NSA Surveillance Hearing Update

Transcripts from today's hearing are here (html). Arianna tells the Democrats to stand strong because this is a winning issue. That's good advice.

There were many questions Gonzales would not answer at today's hearing citing national security:

Democrats repeatedly pressed Mr. Gonzales, without success, to state whether the administration's legal stance would permit the government to open Americans' mail without warrant or, in the words of Sen. Patrick Leahy, D-Vt., to conduct "black bag jobs."

He offered few details of the secret program, whose existence was revealed in December by The New York Times. Though he described the program as "narrowly" targeted, Mr. Gonzales said he could not provide an "absolute assurance" that Americans without ties to terrorists are not being spied upon.

That's the crux of the problem. Bush and Gonzales want us to believe the surveillance program is directed at al Qaeda and other terrorists. But the reality is it is directed at the communications of suspected al Qaeda members overseas with people within this country. (For polling differences that depend upon whether the question is phrased as one or the other, see this article in tomorrow's Wall St. Journal (free link.)

FISA prohibits this without a court order, either obtained prior to or in emergency cases shortly thereafter, for good reason. It's called the minimization requirement.

The FISA Court was clearly concerned about this in 2003 when it issued its first published decision ever. As EPIC reported:

Although FISA surveillances must have an intelligence purpose, courts allow FISA-obtained information to be used in criminal trials. However, FISA's "minimization" requirement mandates that procedures be implemented to minimize the collection, retention, and dissemination of information about United States persons. Minimization procedures are designed to prevent the broad power of "foreign intelligence gathering" from being used for routine criminal investigations. In a number of instances, however, there are overlaps between foreign intelligence gathering and criminal investigations. One common minimization procedure is what is known as an "information-screening wall." These "walls" require an official not involved in the criminal investigation to review the raw materials gathered by FISA surveillance and only pass on information that might be relevant evidence. The purpose is to ensure that criminal investigators do not use FISA authority for criminal investigations.

In March of 2002, the Attorney General proposed a new regime of minimization procedures. The Foreign Intelligence Surveillance Court rejected these procedures in May, in the first published opinion of that court.

The opinion was later reversed by the secret, one-sided FISA review court. That decision is here (pdf). But in reversing the opinion the Court reaffirmed the requirement of minimization contained in the statute.

....for U.S. persons, FISA requires minimization of what is acquired, retained, and disseminated. The FISA court notes, however, that in practice FISA surveillance devices are normally left on continuously, and the minimization occurs in the process of indexing and logging the pertinent communications. The reasonableness of this approach depends on the facts and circumstances of each case.

By not applying for a court order, the Government can circumvent the minizmization requirements of the statute and engage in whosale monitoring, retention and dissemination of information of Americans, under the guise of searching for information on Al Qaeda members overseas.

Another problem is that our Attorney General, despite promises made at his confirmation hearing, still believes that he is Bush's lawyer, not our lawyer.

Just 13 months ago, at his confirmation hearing, Gonzales vowed that he would "no longer represent only the White House," instead representing "the United States of America and its people." Yesterday, however, he relapsed, referring to Bush at one point as "the client."

The ACLU has more on Gonzales' misplaced loyalty:

"Attorney General Gonzales is supposed to represent the interests of the American people, and not the president. Sadly, the 'people's lawyer' today hid behind the veil of national security and failed to answer simple and legitimate questions from Senators on both sides of the aisle. These were basic questions that would not have compromised ongoing national security operations. This lack of transparency undermines the ability of Congress to conduct much-needed oversight on this controversial program.

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    Re: NSA Surveillance Hearing Update (none / 0) (#1)
    by The Heretik on Mon Feb 06, 2006 at 09:02:33 PM EST
    What Gonzales would talk about and what he wouldn't talk about, all in his curious language, are revealing, one way or another.

    Re: NSA Surveillance Hearing Update (none / 0) (#2)
    by joejoejoe on Mon Feb 06, 2006 at 09:25:05 PM EST
    Sen. Grassley and Alberto Gonzales had FISA denials. Excuse the lenghty excerpt but I think they hit some important points:
    GRASSLEY: It appear to me that FISA generally requires that, if surveillance is initiated under the Emergency Authorization provisions and an order is not obtained from the FISA Court, that the judge must, quote, "cause to be served on any U.S. person named in the application and on such other U.S. persons subject to electronic surveillance as the judge and the court," quote, "believes warranted the fact of the application; two, the period of the surveillance; and, three, the fact that during the period information was or was not obtained." § 1806 (j) (snip) Does this explain the caution and the care and the time that is used when deciding whether to authorize 72-hour emergency surveillance? (snip) GONZALES: Senator, those are all very good questions. (snip) It is true that if I give an emergency authorization and an order is not obtained [under § 1805 (f)], my understanding of the statute is that the presumption is that the judge will then notify the target of that surveillance during that 72-hour period. We would have the opportunity and make arguments as to why the judge should not do that. But in making those arguments, we may have to disclose information certainly to the target. And if we fail, the judge may very well notify the target that they were under surveillance. And that would be damaging. That could possibly tip off a member of Al Qaida or someone working with Al Qaida that -- and we have reasons to be concerns about their activities.
    § 1806 (j) states:
    On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
    What is the standard of 'good cause' to get the FISA judge to forego notification? Is Gonzales far overselling the danger of notification of Al-Qaeda in the event of a denied warrant? How high a bar is this to meet? I would imagine ANY factual showing of a relationship to Al-Qaeda is enough to approve the warrant in the first place.

    Re: NSA Surveillance Hearing Update (none / 0) (#3)
    by Wes on Tue Feb 07, 2006 at 01:47:08 AM EST
    The Real Danger of Presidential Spying : Brian J. Foley of Florida Coastal School of Law says that the greatest threat posed by President Bush's domestic surveillance program is not to the privacy of ordinary Americans but rather to the independence of potential political rivals, journalists, and activists who would balance, constrain or oppose executive power...

    Re: NSA Surveillance Hearing Update (none / 0) (#5)
    by KD on Tue Feb 07, 2006 at 08:56:24 AM EST
    The problem with "spying on Al Qaeda" is: "If you're not with us, you're against us!" and "Saddam Hussein is working with Al Qaeda!" and "Radical environmentalists are the biggest domestic threat to the U.S. other than Al Qaeda!"

    Re: NSA Surveillance Hearing Update (none / 0) (#6)
    by Che's Lounge on Tue Feb 07, 2006 at 09:11:41 AM EST
    In april of 2004 Bush stated unequivocally in an open speech that the Govt. needed a warrant. Now he says they don't. He was either lying then or lying now. Either way he's a f***ing liar.

    Re: NSA Surveillance Hearing Update (none / 0) (#7)
    by Talkleft Visitor on Tue Feb 07, 2006 at 12:04:34 PM EST
    In addition to Gonzales, the Representatives and Senators who were briefed on this program should also be sitting in the hotseat (although some of them might have to step down as inquisitioners for a minute to do so). A few questions I'd like to ask them are: What were you told? When were you told it? Why did you say nothing about this program at the time? What has changed to make you now question the legality of this program? What political motivations are involved in your turnabout? After all, it would be nice to get both sides of the story; if only for the sake of clarity.