Tuesday, February 26, 2008

February 2008 Mishmash

Falsehood of the day ...

Mrs. WILSON of New Mexico. ... Under the original Foreign Intelligence Surveillance Act, they made a distinction among technology. It said, if it bounces over the air, you don't need a warrant no matter where you are listening. That's because at that time almost all international calls bounced over the air over satellites. At the time in 1978, almost all local calls were over a wire. And so the law was written that said if you touch a wire in the United States, you have got to have a warrant. You are presumed to be impacting a U.S. person. So it was technology-specific for that moment in time.

I call bullshit. Read the statute.

50 USC 1801

(f) "Electronic surveillance" means--

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

And, the statute goes on, "electronic surveillance" requires a warrant, except under the limited qualifications expressed in 50 USC 1802.

Whether the law draws the statutory "need a warrant" line in the right place is certainly open to debate, but Ms. Wilson is flat out wrong that FISA as originally enacted aimed to permit the warrantless acquisition of any radio transmitted international call involving a US person, "no matter where you are listening." Unless reasonable expectation of privacy wasn't meant to extend to international communications.


On the McCain / FEC spat. I think he's being a weasel.

--- 10:05 ---

Senator Reid had three bills read for purposes of getting them on the calendar, including one (S.2665) that would extend the Protect America Act until July 2009.

The other FISA extension bill anticipates action in the current session of Congress.

S. 2664

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the ``Protect America Short-term Extension Act''.
Subsection (c) of section 6 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 557; 50 U.S.C. 1803 note), as amended by section 1 of the Act to Extend the Protect America Act of 2007 for 15 Days (Public Law 110-182), is amended by striking ``195 days after the date of the enactment of this Act'' and inserting ``on the date that is 30 days after the date of the enactment of the Protect America Short-term Extension Act''.
The amendment made by section 2 shall take effect as if enacted on February 15, 2008.

Senator McConnell notes that one of the cloture votes this afternoon has a foregone conclusion, referring to motion to proceed to an Iraq pull-out bill sponsored by Senator Feingold.

Senator Reid says that the purpose of bringing up the Iraq pull out bill is to introduce an argument that the money spent to prosecute the war in Iraq would be better spent domestically.


10:36: Vitter S.Amdt.3896, to limit funding of abortions via the Indian Health Care Improvement Act, was PASSED on a 52-42 vote
GOP Nay votes: Collins, Snowe and Specter
DEM Aye votes: Bayh, Byrd, Casey, Johnson, Landrieu, Nelson (NE), Pryor, Reid, and Salazar

10:59: Senator Reid announces a schedule for starting the Iraq/terrorism cloture votes:
- S.2633 (Iraq pull-out) at 2:40 p.m.
- S.2634 (Report on WOT) at 4:00 p.m.


Brit Hume | Special Report - Howard Dean Asks for Investigation of John McCain

Fred BARNES: ... Or the second thing is if he had said "I'm going to get this money to a bank; lend me something on the basis that I'm going to get this money." But he didn't say that either.

It is kind of funny, actually -- he told the bank, look, I'm not going to take the money, but if I do lousy in New Hampshire, then I may take the taxpayer money, and I will come back to you, and that will be my collateral. But the terms of that were never met, so it didn't happen. So I think he is going to wiggle out of this.

He told the bank "look, I'm not going to take the money"? McCain promised to take it, if necessary to repay the loan. The language in the McCain campaign loan and security agreements is fairly paraphrased as:

     We're not pledging any now-existing FEC certification of 
     matching funds, but we promise to contour spending so as 
     to maintain a right to those matching funds.  If the McCain
     campaign does not perform well, and he withdraws from the 
     matching funds program, we will reuse the (same) matching 
     fund rights (donation amounts and sufficient number of  
     states) and we WILL reapply for FEC matching funds 

"Lend me something on the basis that I'm going to get this money [if I have to, to repay this loan]". The McCain campaign made a pledge of "some" FEC certification, technically not the existing one, but a future certification that WOULD be sought if the campaign under-performed.

The contingency plan suggested by the loan agreement, to withdraw and reapply, is used to support the express recitation of "not pledging EXISTING FEC certification," while at the same time promising to preserve the right to apply for FEC certification, and pledging to apply for a fresh certification (which has the same value, same application forms, etc) if voluntary campaign donations don't cover the loan.

What the loan agreement is suggesting is a fiction. In practice, a campaign that is NOT performing well simply stays in the matching fund program. Under the scenario where the campaign had not done well, the fiction is that McCain would have withdrawn from the matching funds program (to destroy the EXISTING certification), then would reapply for matching funds using the same campaign donations that had supported the previous application. The loan agreement promised to use the NEW certification as collateral.

Of course, he wouldn't have "withdrawn and reapplied" in the event of poor campaign performance. The campaign would have stayed in the matching fund program, with public funds being available to repay the loan. Any issue associated with a "request to withdraw" simply wouldn't exist, and the questionable collateralization wouldn't come into public view.

If the FEC allows this, it becomes the standard form for ALL future campaigns that sign up for public money to obtain "not collateralized" loans to cover dry spells.

--- FISA at 13:50 ---

H/T Andy McCarthy at NRO, House GOP Will Force Vote TODAY on Bipartisan Senate-Passed FISA Modernization Bill.

Link to Minority Leader Boehner's Press Release

I don't know House procedure enough to be able to paraphrase or rephrase the procedural motion that the minority is going to make. Obviously, it's a motion that may be offered at any time, as a matter of right.

UPDATE @ 15:30 Whatever it was that Minority Leader Boehner had planned, the C-SPAN crawl reports that it didn't result in the House taking up the Senate-passed FISA bill, and the only vote I see is one that passed Tabling a Motion to Appeal a Ruling of the Chair.

Whatever the GOP tried, was ruled out of procedure by the chair, the GOP moved to appeal that ruling, and the DEMs moved to table the motion to appeal.

--- IRAQ at 15:15 ---

14:53 - 15:15: The motion to invoke cloture (limit debate) on the motion to proceed to S.2633, Iraq pull-out, was PASSED on a 70-24 vote

This is an unusual development. The GOP has uniformly rejected cloture when given an opportunity, when the subject was taking up of an Iraq pull-out bill.

Feb 26: S.2633 120 day transition & defund - Cloture invoked 70-24
Dec 18: #3875 90 day transition & defund - Rejected 24-71
Oct 02: #3164 June 30, 2008 transition & defund - Rejected 28-68
Sep 21: #2898 9 month transition - Rejected 47-47
Sep 20: #2924 June 30, 2008 transition & defund - Rejected 28-70
Jul 18: #2087 April 30, 2008 transition - Rejected 52-47
May 16: #1098 March 31, 2008 transition & defund - Rejected 29-67
Mar 15: S.J.Res.9 March 31, 2008 transition - Rejected 48-50

Senator Reid asks for unanimous consent to have 2 hours of debate, followed by a vote on the bill. Senator McConnell objects to the time limit, noting he has a number of speakers lined up to speak. Senators Reid and Durbin complain that the debate will take too long. Hey, it's only about a one day delay. It's not as though the additional 28 hours represents a significant delay for any urgent legislation.

WH Policy statement on S.2633 (will veto)
WH Policy statement on S.2634 (veto recommended)

February 27

18:30: The motion to invoke cloture (limit debate) on the motion to proceed to S.2634, to require a report setting forth the global strategy of the United States to combat and defeat al Qaeda and its affiliates, was PASSED on a 89-3 vote
Nay votes: Barrasso, Enzi and Hagel

That's a veto-proof majority, but only to limit debate on a motion to take the bill up. We don't know yet if the bill will be voted on, only that it has a chance of being made "pending."

February 28

Hmmm. The Iraq pull-out bill, S.2633, is not "pending," is not "unfinished business," and is not the subject of any unanimous consent agreement recited on today's legislative calendar. Could it be that there was never a vote on the motion to proceed to the consideration of the bill (making it "disappear" without notice)? Or that the motion was voted on and defeated on a voice vote? Those wacky Senators.

Being away and all, I'm under the usual one-day (or more) delay for viewing the details of proceedings, as the Congressional Record is prepared and published.

17:50: Yesterday, senator Reid asked unanimous consent to withdraw the motion to proceed to S.2633. Wow. Talk about an argument dying with a whimper. At the conclusion of 30 hours of debate on a motion to proceed to the Iraq pull-out bill, there wasn't even a vote on the motion. The proponent party just said "nevermind."


Anonymous Anonymous said...

I think you omitted the distinction of "intentionally targeting" the acquisition of domestic radio communications versus any acquisition of domestic wireline communications. If the U.S. has a satellite which acquires all the foreign radio communications in Cuba, which accidentially also acquires U.S. domestic radio communications in South Florida, FISA requires minimization of the U.S. radio communications but doesn't prohibit the "unintentional" acquisition of domestic radio communications without a warrant. A warrant is required if the same satellite "intentionally targeted" radio communications of a U.S. person in south Florida.

2/27/2008 8:36 AM  
Blogger cboldt said...

I quoted the complete definition of electronic surveillance. It includes the distinction you say was omitted.
I did omit the citation that says "electronic surveillance needs a warrant" (unless it falls under the strictures of 50 USC 1802), and I also omitted discussion of the tension and conflict between statutory and Article II powers. Just the same, my point was that Ms. Wilson grossly overstated a position (no radio communication needs a warrant), to the extent that I see it as misrepresentation of past legislative intent.
If the government wants to say that US persons have no reasonable expectation of privacy in international communications, then it should just out and say it. "We'll listen to your calls overseas if we want to (no warrant is required under the law), and if they're benign, you have nothing to be concerned about."

2/27/2008 8:57 PM  
Anonymous Anonymous said...

Ms. Wilson did overstate her position, but likewise I believe you overstated your response. International telephone calls "involving" U.S. persons aren't always included in the definition of "electronic surveillance." In particular, FISA does distinguish between acquiring communications by radio versus acquiring communications by wire in the U.S.

Using an example of a call from Fidel Castro in Cuba to a person in the U.S. entering the U.S. via satellite is not included in the definition of electronic surveillance, unless a U.S. person was intentionally targeted, and therefor the radio communication of that call may be acquired anywhere (in Cuba, in the U.S. or elsewhere).

But the same call from Castro in Cuba to a person in the U.S. entering the U.S. on cable is always included in the definition of electronic surveillance if acquired from a cable in the U.S.

Yes, I agree. It would be better if lawmakers wrote clear statutes.

2/28/2008 12:49 PM  

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