate proceed to executive session to consider Executive Calendar No. 278, Jim Nussle, to be Director of the Office of Management and Budget; that there be a time limit of 3 hours for debate on the nomination, 2 hours equally divided between the chairman and ranking member, 1 hour under the control of Senator Sanders; that at the conclusion or yielding back of the time, the Senate vote on confirmation of the nomination, the motion to reconsider be laid on the table, the President be immediately notified of the Senate's action, and the Senate return to legislative session.


Scrounging around the web, I read that a FReeper with the handle "T'wit" died. He and I crossed paths on one or two occasions, and he was a complete gentleman. The world is a much lesser place at his passing. My heartfelt prayers go out to his family and friends on their personal loss.

UPDATE @ August 6

Totally off the subject of the Senate, one of our dogs met a skunk last night.


S.1927 was signed into law yesterday. No time wasted there.

Friday: White House Spin - FISA Fact Sheet (promulgated on May 1 as In Focus: National Security, This fact sheet appears on WH web site -only- on May 1, July 12, July 14 (Saturday), July 21 (Saturday), July 24, July 28 (Saturday) and August 3 & 4. The fact sheet does not appear in June)
Saturday: President Bush urges the House to pass S.1927
Saturday: President Bush on House passage

I also want to remind Congress that our work on reforming the Foreign Intelligence Surveillance Act is not complete. When Congress returns in September, we need to work together on additional reforms, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.

That's about as close to an admission as one could get, "need to provide retroactive liability protection for an allegation?" The object is to get certain civil suits out of court, because there is in fact a risk of liability. Even though the disclosure of statutory violations is protected (effectively, I think) by the assertion of state secret, it's "lower profile" for the government to have the cases removed by statute, instead of by asserting state secret.

UPDATE @ August 7

Just a point of curiosity, that the Congressional Record still has no index for August 3rd, but even if it did, it appears to not contain the text of the rejected Levin/Rockefeller S.2011 FISA bill.


I spent some time yesterday again researching the contention that the NYT publication, in December 2005, of a story about NSA activities, could amount to a violation of 18 USC 798.

I looked at the contention back in December 2005, and on February 7, 2006 stated that disclosing a legal POLICY relating to snooping does not violate 18 USC 798, but that if a violation of 18 USC 798 is found, the penalty is forfeiture.

Here is the series of posts at Just One Minute (it's easier to hit just one then scroll through the comments), with the more useful material being the case and other reference cites toward the end. The preliminary material rehashes the need to read the statute and properly apply all of its words.

13:01, 13:22 (parallels with the Libby case), 14:15, 14:31, 14:52, 15:05, 17:15, 19:15, 20:39 (cites to cases with some excerpts), 23:48 (two more case cites).

The thread contains a good example of weak argument too, where one "Cecil Turner"

  • creates straw men
    1. that my argument supporting the conclusion that "NYT publication is not a 798.a.3 violation" depends on disclosure of technical information, after I specifically highlighted the Chicago Tribune case of Japanese ship movements (describing ship movements is not itself technical - but disclosing that we knew the ship movements in advance meant we had cracked the Japanese code) at 14:15, again at 15:05, at 20:39 and at 20:47; and after I gave hypothetical examples of publication that WOULD constitute a violation, e.g. "tap locations, which [telco] carriers are participating, radio interception and filtering capabilities ... "watchlists," or "keyword lists."
    2. the leaker may have disclosed information that leads to procedures and methods (the discussion is whether the publisher violated 798.a.3 - at 14:52 I specifically admitted the leaker might be in violation)
  • changes the subject to whether or not the publisher was aware the published information was classified
  • asserts in a conclusory fashion (that is, without making links between the contents of the NYT story and the legal construction of "disclosing procedures and methods used to intercept"), that the NYT publication may constitute disclosure of methods and procedures because it recites related classified information

I've crossed paths with this fellow before, and while I enjoy the context he provides for the introduction of facts, cases and statutes, my attempts to carry on a serious and focused discussion with the fellow have been exercises in futility and frustration.

My point of view on the issue of the NYT publication hinges on the difference between disclosing a legal policy (given the option to snoop with and without a warrant, where either option is legal, choosing to undertake an increased level of warrantless snooping); and disclosing the methods and procedures used to implement that policy. The NYT story did not disclose a previously unknown capability, it disclosed a policy decision that resulted in increased usage of a previously known capability.

What would constitute disclosure of a classified procedure or method? Not exhaustive, largely gleaned from cases on the point ...

  • disclosing a specific communication whose author used cryptography
  • disclosing a specific communication where the participants took privacy measures such as locating themselves in a secure room (e.g., embassy)
  • providing a description of a previously unknown technical capability (e.g., Orin Hatch saying "we knew where Osama was by triangulating satellite phone signals")
  • describing the details used to focus searching (keywords, names on watch lists)
  • disclosing details that lead to learning the tools used to intercept and decode
  • identifying compromised communication paths (e.g, all traffic through AT&T's international switch in NJ is captured and analyzed)
  • identifying communications methods that are known to be secure (e.g., the NSA lacks the capability to decode steganography)
These statements do not constitute disclosure of a classified procedure or method.

  • We will use every tool at our disposal to track down and bring justice to international terrorists
  • We will snoop on suspected drug lords and terrorists
  • The NSA is capable of intercepting telephone and e-mail traffic
  • NSA activity involves breaking cryptographic codes
  • The NSA uses watch lists and keyword analysis
  • Jabara's communications were intercepted by the NSA, without use of a warrant

UPDATE @ August 8

The online Congressional Record now has the August 3 Senate index.


Slow news these days. Jonathan Adler has captured an interesting dissent by Judge Rogers in the Abigail Alliance case.


Judge Vaughn Walker will be conducting a hearing tomorrow afternoon on the multi-district consolidated litigation on the alleged turnover of call-logs from telecommunication carriers to the NSA [Northern District of California - M:06-cv-01791-VRW]. The recent (August 3rd) reply memo by the government is fascinating. The judge's ruling will be a big deal, whichever way it goes.


A first for me, having a comment taken as racist and sexist. I wonder what I said that set off that (pretty good) rant. That the press can't turn followers into independent thinkers? That the press is self serving?

UPDATE @ August 9

Random items that caught my eye since yesterday's spartan comments ...

Guard troops pulled from border - a reference to National Guard at US/Mexican border
Breast implants linked to suicide
Mexico is in a war on terror (on the connection between drugs and "terrorism" - or, not all terrorism is driven by religious zealotry)
Hearing sought on Islamic, Mexican ties (but there is an overlap between drug terror and religious terror)
Federal Civil Rights lawsuit over a couple seen fooling around in a car (you have to read the opinion to appreciate the downside risk in taking something to court)
ACLU seeks FISA Court orders that stymied the Terrorist Surveillance Program
A slew of CRS reports - I read "Iraq: Oil and Gas Legislation, Revenue Sharing," "Security and Prosperity Partnership of North America," and "China Naval Modernization: Implications for U.S. Navy Capabilities," but there are many others.
Intelligence Authorization Act For Fiscal Year 2008 - May 7, 2007 Committee Report 110-131 accompanying H.R.2082 (minority views are a good place to start reading)


I did some research into the so-called "negotiations" between Admiral McConnell and the Democrats on the subject of FIS revision. Results with links posted at The Next Hurrah. I think the Democrats manufactured the "McConnell reneged" issue using what I consider to be a bad faith application of a soft sell letter.

Lots of links in the below thread, all of the debate in the Congressional Record, two statements from the DNI, one from July 27th and another from August 2nd, links to Senator McConnell and Bond press releases, and a link to the Senate minority leadership news conference where Senator Bond said "This is not my bill. This is not a Republican bill. This is an Admiral Mike McConnell bill based on what he sees the intelligence community needs ...."

August 08, 2007 at 15:55, at 16:18, at 16:49, at 17:33, and at 18:02.


And how about that guy who walked a monkey past the TSA and onto a US domestic flight? Too funny!

UPDATE @ 17:01

H/T to Bobby Chesney at National Security Advisors, on the subject of terrorists and the legal frameworks of the law of war and criminal law. Excellent discussion at Kenneth Anderson's Law of War and Just War Theory Blog.

Wesley Clark and UCLA international law professor Kal Raustiala have an op-ed in today's New York Times, August 8, 2007, on why terrorists should be treated as criminals, not combatants. ...

A combatant is someone who takes active or direct part in hostilities, and an unlawful or unprivileged combatant is one who takes active or direct part in hostilities but has no legal right to do so, in the case of Al Qaeda by reason of its systematic violation of the laws of war. The consequence is that Al Qaeda terrorists are both combatants and criminals.

Plenty to link to from there, as well. I found this, in the abstract to Kenneth Anderson's "What to Do with Bin Laden and Al Qaeda Terrorists?, to comport well with my personal point of view.

Transnational terrorists are, however, best understood as both criminals and enemies - entitled neither to the full constitutional protections of the domestic political community but also not entitled to the protections as POWs.

And in the same vein, (h/t HowAppealing), the Pentagon has classified 14 GTMO detainees as "enemy combatants."

UPDATE @ 20:18

A couple more items entered the brain cavity in the past couple hours ...

HowAppealing links to a Canadian report that alleges the CIA was involved in sending a Canadian (Arar) to Syria, where he was tortured. This relates to the general proposition of renditions.

On a much less inflammatory matter, the Department of Justice has used the recently-passed FISA modernization law as yet another reason to summarily dismiss a NSA surveillance case.


Great comments on FISA modernization at Volokh, and see the cross reference to 18 USC 2511(2)(f) [statutory exclusivity] linked from this comment. That's a good call, as the cross reference and statutory language aligns perfectly. Marty Lederman concurs in the analysis.

UPDATE @ August 10

FISA morning.

As a follow up to his Conference Call on the New FISA Legislation, Orin Kerr had a personal interaction with an anonymous administration representative, and reports the contents at White House Official Answers Questions About New FISA Legislation. How does the modernized FISA work, compared with what came before?

Marty Lederman at Balkinize weighs in on the administration's construction with his Anonymous FISA Spin commentary.

The statutory construction is a tough slog, but necessary (as always) to get to the bottom. I'm not there yet, but haven't dedicated any serious effort to study the FISA/Title III packages as a whole.


The last paragraph in Wall Street stunned by funds freeze contains a masterful understatement.

"There are still serious concerns about short-term funding ability," he said. "This concern, when combined with the broader implications of tightening credit and a softening housing market, can have a potentially painful impact on the economy."