Editore"s Note
Tilting at Windmills

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August 5, 2007
By: Kevin Drum

FIGURING OUT FISA....I wish I could figure out what just happened over the weekend with those competing amendments to the FISA law, but it's tough to get a handle on because — duh — a lot of the details are classified. There's an awful lot of guesswork involved in trying to figure out what's going on. But here goes anyway.

The background seems to be fairly simple. What we know — or think we know, anyway — is that a FISA judge had approved a certain type of surveillance and then, a short time ago, a new FISA judge rotated in to the court, took a fresh look, and ruled against it. Everybody's best guess is that the ruling has something to do with monitoring communications in which one end is outside the United States and the other end is unknown.

Thirty years ago this problem didn't exist. The old telephone network was circuit switched, which meant that if a terrorist in Kabul called a cell in Hamburg, the call would most likely be routed on a copper wire that ran roughly from Aghanistan to Germany. It was legal to monitor this call without a warrant, but the only place to do it was outside the country. We couldn't have monitored it from inside the U.S. if we wanted to.

In a modern packet switched network things are different. When you send an email, it gets broken up into packets and tossed onto the internet, where each packet is routed to its destination. When all the packets arrive, they're put back together and you can then read the message. The same is true for an increasing number of telephone calls.

But the packets don't follow any specific path. They might go all around the world before ending up at their final destination. In particular, since the United States hosts a great deal of the world's routing capacity, an email from Kabul to Hamburg might get routed through a U.S. switch. This gives U.S. intelligence services a capability they didn't have in the past: they can eavesdrop on foreign communications by monitoring switches that are physically located within the United States.

Which is great except for one thing: it's hard to say for sure exactly what the source or destination of a packet-switched communication is. Is Kabul communicating with Hamburg (OK to surveil without a warrant) or with New York (not OK)? An IP address is suggestive, but not conclusive. Orin Kerr provides the following hypothetical:

Imagine that the government has reason to believe that an Al-Qaeda cell uses a particular Internet service provider in Kabul and a particular type of software to communicate about a terrorist plot targeting the United States. In this case, the government has probable cause to believe that monitoring the ISP would uncover terrorist intelligence information. But how broad can the monitoring be? Can the government look at all of the traffic coming to or from that ISP in Kabul? Or can it only look at traffic to or from that ISP that uses that particular software? Or only some specific portion of the traffic from that ISP using that software?

More fundamentally, is NSA allowed to monitor traffic passing through U.S. switches at all without a warrant? Even though it doesn't know for sure that all of it is taking place outside the U.S.? Can it monitor part of the traffic? None of the traffic? What algorithm is acceptable for providing a high likelihood that the monitored traffic is all outside the U.S.?

Now, this is a genuinely difficult question. Everyone agrees that it's OK to monitor foreign traffic without a warrant, and everyone agrees that it's not OK to monitor domestic traffic without a warrant. But what if, for technical reasons, it's no longer possible to say with absolutely certainty where the traffic is going to? What if it's not possible to monitor a specific person, but only a defined category of traffic?

This is the problem that the competing FISA amendments were apparently trying to resolve, and both the Democratic bill (which failed) and the White House bill (which passed) addressed it by allowing surveillance of persons who are "reasonably believed" to be outside the U.S. The FISA court would determine if NSA's procedures are reasonable. Over at Obsidian Wings, Publius spells out the difference:

The Democratic bill...and this is critical...explicitly excluded (1) communications with a U.S. person inside the United States and (2) communications in which all participants are in the United States. Thus, the bill provided protections against domestic surveillance. For these types of calls, the government needed an old-fashioned warrant. (The Democratic bill's carve-out provisions are in Sec. 105B(c)(1)(A).)

The White House bill (pdf) — soon to be law — took a much different approach. It just flatly withdrew all of this surveillance from the FISA regime. More specifically, the bill (Sec. 105A) states that any "surveillance directed at a person reasonably believed" to be outside the United States is completely exempt from FISA (i.e., it's not considered "electronic surveillance"). [Marty] Lederman spells all this out very well and in more detail, but the upshot is virtually anything — including calls inside the United States or involving U.S. citizens — is fair game.

The White House bill not only fails to prohibit domestic surveillance, but opens a huge hole for just that purpose. It exempts from FISA scrutiny any communication that is "directed at" persons reasonably believed to be outside the U.S., and then leaves this phrase undefined and therefore wide open:

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

If this is right, it means that Democrats caved in on a simple provision meant to prohibit domestic surveillance without a warrant. Under the White House bill, the only oversight against abuse of the "directed at" clause is the Attorney General's say-so, and the FISA court is required to accept the AG's reasoning unless it's "clearly erroneous." This is about as toothless as oversight comes.

Democrats pretty clearly got steamrolled on this. Until Thursday they were negotiating productively with Director of National Intelligence Mike McConnell and had reached agreement on the bill's language. Nobody was making a big deal out of it because things seemed to be going smoothly. Then, at the last second, the White House rejected the language its own DNI had accepted and suddenly all hell broke loose. Democrats weren't ready for it, and with Congress about to adjourn and no backup strategy in place, they broke ranks and caved in. The only concession they got was a six-month sunset in the bill.

Was this the White House's strategy all along? To lull Dems into a stupor and then hit them over the head at the last minute with brand new demands? Hard to say, but it sure looks deliberate. Democrats are going to have to learn to play in the big leagues if they want to keep up.

Kevin Drum 9:05 PM Permalink | Trackbacks | Comments (67)

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The Democrats just cravenly gave up. They trust McConnell only because he's a good political operator, and they think independent. But basically they got rolled.

Unfortunately one of the rolled was my Sen. Mikulski, really not happy about her role here.

Posted by: c. on August 5, 2007 at 9:23 PM | PERMALINK

I read the bill the same - it opens the door for domestic surveillance without any oversight. How this happened has been SOP with this administration since it got into the White House. It started with Chertoff and his "gut" feeling that over the break there will be a terrorist attack, with Trent Lott as the echo last week. Right before "honest agent" Mike McConnell pulled the old switcheroo, a bridge collapsed in Minnesota - Homeland Security rushed out to assure everyone that it wasn't due to terrorism (how would they know?).

Of course the Bush administration plotted this, and the fact that Democrats weren't prepared and caved (yet again!) tells us that they aren't the people for the job.

This bill should have been stopped in the Senate. Of all the Democrats who voted for it, only 3 are up for reelection in 2008. The others didn't vote out of fear that if there was a terrorist attack in the coming month, they'd be blamed at the ballot box next year. They won't have to face reelection until at least 2011, and most of them in 2013.

This is the lamest of lame duck Presidents. He and his Vice-President aren't trusted or believed by anyone. His Attorney General ought to be indicted on perjury charges, was about to be charged with perjury, and then Specter collapsed and bought the most flimsy argument as to why Gonzales didn't lie. All this and Bush got a bill passed that legally allows him to spy on everyone, including Democratic politicians.

Why?

Posted by: Maeven on August 5, 2007 at 9:25 PM | PERMALINK

Funny how easily we talk about making it legal under American law to do things in other countries that are illegal under the laws of those other countries. Spying, that is.

Posted by: Ross Best on August 5, 2007 at 9:26 PM | PERMALINK

This morning's entry from Jack Balkin, at balkinization.com, in the comments section where he discusses the implications with his colleague and Marty Lederman:

"Section 105A is just breathtaking in the scope of what it allows the government to do, all by redefining lots of electronic surveillance not to be "electronic surveillance" under the meaning of FISA.

Section 105B adds an additional exemption. It allows one year surveillance programs at the discretion of the Attorney General (i.e. Alberto Gonzales, that most reliable and truthful of public servants). These programs would involve collection of information "concerning" persons reasonably believed to be outside the U.S. (as opposed to surveillance "directed at," which is taken outside of FISA altogether). This surveillance could actually be directed at U.S. persons inside the U.S., as long as it "concern[ed]" persons believed to be outside the U.S., again with no requirement of showing of terrorism, or criminality. The government need not specify the "specific facilities, places, premises or property" at which the surveillance will be directed. Courts reviewing the program under section 3 to determine whether some of the surveillance actually is "electronic surveillance" as redefined in section 105A is restricted to asking whether the Attorney General's claims are "clearly erroneous."

Section 105B thus threatens the rights of U.S. persons who might have surveillance directed at them (because the surveillance is concerning a person reasonably believed to be overseas), and other U.S. persons whose conversations are caught up in a program subject only to a clearly erroneous standard."

Posted by: consider wisely always on August 5, 2007 at 9:26 PM | PERMALINK

I wonder what Winston Smith would think of the 'Tubes', Facebook, Blogs and Chat Rooms and people volunteering reams of personal data.

Posted by: Minn Wyth Hill on August 5, 2007 at 9:30 PM | PERMALINK

"Democrats .. they broke ranks and caved in"

A little anthrax goes a long way.

Posted by: h on August 5, 2007 at 9:31 PM | PERMALINK

About Mike McConnell's role:

This week was his Colin Powell moment. When Bush renegged on the deal he made with Congress, McConnell should have resigned.

McConnell's actions this week expose him to be no patriot. He sold his soul for his ego and ambition. The man is no honest agent.

It's amazing how Bush finds them.

Posted by: Maeven on August 5, 2007 at 9:31 PM | PERMALINK

People said much the same thing about CALEA back in 1994.

Posted by: Minn Wyth Hill on August 5, 2007 at 9:34 PM | PERMALINK

Let's see: you've got a "reasonable belief" standard, and no review by the courts. Could take a long, long time for that standard to be defined.

Posted by: dj moonbat on August 5, 2007 at 9:35 PM | PERMALINK

This is one reason negotiations classes teach the importance of not having deadlines, especially things like "plane tickets."

The story is told of many agreements that are made on the last day of a several day meeting, because of the need for one party to get to the airport. The agreements all tend to favor the party staying home.

Posted by: jerry on August 5, 2007 at 9:35 PM | PERMALINK

If it was deliberate, ok, the Dems got rolled on this one. But the lesson of the Bush admin is that this kind of tactical monkey business may win victories, but they're ultimately hollow victories. They don't have staying power and the blow-back is very costly. If this analysis is true, for example, DNI McConnell just lost a whole lot of credibility. That won't serve him, or the admin, or for that matter the country, very well going forward.

I would have been happier with a shorter timeline than 6 months, but the point is this will sunset and the Congress is going to look very closely at what happened here in figuring out how to go forward.

Chalk up another pyrrhic victory for Bush / Cheney. Mission accomplished.

Posted by: larry birnbaum on August 5, 2007 at 9:42 PM | PERMALINK

My last comment on this. I take issue with Kevin Drum's comment, "Everyone agrees that it's OK to monitor foreign traffic without a warrant, ..."

No, everyone doesn't agree that it's okay to monitor foreign traffic without a warrant. Nor, as I've heard Kevin Drum say in the past, that "Everyone agrees that the FISA court is necessary."

With the advent of the FISA court, it was only a matter of time before a George W. Bush and a Dick Cheney came along to push the issue down the slope even further. There is no room in a U.S. with a Constitution and Bill of Rights for a secret court system.

Posted by: Maeven on August 5, 2007 at 9:45 PM | PERMALINK

While it is too much to believe that the whole thing was a white house setup it has been pretty obvious for the entire 110th that the democrats do not know hoe to do politics. It really makes me wonder where these guys came from. They have an historic majority of public opinion behind it and still the democratic leadership caves not just a little but abjectly.

As the saying goes - doesn't anyone know how to play this game?

Then again maybe the white house has figured out that the democratic majority is as incompetent at politics as the white house is at everything else.

Posted by: paulo on August 5, 2007 at 9:46 PM | PERMALINK

The more interesting question here is not if this was the White House's plan all along, but if this was McConnell's plan all along.

If this was McConnell's plan all along, then I feel like I'm missing something here: the way this looks, the White House has to come back to Congress in six months to re-authorize this, except that they've just removed McConnell from the list of people that Congress can negotiate with. This all goes to Gonzales' pervue for the next six months, which means that its up to Justice to come back in six months to show that this provision is necessary and has not been open to abuse. Does anyone believe anything he has to say at this point? What about in six months?

By undermining McConnell, or by McConnell allowing himself to go along with the White House's plan, all this means is that Congress has no reason to renew this provision in six months. If the reason this was passed was because the Democrats' didn't have a backup plan and got caught as they went to the August recess, then presumably they won't make the same mistake in six months. So its all a matter of keeping up the pressure to make sure that this issue doesn't fall under the radar before then.

Posted by: msmackle on August 5, 2007 at 9:46 PM | PERMALINK

Jonathan Turley & Keith Olbermann:

http://www.youtube.com/watch?v=IQ3P1mzEe2A

Posted by: Maeven on August 5, 2007 at 9:49 PM | PERMALINK

O H P U L E E Z E F O R G O D S S A K E

Clinton [D] [1994] did it too [CALEA]
http://en.wikipedia.org/wiki/Communications_Assistance_for_Law_Enforcement_Act

I dont see this, personally, as a victory for Bush either.

Heres a guide [PDF] to intercept legislation:
http://www.ss8.com/pdfs/Ready_Guide_Download_Version.pdf


Posted by: Minn Wyth Hill on August 5, 2007 at 9:53 PM | PERMALINK

If you watched Cspan last night, you would have seen some passionate Democrats speaking out against this bill--Wasserman Schultz, Shelia Jackson Lee, for example. Just not enough of them.
It is the Senate that is most woeful, but a majority of 60 is always going to be hard to come by.

I was dismayed how minimally blogs covered this all day. This blog is rather late getting on board as well. This morning I found just a couple of law blogs addressing it--balkinization, althouse.

The normally progressive home newspaper barely gave it a mention.

The court ruled against the administration months ago. The dictator waited like a snake in the grass til the August recess. Similarly, the Patriot Act was rammed through. And again, the fear of being branded as soft on terror paralyzed the Democrats.

In part, I blame Reid and Palosi for a lack of leadership.


Posted by: consider wisely always on August 5, 2007 at 9:54 PM | PERMALINK

I've always liked this blog, but.... Lately I'm hitting the "Who Is IOZ" site, and it's light-years more lucid and candid than Mr. Drum.

Democrats are going to have to learn to play in the big leagues if they want to keep up.

This is so vacuous it's painful. Look, here's what ya got:

No impeachment.

No check on war spending.

No check on the war.

No check on the growth of the federal garrison, ahem, "security" apparatus.

Gonzales gets in front of these guys and plays them for chumps -- *multiple* times! -- and we all know he'll suffer not a moment's inconvenience for that.

And in about a month we're gonna see Dems ostentatiously vie to out-fellate General Petreaus, who has somehow evolved into a medley of Douglas MacArthur and U Thant.

Look, the Dems -- who unaccountably, according to Mr. Drum, still need to "learn" -- are complicit in ALL of this. This system is broken. We now live under the kind of political system that we used to think existed only in places like Guatemala. No Democrat will reverse that. They're INVESTED in it! They've already learned everything they need to know.

Posted by: sglover on August 5, 2007 at 9:56 PM | PERMALINK

Democrats weren't ready for it

Carve that on a tombstone. Pretty much covers the last 20 years.

To lull Dems into a stupor

The same one they've been in since 9/11?

Democrats are going to have to learn to play in the big leagues if they want to keep up.

Any evidence they're doing so? Any evidence at all? After six years of mendacious, catastrophic Bushism? The two-party system in a nutshell: Ruthlessly effective and horrible versus well-meaning and all but totally feckless. What a great country.

Posted by: DrBB on August 5, 2007 at 9:58 PM | PERMALINK

I would have been happier with a shorter timeline than 6 months, but the point is this will sunset and the Congress is going to look very closely at what happened here in figuring out how to go forward.

It sunsets right in the midst of primary season, before Congress leaves for Easter break.

If you want to know what's going to happen, all you have to do is look at the period right before provisions in the Patriot Act were set to sunset. Democrats caved.

What's significant here is that the Democratic Senators who voted for this, all but 3 of them aren't facing reelection in 2008. And a 'yes' vote by any of those 3 might be detrimental to their careers. All but Carper, whom I suspect just might be Hillary's pick for #2 on her ticket.

Posted by: Maeven on August 5, 2007 at 9:58 PM | PERMALINK

I would have been happier with a shorter timeline than 6 months, but the point is this will sunset and the Congress is going to look very closely at what happened here in figuring out how to go forward.

The time to look at it closely was this time. It's ALWAYs this time. Why is next time going to be any different? THIS was, by any number of measures, "next time." How many next times do we need before we learn the same simple goddamn lesson?

These.

People.

Are.

Liars.

Posted by: DrBB on August 5, 2007 at 10:04 PM | PERMALINK

I read Obsidianwings this morning too--Lederman on balkinization linked to it, but this line by Publius turned me off:

"....But here’s my point. It’s pretty clear that the administration wants the authority to conduct electronic surveillance basically anywhere and anytime for anti-terrorism purposes. Perhaps I’m naïve, BUT I THINK THEY'RE MOTIVATED BY GOOD INTENTIONS..."

How could anyone following Goznales, the attorney purge, indefinite detention, domestic spying, potential seizure of assets, the lies that led up to the war, the ever-changing rationales for the imperial hegemony,, contractor abuse, Halliburton overcharges and the administration allowing them to submit a redacted report of zillions in overcharges, Abu Grahib, Guantanamo Bay,....EVER...think this administration is motivated by good intentions?

Will we be entering a new era of absolute political correctness since the new law will allow for monitoring email and blog comments--that's what I thought when I read Obsidian Wings.

Posted by: consider wisely always on August 5, 2007 at 10:10 PM | PERMALINK

I don't know. I think there's more to this than we can see. It's an odd coincidence, getting exactly 60 votes in the Senate, filibuster-proof. And that most of the Democrats that voted for it don't face primary challenges any time soon.

Did they get something for this, maybe? Something that won't be connected in public.

Posted by: Doctor Jay on August 5, 2007 at 10:16 PM | PERMALINK

if a packet doesnt know where its going, how the hell does it get there? If I 'capture' a packet, rest assured I know where its going, and, most probably, I know where it came from.

sheesh.

Posted by: mjc on August 5, 2007 at 10:21 PM | PERMALINK

one other point, and, I love liberty, and, frequently call overseas.. but, if I am a terrorist, and I buy a cell phone over seas, and bring it into the US, should FISA apply or not?

Posted by: mjc on August 5, 2007 at 10:25 PM | PERMALINK

I'm totally with Maeven. This is setup perfectly. So in six months, the bill sunsets, and the Republicans will run on how the Dems are thwarting terrorist surveillance. The Dem candidates will look "weak," the Republicans tough. And that's all she wrote.

Moreover, for Pelosi to even discuss going back on this bill is a slap in the face. Does she really think Congress would have the upper hand in negotiating a new bill? Or, that it would be any easier now that this bill has passed to rewrite FISA? No. Of course not. In fact, now that this bill has passed, it's going to be even harder to write a new bill and get it passed, barring some new terrible revelations come out about domestic surveillance. Congress insists on weakening its power, and the Democratic leadership is part of the problem.

Finally, how hard would it have been for Democrats to say that they negotiated in good faith, but the WH didn't want a new bill passed? To stress that if a terrorist incidence happens, it's the WH fault, not the fault of Congress, which tried to do something about fixing the FISA "problem" in addition to finally passing the 911 Commission's recommendations? Is that too tough for these people? C'mon.

Let's face it, the story in the news today is that the Dems look weak; that story is correct. The Dems do look weak, because they are weak. Pathetic.

Posted by: KC on August 5, 2007 at 10:25 PM | PERMALINK

Jim Webb, (D) Senator from Virginia, normally apt to be critical of Bush policies, voted FOR the bill, and explained as follows:

" Yesterday I supported two measures to amend the Foreign Intelligence Surveillance Act. These measures were considered against the backdrop of heightened concerns from our nation's intelligence community abut the threat of international terrorism. The ramifications of the two amendments before us last night were not political. Instead they related to the urgent demands of national security. I chose to heed those warnings. We now have six months to work in earnest to bring full accountability to the process.
This distinction and the threats to national security were stated clearly by Admiral McConnell as well as four of the eight Democratic members of the Senate Intelligence Committee. These members, Senators Feinstein, Mikulski, Bayh, and Bill Nelson, have extensive experience on intelligence matters and are respected champions of civil rights and liberties. They chose to give significant weight and deference to the intelligence community on FISA reform, and so did I.

There is near uniform, bipartisan agreement on the need to reform FISA to reflect modern telecommunications and information technology. We must do so in a way that safeguards basic civil and constitutional rights. But we must also remember that the terrorist threat to the nation is extremely serious. I remain fully committed to bringing accountability to this process, and to protecting the privacy rights of all Americans."


Posted by: consider wisely always on August 5, 2007 at 10:48 PM | PERMALINK

Per the NYT, some Dems felt pressured and bullied by the Reps.
First question - If House/Senate Dems are such wimps that they cave because of pressure from a lameduck, historically low in the polls administration why should I waste a vote on them?
Second question - If the Dem presidential candidates can't manage enough leadership to get fellow Dems to rally and show some backbone on this issue why should I vote for any of them?
I am truly disheartened and Dems being the lesser of evils just isn't enough.

Posted by: Voter on August 5, 2007 at 10:57 PM | PERMALINK

Hi. My name is George W. Bush, and carte blanche is the only card I carry!

The Republican Party just completed another theft--in plain sight if not in broad daylight. The "intelligence" community may examine the information on us and find something useful. The Republican political operatives will roll in the information, laughing hysterically.

Between now and 2008, Republican political operatives will be fighting what should be a losing battle. Sabotage will therefore be an important part of their strategy for stealing the elections or minimizing their losses. Between now and Congress' next chance to take a look at how much spying the administration is allowed to do, I would expect that the Democratic primaries will experience some very special Republican influences.

Posted by: Bosco on August 5, 2007 at 10:57 PM | PERMALINK

Lowell, at the raisingkaine blog, a Virginia progressive blogger, posted Webb's statement on his vote, and then said:

"...I really wonder if there's something godawful serious being planned right now by Al Qaeda. You know, just because the Bush Administration is a bunch of lying authoritarians doesn't mean that there isn't a terrorist threat"

I too am surprised Webb would cave, so who knows.

Posted by: consider wisely always on August 5, 2007 at 11:03 PM | PERMALINK

Conyers has just introduced something I've championed for awhile: an audit based approach. The NSA gets the flexibility it wants, and there's still some oversight involved.

Not bad for a first crack at fixing the glitch.

Posted by: jpe on August 5, 2007 at 11:06 PM | PERMALINK

If the packets in an audio encoded stream are broken up and actually do go different routes, it would be one hell of a job to reassemble all of them.

The NSA supposedly has something like half of all the computing power in the world, but I don't think they've got the juice for this job. Google doesn't.

The line tapping must be somewhat targeted. Democrats and patriots, I bet. ( I mean real patriots. )


Posted by: Joey Giraud on August 5, 2007 at 11:10 PM | PERMALINK

I read today as well that some of the leading democrats said they weren't waiting for 6 months to start working on it.

Posted by: consider wisely always on August 5, 2007 at 11:10 PM | PERMALINK

Democrats could have another election stolen from them since Gonzales can spy for a year
on those he chooses, and he doesn't have to give details.
It is a perfect plan for a Republican coup.

The first coup, of course, occurred in 2000, with the support of Jeb Bush, Katherine Harris, James Baker and the U.S. Supreme Court. Sandra Day O'Connor has her regrets to live with. She warned of dictatorship not all that long ago

Posted by: consider wisely always on August 5, 2007 at 11:18 PM | PERMALINK

"But we must also remember that the terrorist threat to the nation is extremely serious."

Oh yeah? Prove it, Mr. Webb!!

I'm so sick of fear mongering, and of Democrats who believe in and/or play along with this mass delusion of an imminent attack of massive proportions. I know it's a political loser to try to educate the masses, but are we the home of the brave or not?

Posted by: Joey Giraud on August 5, 2007 at 11:19 PM | PERMALINK

"Everyone agrees that it's OK to monitor foreign traffic without a warrant" As a person living outside the US I gotta say that if this is the way even progressive Americans feel about the rights of the rest of the world, then the imperialism has truly gotten to you all. Maybe you kinda deserve the President you've got. You feel the same way about China/Japan/whatever monitoring American traffic passing through their hubs? What's good for the goose etc.

Posted by: Mike in Denmark on August 5, 2007 at 11:27 PM | PERMALINK

Well said, Joey. I am sick of it too.

We have to educate Democratic senators and representatives.
We can't give up. We have an election coming up.
These imperialistic republican war-mongering neocons must leave office

Posted by: consider wisely always on August 5, 2007 at 11:30 PM | PERMALINK

It is a victory for GOP for sure.

But what kind of country do they want to live in? Where people's conversations can be monitored on just one man's say so? Sounds like a police state to me.

Posted by: gregor on August 5, 2007 at 11:38 PM | PERMALINK

Jim Webb is new to this section of government, the Senate. He comes to government service through the military, which tells us that he is programmed to respect and obey a hierarchy that discourages independent thought and take orders, top down.

Proof of that comes from his addressing McConnell not by his current title (DNI), but by his past title (where they were in a band of brothers):

"This distinction and the threats to national security were stated clearly by Admiral McConnell as well as four of the eight Democratic members of the Senate Intelligence Committee."

The other four of the eight Democratic members of the committee included the chairman, Jay Rockefeller.

What really disturbs me is that 'consider wisely always' defends Webb's decision to give away his vote due to his admitted ignorance of the facts and issues, to those who don't have strong records on civil rights. If the stakes weren't so serious, this comment of Webb's should lay anyone who knows these senators' records (very mixed leaning toward rigid right-wing authoritarian rule) out on the floor laughing:

"These members, Senators Feinstein, Mikulski, Bayh, and Bill Nelson, have extensive experience on intelligence matters and are respected champions of civil rights and liberties. They chose to give significant weight and deference to the intelligence community on FISA reform, and so did I."

Webb took the word of conservative Democrats, DINOs, on something that he himself is ignorant of. What a sorry state we're in when the choices that the people of Virginia have are Webb or George 'Macaca' Allen.

Posted by: Maeven on August 5, 2007 at 11:39 PM | PERMALINK

Pelosi is NOW telling Conyers and others to have a better FISA bill ready for consideration. Why the hell wasn't this done in ADVANCE?

Major vs. minor leagues indeed. Doubly so since my Democratic Rep. was one of the 41 cavers.

Posted by: SocraticGadfly on August 5, 2007 at 11:41 PM | PERMALINK

Bush out-flanked them on this one.

I wonder if there are Bushies in legal jeopardy because of this and are making it legal to protect them in future court cases?

Don't we have to assume that the Bush administration is spying on the Dems? Why else would they not work out an oversight that includes Congress?

Posted by: bakho on August 5, 2007 at 11:42 PM | PERMALINK

For the democrats to even consider giving this president and his lackey AG more power to do anything, including amending FISA, is the height of stupidity. At least the presidential front-runners and my personal senators did not vote for it. The Democratic party should stop pestering me for more money until they start acting with more resolve and leadership.

Posted by: Qwerty on August 5, 2007 at 11:43 PM | PERMALINK

http://www.wired.com/science/discoveries/news/2006/04/70621

AT&T has been feeding the NSA all of the data traveling on its fiber optic lines (i.e., our internet). The NSA then uses a Narus STA 6400 to filter through the data to find what they want. So says a retired technician responsible for the machines.

The CIA and NSA were designed to do things that are illegal.

Tell them I warned you when it's time to round you up.

Posted by: absent observer on August 5, 2007 at 11:51 PM | PERMALINK

There is near uniform, bipartisan agreement on the need to reform FISA to reflect modern telecommunications and information technology.

No, there really isn't such "uniform, bipartisan agreement."

There is widespread agreement that FISA is an unconstitutional body, and that "star chambers" have no place in a democratic republic. As a matter of fact, you can't have a free, democratic republic with FISA. You don't hear much about it because of our controlled corporate media.

We must do so in a way that safeguards basic civil and constitutional rights.

Yes, and that's open court rooms, where defendants are allowed to know who is accusing them and see the evidence against them.

But we must also remember that the terrorist threat to the nation is extremely serious.

I'm curious. Do you know anyone who's been a victim of terrorism? Have you lost anyone in your family, anyone you love, anyone you know at all, to an act of terror?

Have you considered how we got into this situation? What would make people so angry that they would turn away from the course of their lives and choose to give up their own lives so they could take out the lives of people they've never met?

Have you considered that maybe, just maybe, we in the U.S. get a narrative that serves the shareholders of Exxon, BP, Shell, but not many others?

Posted by: Maeven on August 5, 2007 at 11:52 PM | PERMALINK

Maeven--No, I don't know that. I expected with his distrust of the administration
that Webb would not be bullied into submission.
He is being asked to write a post at dailykos and explain himself.

Posted by: consider wisely always on August 6, 2007 at 12:01 AM | PERMALINK

Jim Webb, (D) Senator from Virginia, normally apt to be critical of Bush policies, voted FOR the bill, ..."

Don't you find it ironic that you are giving Webb (a senator elected to make educated decisions) the benefit of the doubt for taking the word of others (4 of 8 of the Democratic senators on the Intell Committee, who are cleared to see classified information but didn't), who apparently are also taking the word of others (Bush administration, who has consistently lied to them)?

We could have a contest, and count the number of times that this has happened in the past six years. The answer is, "Everytime there's been a vote for something that Bush wants."

Bush has been given everything he's wanted to fight his war on terror. All the money, all the legislation, and we're no safer now, and significantly lighter of our rights and protections. No Osama Bin Laden, Al Qaeda has grown, and yet this administration is still given everything that it demands, even after the voters made it very clear in the last election that we'd prefer the highway to Bush's way.

Something is very wrong here in America.

Posted by: Maeven on August 6, 2007 at 12:02 AM | PERMALINK

Something is very wrong--the constitution was shredded this weekend.
We progressives cannot agree on everything.
I personally was suprised Webb did not vote against the bill. Regardless of his statement that followed.

Posted by: consider wisely always on August 6, 2007 at 12:10 AM | PERMALINK

Did you know about this?

The White House still employs the leakers of Valerie Plame's identity and the cover corporation she and other CIA operatives worked at (Brewster Jennings), but whomever leaked that Bush and the NSA have been operating illegal, secret surveillance programs will be swinging from the highest yardarm.

Posted by: Maeven on August 6, 2007 at 12:13 AM | PERMALINK

> But the lesson of the Bush admin is that this
> kind of tactical monkey business may win
> victories, but they're ultimately hollow
> victories. They don't have staying power and
> the blow-back is very costly. If this analysis
> is true, for example, DNI McConnell just lost a
> whole lot of credibility.

Oh man. I am having a hard time typing because I have to wipe so many tears of ironic laughter out of my eyes. Please name one instance where Bush/Cheney have paid _any_ price for this sort of game. The Democrats have been so busy keeping their powder dry for the last 5 years that they are now choking on all that dry powder and W is laughing all the way to the bank.

Cranky

Posted by: Cranky Observer on August 6, 2007 at 12:16 AM | PERMALINK

These measures were considered against the backdrop of heightened concerns from our nation's intelligence community abut the threat of international terrorism. - Jim Webb

Like Joey said (above): "Prove it."

Can't? Why not?

Oh, I see, it's classified.

Well, what kind of a representative democracy is it where the "representatives" do everything based on "secret" information that their constituents are not allowed to see? How in fuck's name are we supposed to know if we are in fact being represented?

"Trust us" doesn't get it in my book. The intelligence (sic) community was complicit in the lies that got us into war in Iraq in the first place, and now we're supposed to trust them?

And Gonzales the liar is in charge of it all? With no congressional oversight?

Maybe I don't have the full picture, since, as Kevin pointed out, a lot of the details in this bill are... um, you know, classified.

Oh well, what do I know, I'm just a DFH.

Posted by: DFH on August 6, 2007 at 12:23 AM | PERMALINK

The criminals in the Bush administration "win" another one, while our democracy takes a further beating.

At least the provision that would have retroactively cleared all the telecommunication and banking industry corporations of any liability in cooperating with the Bushites in breaking the law was left out of this bill.

The Bush White House is already calling for Congress to pass this "amnesty" provision when Congress gets back from their break.

Of course, just the presence of this "amnesty" provision PROVES that laws were broken by these "loyal Bushie" telecommunication and banking entities when they folded under pressure from the White House and started conducting illegal warrantless wiretapping and data-mining of U.S. citizens. Which is why the criminals in the Bush White House are so desperate to get this "amnesty" provision for past criminal behavior passed into law. In other words, if there'd been no criminal activity, then there'd be no need for such a provision. Right?

And to think, there's still some delusional Christian evangelicals who believe Bush has a hotline to God and Jesus Christ, when it is quite obvious that the only hotline Bush answers is from hell...which I believe is patched through Dick Cheney's phone, and Alberto Gonzales', and Karl Rove's. It's a satanic party hotline. Hot. Hot. Hot. Burning with evil.

Posted by: The Oracle on August 6, 2007 at 12:28 AM | PERMALINK

Maeven--I was being sarcastic. I don't think you have to educate me.

Posted by: consider wisely always on August 6, 2007 at 12:29 AM | PERMALINK

Maeven--I was being sarcastic. I don't think you have to educate me.

I don't think I do either. Sorry if it seemed that way.

Signed,

Maeven, just typing 'out loud' to herself most of the time, not really believing what's happening is really happening...Not really believing that it could happen here in the U.S.A., in 2007.

Posted by: Maeven on August 6, 2007 at 12:36 AM | PERMALINK

Maeven >"...All this and Bush got a bill passed that legally allows him to spy on everyone, including Democratic politicians.

Why?"

Kinda makes you wonder what it is that the Bush Handlers, Inc. cabal have on the Democratic Party doesn`t it ?

Must be some real thugs behind the scenes over there at the RNC & their enablers

"Deep shit" really doesn`t cover the trouble "We the people..." are in at this point

And all this comes up for reauthorization in an election year...Big Trouble ahead folks

We got us some real mean hobgoblins to deal with

"The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." - H. L. Mencken

Posted by: daCascadian on August 6, 2007 at 12:42 AM | PERMALINK

Despite the theoretical problems with the wiretapping done by the Bush administration, there is not a single known case of abuse. And, there hasn't been a successful terrorist attack on the US since these surveillance methods were adopted.

You folks can complain of hypothetical problems, but the scoreboard reads: no abuse, no attacks. That's a perfect record.

Posted by: ex-liberal on August 6, 2007 at 12:48 AM | PERMALINK

The more likely explanation is that the Democrats realized that President Bush and his minions don't obey the law anyway, so what difference does it make what they approve. Get out of town before the Trent Lott terrorists launch their attack!

Posted by: Disgusted on August 6, 2007 at 12:57 AM | PERMALINK

"Everyone agrees that it's OK to monitor foreign traffic without a warrant"... You feel the same way about China/Japan/whatever monitoring American traffic passing through their hubs? What's good for the goose etc.

Mike, you don't understand. That's the whole point of being exceptional. It's okay coz they're the good guys (no matter what they do). The corollaries re. us I'm sure you can work out.

Posted by: snicker-snack on August 6, 2007 at 1:02 AM | PERMALINK

Maeven gets it:

For all their talk - there is no FUNCTIONAL difference between Dems and Republicans.

Posted by: bungholio on August 6, 2007 at 1:05 AM | PERMALINK

You folks can complain of hypothetical problems, but the scoreboard reads: no abuse, no attacks. That's a perfect record.
Posted by: ex-liberal on August 6, 2007 at 12:48 AM

And I'll give you another perfect record Execrable-liberal-- There has not been a single known case of a terrorist attack being thwarted by bush's illegal surveillance methods either.

Oh, I forgot, they're all classified, we just have to take the administration's word.

DFH

Posted by: DFH on August 6, 2007 at 1:11 AM | PERMALINK

I just picked up my email and have to share this with you:

From: democraticparty@democrats.org
Subject: They won't steal votes again

Dear Maeven,

Last year, we put DNC staff on the ground all across the country to rebuild our party and stand up to the lies and failures of the Republican Party. The 50-State Strategy worked. Those organizers were key to our unprecedented victories up and down the ballot in 2006.

Our organizers are still on the ground in all 50 states, preparing for 2008 in every way possible. And starting this month, they are kicking off an unprecedented voter protection effort, of a scale never attempted by any organization.

While Democrats protect everyone's right to vote, Karl Rove and the Republican Party have a long history of threatening this right, working to make it harder for Americans to vote. We're going to stop them.

Protecting the right of every eligible American to vote is our party's top priority because we know that it's good for America and good for our democracy when everyone votes.

All Americans deserve to go to the polls confident that they won't be harassed or intimidated. That they won't wait hours for a ballot and that their vote will be counted fairly and accurately. Unfortunately, nearly forty-two years after the signing of the voting rights act, millions of American's are treated like criminals just for trying to vote.

So we're going to meet with every election official in the country, visit every polling place, and make sure that every American will have their vote counted-and we will do it now, instead of waiting to hear about big problems on the news on Election Day 2008.

We need your help. By giving $20, $50 or $100 you can help support the organizers working in your state and the vital work they are doing to make sure every vote counts.

http://www.democrats.org/ProtectTheVote

Under the Bush Administration's politicized Justice Department we have seen an outright attack on voting rights. In their latest scheme, the Republican Administration has manipulated the mission of the Department of Justice, firing U.S. Attorneys who were unwilling to pursue phony "voter fraud" cases, and politicized the Civil Rights Division.

Over the past several years the GOP has tried everything from phone jamming schemes to vote purging to voter intimidation tactics to try and suppress the vote.

That's why this effort is so necessary. Support our organizers on the ground and help us make sure we can fix voting problems now, instead of on Election Day 2008.

http://www.democrats.org/ProtectTheVote

I've promised to build the infrastructure and develop the strategy Democrats need to fight everywhere, and this is exactly the kind of effort it takes. Our work may not be in the headlines right now, but it's how we are going to make an impact next year and in every election after that.

We all know what happened in Florida in 2000. We all know what happened in Ohio in 2004.

Help make sure it doesn't happen again in 2008.

http://www.democrats.org/ProtectTheVote

Sincerely,

Gov. Howard Dean, M.D.

You'll have to imagine my reply.

Posted by: Maeven on August 6, 2007 at 1:29 AM | PERMALINK

Despite the theoretical problems with the wiretapping done by the Bush administration, there is not a single known case of abuse.

How would anyone know? This is the problem.

Of what we do know of Bush's track record of being trusted with such sensitive powers, there have been gross abuses. This is a criminal administration that cannot be trusted, as has been demonstrated repeatedly these last six years.

Posted by: Maeven on August 6, 2007 at 2:13 AM | PERMALINK

Everyone agrees that it's OK to monitor foreign traffic without a warrant, and everyone agrees that it's not OK to monitor domestic traffic without a warrant.

I'm curious what makes Kevin think all Republicans agree that "it's not OK to monitor domestic traffic without a warrant."

Posted by: Gregory on August 6, 2007 at 8:46 AM | PERMALINK

Despite the theoretical problems with the wiretapping done by the Bush administration, there is not a single known case of abuse. And, there hasn't been a successful terrorist attack on the US since these surveillance methods were adopted.

"ex-liberal" is perfectly aware of the fallacious nature of this latest steaming pile of authoritarian, neocon propaganda. "ex-liberal" takes a sick joy in commenting here in bad fath. The bit about "hypothetical problems" must have given "ex-liberal" a particularly sick thrill. Why Kevins's moderator(s) tolerate his pissing all over the rug in here is quite beyond me.

Posted by: Gregory on August 6, 2007 at 8:54 AM | PERMALINK

It's time to target the Blue Dog Democrats. In addition to providing the level of support needed for this travesty, they are going to buy Petraeus' pile of bullshit in September about progess in Iraq, and sign on to further escalation of that crime against humanity as well.

Posted by: brewmn on August 6, 2007 at 10:53 AM | PERMALINK

These measures were considered against the backdrop of heightened concerns from our nation's intelligence community...

Mission Accomplished!!!

Posted by: The FearMongers on August 6, 2007 at 10:54 AM | PERMALINK

there is not a single known case of abuse...

Imagine that. No oversight - no abuse.

Posted by: ckelly on August 6, 2007 at 10:59 AM | PERMALINK
...there is not a single known case of abuse....ex-lax at 12:48 AM
Here is an article on some of the known abuses . Of course, since everything is being done in secrecy, including sending citizens to gulags, there are doubtless more, many more. Only fools and lying shills would maintain otherwise. It is again necessary to point out that almost 9 years lapsed between the first and second WTC attacks and that Dear Leader Bush took no action after being repeatedly warned. Posted by: Mike on August 6, 2007 at 1:41 PM | PERMALINK




 

 

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