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9th Circuit Allows Wiretap Suit Against NSA to Proceed

While the 9th Circuit upheld the consitittuionality of telecom immunity for warrantless wiretapping in one case today, in another case, it ruled a complaint against the NSA and Government officials for conducting "a communications dragnet of ordinary citizens" can proceed. The case is Jewell vs. NSA, and the opinion is here.

The complaint by plaintiff Carolyn Jewell and others (the case is a potential class action) alleges that the NSA attached surveillance devices to AT&T's network, diverting communications into "SG3 Secure Rooms" at AT&T facilities around the country, creating "an unprecedented suspicionless general search" throughout the AT&T network. The suit alleged the NSA and other government defendants performed or aided and abetted the scheme. (AT&T was not sued in the case.)

The district court had dismissed the case holding the plaintiffs didn't have standing to challenge the scheme, but the 9th Circuit disagreed and reversed. [More...]

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Senate Committee to Investigate Illegal NSA Wiretapping

The New York Times has a big scoop on the warrantless NSA wiretapping program: The NSA admits it was out of control for a while and numerous Americans were tapped and had their records seized.

Senate Intelligence Committee Chair Diane Feinstein says the Committee will investigate.

I'm more concerned that Attorney General Eric Holder has reapproved and sought renewal of the program, saying the problems have been fixed.

As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.

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FISA Court Issues Public Opinion on NSA Wiretapping

The ACLU announces:

The Foreign Intelligence Surveillance Court (FISC) announced today that it will not make public orders and legal papers pertaining to the scope of the government's authority to engage in the secret wiretapping of Americans.

This is only the third time the FISC has issued an opinion publicly and the first time it has ruled on a substantive motion made by any party other than the government.

Here's today's FISA Court opinion and an AP article discussing it.

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Sen. Specter Introduces FISA Bill on Substitution

Sen. Arlen Specter yesterday introduced a new bill on FISA substitution-- S. 2402, the Foreign Intelligence Surveillance Substition Act (pdf).

He also made this statement (pdf) about the bill yesterday which appears in the Congressional record.

Mr. President, I seek recognition to introduce The Foreign Intelligence Surveillance Substitution Act of 2007, to substitute the Federal Government for the telephone companies in litigation challenging the so-called Terrorist Surveillance Program. ....

.... The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S.

....If the provider assisted the Government beyond what was requested in writing, this legislation will leave the provider on the hook for any surplus assistance. On the other hand, the Government will be substituted if the Attorney General certifies that the electronic communications service provider did only what the Government asked. Once substitution occurs, Federal and State courts are directed to dismiss the providers from the action.

The bill may be taken up by the Senate Judiciary Committee tomorrow. Unfortunately, it does not have a state secrets fix.

For lots more on the FISA bills currently under consideration this week, the ACLU provides great information.

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Brandon Mayfield On FISA Amendment

Rachel Perrone of the ACLU sends this Novemebr 1, 2007 letter from Brandon Mayfield to Sen Russ Feingold on FISA. The highlights:

I have read the “FISA Amendments Act of 2007” which is touted as being a balance by those who support it, but it is anything but balanced. The balance between liberty and security has already been hammered out by an earlier, apparently more enlightened generation of Americans and can be seen in the language of the 4th Amendment to the Constitution. That perfect balance between criminal investigation and respect for a person’s privacy is known as probable cause. No search or arrest should be made without a warrant, and no warrant should issue without probable cause that a crime has been committed. Further the warrant must particularly describe the place to be searched and the person to be seized. . . .

Full text in extended.

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SJC FISA Hearing - Semi-Live Blog

On the SJC page. Via the Daily Kos Live Blog, the schedule:

More...

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Senator Dodd: Lead The Resistance To The Dem Senate Cave-In On FISA

Yesterday Senator Chris Dodd said:

While the President may think that it's right to offer immunity to those who break the law and violate the right to privacy of thousands of law-abiding Americans, I want to assure him it is not a value we have in common and I hope the same can be said of my fellow Democrats in the Senate.

"For too long we have failed to respect the rule of law and failed to protect our fundamental civil liberties. I will do what I can to see to it that no telecommunications giant that was complicit in this Administration's assault on the Constitution is given a get-out-of-jail-free card."

Senator Dodd, what you must do is lead the fight against the capitulation by your fellow Dem Senators on this issue:

Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.

. . . It was a victory for President Bush, whose aides lobbied heavily against the Democrats' [House] bill, and an embarrassment for House Speaker Nancy Pelosi (D-Calif.), who had pushed for the measure's passage. The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

More...

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Dems Drop No Telecom Immunity Demand From FISA Bill


Total capitulation.

Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.

Here's more:

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

Why am I not surprised? Because I never expected anything else since August when the Dems signed onto Bush's bill so they could go home and vacation during the August recess.

The saddest part is that FISA didn't need to be gutted or amended. It needed to be followed.

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Verizon Turned Over Customer Records Without Court Order

The phone companies have responded to the request by the House Committee on Energy and Commerce for information about their participation in the NSA warrantless wiretapping program.

Verizon admits it supplied hundreds of its customers' records to the agency without a court order.

Verizon also disclosed that the FBI, using administrative subpoenas, sought information identifying not just a person making a call, but all the people that customer called, as well as the people those people called. Verizon does not keep data on this "two-generation community of interest" for customers, but the request highlights the broad reach of the government's quest for data.

More....

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Dems' FISA Bill Passes Judiciary Committee Vote

The House Judiciary Committee today passed the RESTORE Act, the Democrats' answer to August's FISA rewrite. There were three amendments that passed as well.

  • Jackson-Lee (TX): An amendment to clarify the bill's language and prevent "reverse targeting" by requiring the Administration to obtain a regular FISA warrant whenever a “significant purpose of an acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States” rather than waiting until said person formally becomes a target.
  • Nadler (NY): An amendment to improve court oversight over the government’s compliance with the FISA Court’s orders by requiring the court to assess compliance with its orders as opposed to merely authorizing it to do so and by removing limitations on its review.

More....

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House Judiciary Comm. to Hold FISA Hearing Sept. 5

House Judiciary Committee Chair John Conyers announced today the committee will hold a hearing on FISA on September 5, 2007.

"Warrantless Surveillance and the Foreign Intelligence Surveillance Act (FISA): The Role of Checks and Balances in Protecting Americans’ Privacy Rights." The hearing will be held on Wednesday, September 5, at 10:15 a.m. in room 2141 of the Rayburn House Office Building.

House Speaker Nancy Pelosi had asked for the hearing in an August 4 letter.

Tonight, the House passed S. 1927, a bill approved by the Senate yesterday, which is an interim response to the Administration's request for changes in FISA, and which was sought to fill an intelligence gap which is asserted to exist. Many provisions of this legislation are unacceptable, and, although the bill has a six month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken.

Accordingly, I request that your committees send to the House, as soon as possible after Congress reconvenes, legislation which responds comprehensively to the Administration's proposal while addressing the many deficiencies in S. 1927.

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New Details on How the FISA Bill Got Passed

Joby Warrick and Walter Pincus in the Washington Post have some behind the scenes details of how the FISA Amendment passed.

It doesn't change anything. The Dems caved and Speaker Pelosi promising to revisit the bill doesn't make their rollover any more palatable.

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ACLU Files Motion With FISA Court Demanding Release of Court Opinions


The ACLU today filed a motion today with the FISA Court (text here, pdf) demanding that the secret court release its opinions that led to the new FISA legislation.

In the first effort of its kind, the American Civil Liberties Union will today file legal papers with the Foreign Intelligence Surveillance Court (FISC) requesting that it disclose recent legal opinions discussing the scope of the government's authority to engage in secret wiretapping of Americans

"Publication of these secret court orders is vitally important to the ongoing debate about government surveillance," said Jameel Jaffer, Director of the ACLU's National Security Project. "Virtually everything we know about these orders we've had to learn from executive branch officials, but executive branch officials are plainly not disinterested parties in a debate about the appropriate reach of executive branch surveillance. The public has a right to first-hand information about what the court permitted and what it disallowed."

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FISA Amendment Allows Collection of All Our International Calls

Great read today, in the Nation: Data Mining Our Liberties. Aziz Huq examines the recently passed "Protect America Act of 2007." The Brennan Center says:

Azi believes the law "is a dramatic, across-the-board expansion of government authority to collect information without judicial oversight," and "an open-ended invitation to collect Americans' international calls and e-mails."

Huq breaks down how and why this law came into being and notes that, in truth, the law actually does not expire in 6 months. Ultimately it gives the Administration "power without responsibility" and "allows the government to spy when there is no security justification."

Just a few of the points:

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Dems Cancel Intelligence Hearing , Push for FISA Changes Before Recess

Update: Myths and Facts About FISA.

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Republicans have been pushing to amend FISA before the August recess. A hearing of the House Permanent Select Committee on Intelligence at which Director of National Intelligence Mike McConnell was scheduled to testify today has been canceled.

Yesterday, for the first time, McConnell briefed Sen. Arlen Specter on the NSA program. While Specter hasn't discussed what he learned at the briefing, after it he labeled attempts to impeach or bring perjury charges against Alberto Gonzales "premature."

We need to slow down this train. FISA doesn't need to be gutted or amended. It needs to be followed.

"FISA was enacted to ensure that no president could unilaterally decide who to secretly and indefinitely wiretap under the guise of national security. These bills would allow terrorism to be used as a pretext for undermining our basic Fourth Amendment rights. Congress should not pass the bills which give the president a blank check to violate the rights of innocent Americans."

Congress should just say no to gutting FISA.

Update below: FISA action may not be off the table after all:

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