Republicans fight Bush on terror tactics Updated Second Update

posted at 10:19 am on September 13, 2006 by Bryan

I’m trying to wrap my brain around this CNN article I’ve just read which, if even a shred of it is true, means the GOP caucus in Congress is led by fools who are ready to gut the president’s wartime powers and let terrorists attack us again before doing anything about it.

Here’s the scene. SCOTUS in the Hamdan decision stripped part of President Bush’s wartime powers to deal with captured enemy combatants and put much of that power in Congress’ hands. He can’t try them via military tribunals, as captured enemy operatives were tried in World War II and previous conflicts. One could argue that that’s because there has been no official declaration of war, but one could also argue that given the nature of the threat the executive might need even more power than previous wartime presidents. Nevertheless, after Hamdan Bush has to get Congressional approval to do anything other than just hold enemy combatants until the war ends, which could be decades from now. Bush responds to Hamdan by handing the issue to Congress as SCOTUS instructed, which is nominally controlled by his fellow Republicans, in a way that makes the issue an obvious election-year gimme as well as a good policy. The Republicans in both houses can approve military tribunals, deal with the wiretapping issues and work out the specifics of interrogation techniques all while putting the Democrats on the spot about their desires to give terrorists full constitutional rights, no surveillance of suspected terrorists and no tough tactics at all used to find out what captured terrorists know. It’s a no-brainer. But apparently several GOPers in the House and Senate approach it with no brain.

According to CNN, it isn’t working out. Because several Republicans in both Houses are raking Bush over the coals on all three issues. Opposing Bush in and of itself isn’t much of an issue as far as I’m concerned–the man is president after all, not God. And in some areas even he is still too soft on the enemy for my tastes. But it’s the angles of attack these Republicans are using that blow the mind. What are they thinking?

President Bush dispatched the vice president and top aides to the Capitol on Tuesday to try to break an election-season deadlock with Republicans over the surveillance and prosecution of terrorism suspects.

Bush’s surveillance plan faces a difficult fight in Congress, especially in the House, where GOP leaders favor a different approach.

That measure, sponsored by Rep. Heather Wilson, R-New Mexico, and endorsed by the GOP chairmen of the Judiciary and Intelligence committees, would require the administration to wait until a terrorist attack to open an electronic surveillance program (emphasis added).

Wait until an attack to start surveillance? What was 9-11? I’ll grant that Echelon, the Clinton-era data-mining operation that Democrats pretend never happened was established well before 9-11, but Bush’s program wasn’t. So he did wait until after an attack to open up the program. He kept it going long past 60 days, but Republicans and Democrats in Congress who were briefed on it had no problem with it, at least until the NY Times exposed it and the nutroots went, well, nuts about it.

What are the Republicans doing here? If they’re talking about more localized and specific surveillance, isn’t waiting until after an attack to spy on the terrorists too late? For one thing, the attack has already happened. For another, it’s pretty likely that the terrorists will have died in the attack. So what’s left to spy on and what’s the point of spying? If they’re playing politics, it’s foolish and could split the base between hawks and RINOs. It makes no sense.

Unless FISA grants rolling authorizations on a scale similar to the surveillance that’s been going on until now, Wilson’s bill will effectively deafen us to terrorist chatter than can hint of attacks. FISA increasing the number and scope of authorizations is always possible and the bill does try to streamline that process, but it seems unlikely to me. You insert the courts into warfighting and you get decisions like Hamdan that accumulate more power for the courts at the expense of the executive and, ultimately, national security.

Well, I thought CNN might be badly mischaracterizing Wilson’s legislation. It is an AP report we’re dealing with here, so maybe one of Saddam’s hangover moles wrote up the copy to screw up Republican unity. So I started looking around for other reports. The Washington Post’s take on the Wilson bill is far less incendiary than CNN’s.

Other GOP proposals — including bills proposed by Wilson and Sen. Mike DeWine (Ohio) — are opposed by Democrats and civil liberties groups because they formally authorize the NSA program. But the scope of the Wilson bill, for example, is more limited than Specter’s, and requires the executive branch to brief all members of the House and Senate intelligence committees.

The WSJ says the Wilson bill would give the administration 60 days after an attack to open up surveillance. So it agrees with CNN: No surveillance until after an attack without FISA’s say-so, which on the whole means there will be less surveillance.

The lovely and sharp Mary Katharine Ham helped me find out a bit more about the bill, straight from Rep. Wilson herself. Here’s what Wilson has to say about her own bill, H.R. 5825.

Wilson's surveillance bill

This bill as it reads above, in a description written by its own author, is awful. This bill ties the administration’s hands until after a terrorist attack, and then he can only spy for a short time based on some pretty specific information before he has to roll the dice with FISA (unless FISA has granted large-scale rolling authorizations prior to the attack, which would render Wilson’s 60 days moot).

Section 8 contains at least one major problem too: You don’t always know which terrorist group has hit until you cast a wide net and listen to a lot of the usual suspects. Al Qaeda isn’t the only terrorist group on earth, and Hezbollah for one has all but promised to attack us at some point. Section 8 seems to rule netcasting out, even after an attack, so we might not find out who hit us unless the culprits claim responsibility (again, unless FISA has granted large scale rolling authorizations, again rendering Wilson’s bill moot). Al Qaeda doesn’t usually claim responsibility until long after the fact, if at all. This bill as described above by Rep. Wilson has to die.

Then again, apparently even Wilson’s bill is too much for the Democrats to stomach. That makes me wonder just how little they want the administration to actually be able to do to stop terrorist attacks on US soil.

There’s even more to hold against Republicans, though. Senators Warner, McCain and Graham appear to be setting up the best intelligence-gathering program al Qaeda ever had. Check this out.

On the effort to craft a new way for military trials of terror detainees, Senate Majority Leader Bill Frist, R-Tennessee, said he supports the administration’s efforts and could call for a vote on it — or a competing bill favored by some GOP senators — at any time.

Graham said he expects the final legislation will allow a defendant to access all evidence used against them — a provision staunchly opposed by the White House and House and Senate leadership because it could reveal classified information. Graham said steps can be taken to prevent unnecessary exposure of protected information, but ultimately a fair trial must allow defendants the ability to confront evidence used against them.

“I think we’ve made a pretty good case that giving something to a jury to convict a defendant (with hidden evidence) is a nonstarter,” Graham added.

Ok. Senator Graham, have you ever heard of Lynne Stewart? If not, you ought to review her case. She’s the National Lawyers Guild (read: Communist front) lawyer convicted of using her position as a defense attorney to help accused (and later convicted) terrorists communicate. Now, imagine another Stewart running the defense of Khalid Sheik Mohammed. He is allowed to see all of the information being used against him at trial. He finds out many useful things about our intelligence sources and methods, as does the attorney, who at some point dribbles that information to KSM’s terrorist contacts. The information spreads all across al Qaeda and to every other terrorist state and organization on the planet. This has the potential to do tremendous damage to our intel-gathering capabilities. And for what purpose–to give terrorists who aren’t American citizens the same rights non-terrorists who are American citizens have? Then what’s the point of citizenship, when you get right down to it?

Graham says there will be ways to keep the most sensitive information away from the accused, but that’s an optimistic spin job. You never know what the terrorist will find most useful. But he will. If he knows a piece of information known only to himself and say two other terrorists, for instance, when you drop that info on him you’ve just told him who within his organization may be compromised. And you didn’t even know you’d told him that. Once he finds a way to get word back to his fellow jihadis, there goes the intelligence source.

And then there’s the same GOP cabal on interrogations. We found out this week that the gobsmackingly vile techniques used on the likes of Abu Zubaydah amounted to cold floors, sleep deprivation and the Red Hot Chili Peppers. I’ll stifle my boo-frickin-hoo, but apparently even that is too much for McCain et all.

Warner, Graham and McCain are pushing more precise definitions, as well as a ban on coerced testimony, to ensure tough interrogations do not lead to abuse or violate the Geneva Conventions.

I’m all for defining actual torture and ruling it out, but these senators seem intent on putting on the kid gloves when dealing with the worst of the worst.

You put this all together, and if these Republicans get their way we won’t spy on suspected terrorists until they strike if we ever spy on them unless FISA says so, if we happen to catch them after they kill Americans we’ll tell them pretty much everything we know about them and how we know it, and we won’t be able to get a thing from them unless they just feel like volunteering it because these Republicans will have defined torture down to include things the average frat boy got past in rush week. And all of this is coming from the party that’s supposed to be strong on national defense. I don’t even want to know what the Democrats are cooking up.

More: The debate right now centers on whether or not HR 5825 would force the administration to submit surveillance to FISA before an attack or not. Quoting a more extended passage from the CNN article that started this post:

Bush’s surveillance plan faces a difficult fight in Congress, especially in the House, where GOP leaders favor a different approach.

That measure, sponsored by Rep. Heather Wilson, R-New Mexico, and endorsed by the GOP chairmen of the Judiciary and Intelligence committees, would require the administration to wait until a terrorist attack to open an electronic surveillance program.

The White House has conditionally endorsed one bill, by Sen. Arlen Specter, R-Pennsylvania, as long as it’s passed unchanged — not a sure thing given amendments that await it on the floor as soon as next week.

Specter’s bill would submit the existing electronic surveillance program to the Foreign Intelligence Surveillance Act court for a one-time constitutional review and expand the time for emergency warrants from three to seven days.

Bush’s surveillance plan presently does not go through FISA. Specter’s plan would submit it to a one-time shot for Con review with FISA (where FISA could shoot it down entirely, thus killing it until Congress and the administration come up with an alternative), and that’s the plan that the White House “conditionally” endorses. Which means they don’t particularly like it but it seems to be the closest thing to a program they can live with. HR 5825, the one the WH opposes, appears to me to submit surveillance to FISA prior to an attack and gives the adminstration a 60-day window to monitor w/o FISA approval after an attack. I base that read on the context of the debate–Congress’ assumption is that he has to go through FISA, and 5825 takes that assumption into account, only allowing warrantless surveillance after an attack, and circumscribing that allowance narrowly in terms of who can be monitored while extending the actual warrantless monitoring period.

Second Update: I don’t actually have anything new to say, but that is the update. I put in three calls to Wilson’s office yesterday, including directly to her press officer’s cell phone, and got bupkis for the effort. I’m going to call them again tomorrow, but I suspect that once I identify myself as having written this post they’re hesitant to answer. Though I got too busy yesterday shooting and then editing Vent to continue updating, they have had my phone number for more than 24 hours now and have not even attempted to call back.

Here’s what we need to know: Does Wilson’s legislation require the administration to route its surveillance through FISA prior to a terrorist attack? If HR 5825 doesn’t, is there some other piece of legislation out there that does, or is Congress reading FISA so that the requirement is understood as already being in force? That is how I see things, since that is the direction the entire debate in Congress has gone. But I could be wrong.

I think it’s telling that Wilson’s office hasn’t offered any answers so far. I don’t want to make too much of that, but if I was mischaracterizing HR 5825 in a way that makes it look worse than it is, any sensible press officer would shoot it down asap. This story has already spread across about a dozen blogs I know of, so it’s getting out there. As I’ve said here and said to their receptionist on the phone, the last thing I want to do is mischaracterize this bill. I just want to understand both the bill and the thinking behind it, so I am quite reasonably asking the bill’s chief sponsor for comment. Is that too much to ask of those who represent us in Washington? I don’t think so.


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Anybody who support McCain in ’08 is really wanting us to fight the War or Terror blindfolded. And I also don’t discount his responsability for the current tenor of campaigning, since his ‘campaign reform’ led to the rise of the 527s and their hysterical counterparts.

Mike O on September 13, 2006 at 10:30 AM

Wait until an attack to start surveillance?

How exactly is that supposed to work? If you wait until after an attack, then who do you watch? The attackers are likely dead or captured, everybody else involved is hiding. After the fact, all you can do is document the destruction.

High Desert Wanderer on September 13, 2006 at 10:34 AM

ahem, excuse me, but uh…what the eff are they thinking?!

CP on September 13, 2006 at 10:40 AM

They need to get out of the ” Police action” mentality and realize that this is all-out war, and they also have to quit worrying about what their critics may think.It also seems this woman has given up and fully expects another attack.

bbz123 on September 13, 2006 at 10:41 AM

Makes you wonder if there really are some in the government who are conspiring with the terrorists and maybe the Truthers are on to something. /sarc

IrishEi on September 13, 2006 at 10:41 AM

who.votes.these.people.into.office???????????

pullingmyhairout on September 13, 2006 at 10:42 AM

pullingmyhairout:

The same people who nominated Keith Ellison in MN yesterday. From the “Front Page” article by Joel Mowbray:

Ellison has received financial and other help from executives at CAIR, which has deep connections to supporters of Islamic terrorism. Also among those who have contributed money to the candidate are an official from a group that participated in a “tribute” to the Iranian despot Ayatollah Khomenei and leaders of what is considered the political front in the U.S. for the Muslim Brotherhood.

http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=24324

IrishEi on September 13, 2006 at 10:49 AM

Wow, I was going to go over to her house site and tell her she’s a moron… but it won’t come up. Perhaps she’s getting the blowback she deserves…

E L Frederick on September 13, 2006 at 10:51 AM

Anyone else see the irony in the fact that in one post we have a possible dirty bomb plot, and in this one people who still want to keep their heads in the sand?

“now you see that evil will always triumph because good is dumb” – Dark Helmut

E L Frederick on September 13, 2006 at 10:59 AM

So in the case of Wilson’s proposal I can thumb my nose at you until I actually kill you and in the other proposal if I want to plant a mole so to speak to find out the current techniques and tactics of intelligence gathering I simply send Johnny Jihad out with the express intention of getting caught so that instead of me doing all that hard homework I get you to tell him how it is done which he can then relay to me. Anybody else have images of court appointed lawyers with ties to CAIR working these kind of cases pro bono?
Remember when being a spy was hard work? Between fake journalism, publishing of real secrets with no repercussions, and the basic BDS in this country it is a wonder we ain’t popping our butts up in the air for Allah to kiss already.

LakeRuins on September 13, 2006 at 11:00 AM

Why not take all the power away from the President and just make him a figure-head.

While we wait to see who gets killed first.

What are these people drinking?

Kini on September 13, 2006 at 11:05 AM

There are selfless patirots and soldiers . . . then there’s these wormy little politicians that are constantly running scared and tryng to cover their worthless butts.

rplat on September 13, 2006 at 11:23 AM

Bryan, ELF, et al:

I just got off the phone with her Washington office, and a John Larson says that the bill would also allow foreign surveillance “in the event of an imminent attack.” This additional allowance would be granted to the President — if he asks nicely — by the “heads of the national security subcommittees of the House and Senate.”

I asked how, exactly, the NSA will know of an imminent attack, since we won’t be doing any foreign surveillance, and he didn’t have much on that.

Larson made it clear that the legislation is proposed for the purpose of more clearly defining the “checks and balances on Presidential power,” which is to say limiting it.

In my calculus, she is thus either a Democrat or an idiot.

Jaibones on September 13, 2006 at 11:46 AM

Thanks Bryan… Truly frightening… I shudder to think about the ramifications of a Dem controlled Congress.

Sacwannabe on September 13, 2006 at 11:47 AM

I’ll admit it. I’m a bit confused by this thread.

I looked up the actual text of the bill and I can find nothing that modifies any necessary FISA court requirement for surveillence BEFORE an attack occurs, provided that the targets are agents of a foreign power. As far as I can determine, there is no change to the existing ability to monitor before an attack.

The bill explictly adds language that defines a “Agent of a Foreign Power” as anyone inside the USA receiving or transmitting foreign intelligence informaton. That’d be our Al Qaeda sleeper cells.

The bill also explictily affirms the need for a warrant for LAW ENFORCEMENT PURPOSES (my emphasis) — which, by exclusion, does not include foreign conterintelligence activities — if one or both parties are inside the USA. That means that the 4th Amendment still applies for LAW ENFORCEMENT, but does not explictly prohibit counterintelligence operations against people inside the USA without a warrant.

As I said: I’m confused at the nature of your claim and how this bill makes things worse. What I did was take the bill’s text as found on thomas.loc.gov, and applied the changes to the existing US Code. Now maybe I didn’t do it right, but I can’t see how the President is prevented from ordering communication intercepts until after an attack.

What this bill apparently does is EXTEND the period before the President is required to obtain a FISA court order, notwhithstanding the explanation of the bill’s intentions.

Did I analyze this incorrectly? Anybody? What am I missing?

georgej on September 13, 2006 at 11:49 AM

I for the life of me cannot figure out how such a RINO weasel like Graham actually won in SC … it just doesn’t compute. I hope South Carolinians will remember all his BS when primary season rolls around next time.

thirteen28 on September 13, 2006 at 11:53 AM

Thanks for making that call, Jaibones. That’s good and useful information.

I’d like to be charitable and think that Wilson et al haven’t thought this bill through to its full implications, but even that would be disturbing. Wilson is neither a Democrat nor an idiot, but I do think we’re seeing one of the problems with putting lawyers and Rhodes Scholar types in charge of everything (apologies to good lawyers and Rhodes Scholars everywhere). They’re thinking like attorneys instead of battlefield tacticians, and crafting wartime policy that simply won’t win the war.

Bryan on September 13, 2006 at 11:54 AM

The damdems will make MUCH hay over this. Come to think of it, every “Heather” I’ve ever met has turned out to be fucktards!

james hooker on September 13, 2006 at 11:55 AM

Georgej, Wilson’s bill prevents the president from surveilling anyone at all before an attack without FISA authorization. Given the nature of the threat and the vagueness that accompanies it, FISA will either have to grant large-scale rolling authorizations or it will end up getting in the way of surveillance. Letting the executive wiretap only after an attack defeats the purpose.

To take one case in point, Iyman Faris was plotting to blow up the Brooklyn Bridge along with everyone on it in 2003. He was stopped because a very wide surveillance net overheard him talking with an unidentified person in his native tongue, and they both mentioned “Brooklyn Bridge” in English over and over again and the spooks picked up on that. So they started watching him more carefully and eventually picked him up before he could launch his attack. There’s no way FISA would have prevented that, since there wasn’t a legalistic probable cause to monitor Faris before the attack was planned. Spooks just happened to pick up on his conversation along with a lot of others and then keyed in on his plan based on his own speech. I don’t see a way that the Wilson bill accounts for this kind of scenario, which will probably be more common in the coming years and decades.

Essentially, to stop terrorists you have to be vigilant and you have to get lucky, both of which happened in the Faris case. Running all of this through FISA delays and may prevent the vigilance and means you’ll have to get luckier than you would have before, since FISA is likely to shorten the surveillance net.

Bryan on September 13, 2006 at 12:04 PM

Did I analyze this incorrectly? Anybody? What am I missing?

georgej on September 13, 2006 at 11:49 AM

You’re missing the kneejerk reaction gene.

honora on September 13, 2006 at 12:09 PM

I didn’t knee-jerk anything, honora. If you read this post carefully you’ll note that I consulted a number of sources on this and brought my own knowledge of past cases to bear. I also spent three or four hours writing this post and had another set of eyes look it over before I published it. If I’ve misunderstood or mischaracterized Wilson’s bill I’ll be glad to stand down, and I’ve put in a call to Wilson’s office to get their comment on this. But please, don’t hide behind a pen name and slam me for reporting on this story. You’re just wasting everyone’s time.

Bryan on September 13, 2006 at 12:14 PM

Sorry, jumping to the conclusion that FISA won’t be able to craft a responsible means to conduct all needed surveillance and then the subsequent hysterical reaction is absolutely kneejerk.

honora on September 13, 2006 at 12:23 PM

Sorry, jumping to the conclusion that FISA won’t be able to craft a responsible means to conduct all needed surveillance and then the subsequent hysterical reaction is absolutely kneejerk.

The only kneejerk response here is yours, honora.

thirteen28 on September 13, 2006 at 12:25 PM

Ok, then show me how FISA with its probable cause limitations prevents Iyman Faris’ planned attack on the Brooklyn Bridge.

Bryan on September 13, 2006 at 12:25 PM

who.votes.these.people.into.office???????????

pullingmyhairout on September 13, 2006 at 10:42 AM

Good question.

Lawrence on September 13, 2006 at 12:29 PM

Bryan:

You wrote: “Georgej, Wilson’s bill prevents the president from surveilling anyone at all before an attack without FISA authorization.”

Help me out here. Where is the language in the bill that does that? I don’t find that in section 3 or 6 of the bill, or anywhere else.

The existing language in 50 USC 1802 that got Faris remains unchanged by the bill:

“(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that…”

What Wilson’s bill does is insure that Al Qaeda cells are properly labeled as agents of a foreign power by Section 2 “FISA Definitions.” As I read it the modified statute, it provides an EXEMPTION from warrants being required for in country intercepts if the targets are agents of a foreign power.

I don’t see how foiling another Faris type of plot would be adversely affected.

georgej on September 13, 2006 at 12:30 PM

Keep naming names and the proof for the rest of us to see.

As long as you give us the facts, we can make up our own minds. Instead of trying to persuade like Honora tried. Who is probably a liberal or an obstructionist who wants us to lose.

P.S. Thank You, Bryan

tormod on September 13, 2006 at 12:36 PM

We’re FUCHING DOOMED !!!!!
I really can not believe this sh*t. Who is this really? Zarqawi reincarnated and in Washington now?

Plus, small point but, the wording way up top there in section 7 reads attack against THE territory of the U.S. ?????? Should it not read against A or ANY territory of the U.S.
Besides, if it gets that far, we’re doomed.
Nitwits.

shooter on September 13, 2006 at 12:38 PM

Section 7, georgej. Prior to an attack, the president has to go through FISA. After, he has 60 days before he has to submit to FISA. Section 8–after an attack, he has to have identified the attackers before he can monitor them. The FISA definitions stipulate that you have to know who all the agents of a foreign power are before you can monitor them. But if you’re not listening, how do you know? Faris was not to my knowledge known to be an agent of a foreign power before he was overheard talking about the Brooklyn Bridge, but I’ll have to look into that to verify. According to DoJ he was communicating with al Qaeda agents outside the US and that’s how he was overheard. It’s not even clear the his passthrough agent was a known al Qaeda operative. He may have had a couple degrees of separation.

Bryan on September 13, 2006 at 12:39 PM

Ok, then show me how FISA with its probable cause limitations prevents Iyman Faris’ planned attack on the Brooklyn Bridge.

Bryan on September 13, 2006 at 12:25 PM

see georgej above.

honora on September 13, 2006 at 12:40 PM

There’s another issue here too, which a reader just brought up in email. Is al Qaeda, as a non-nation state actor, considered a “foreign power?” I would assume it is but the rules were drafted long before al Qaeda existed. If not, that complicates the rules even further. We’ll have to get Wilson’s comment on these issues.

Bryan on September 13, 2006 at 12:43 PM

Fighting headchoppers with lawyers is definetly a use of “disproporinate” force.

LakeRuins on September 13, 2006 at 12:44 PM

Essentially, to stop terrorists you have to be vigilant and you have to get lucky, both of which happened in the Faris case.

And, Bryan, as we keep getting hit by terrorists and one day possibly some terrorist DOES live to prosecute, all of our secrets will be announced A) by the courts, B) then by the NYTimes.

How do they really think this plays out over the next decade?

Thanks Bryan. I think.

shooter on September 13, 2006 at 12:45 PM

There’s another issue here too, which a reader just brought up in email. Is al Qaeda, as a non-nation state actor, considered a “foreign power?” I would assume it is but the rules were drafted long before al Qaeda existed. If not, that complicates the rules even further. We’ll have to get Wilson’s comment on these issues.

Bryan on September 13, 2006 at 12:43 PM

Footnotes explain that terrorists/terrorist organizations are included as “foreign powers”.

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001801—-000-.html#a

honora on September 13, 2006 at 12:54 PM

Good to know.

Bryan on September 13, 2006 at 12:59 PM

but I do think we’re seeing one of the problems with putting lawyers and Rhodes Scholar types in charge of everything (apologies to good lawyers and Rhodes Scholars everywhere). They’re thinking like attorneys instead of battlefield tacticians, and crafting wartime policy that simply won’t win the war

ARRRRRRRRRRRGHHHHHHHHHHHHHHHH…they are making me CRAZY! I DONT WANT TO DIE I WANT THEM TO FIND THE BADGUYS AND KILL THEM. What is SO DIFFICULT about agreeing on that?

labwrs on September 13, 2006 at 1:04 PM

Bryan,

I think you might be mistaken upon the effects of the bill.

I’m reading the bill from thomas.loc.gov using a bill number query of “hr5825″ and comparing the changes included to the existing US Code, title 50, sections 1801-1811 found at uscode.house.gov.

You refer to sections 7 and 8 of the bill.

Section 7 of HR5825 discusses warrantless surveillence and searches after an attack and sets the point when the President MUST to go to the FISA court or further authorization. It reads:

SEC. 7. AUTHORIZATION AFTER AN ARMED ATTACK.

(a) Electronic Surveillance- Section 111 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1811) is amended by striking `for a period not to exceed’ and all that follows and inserting the following: `for a period not to exceed 60 days following an armed attack against the territory of the United States if the President submits to each member of the congressional intelligence committee notification of the authorization under this section.’.

(b) Physical Search- Section 309 of such Act (50 U.S.C. 1829) is amended by striking `for a period not to exceed’ and all that follows and inserting the following: `for a period not to exceed 60 days following an armed attack against the territory of the United States if the President submits to each member of the congressional intelligence committee notification of the authorization under this section.’.

Section 7 replaces the limitation in 50 USC 1811 that limited electronic surveillence to 15 days by extending it to 60 days. And it EXPLICITLY adds permission to do SEARCHES without a warrant for 60 days, too.

Section 8 creates a new section, 50 USC 1812, which reads in part:

`Sec. 112. (a) In General- Notwithstanding any other provision of law, but subject to subsection (d), the President, acting through the Attorney General, may authorize electronic surveillance without an order under this title to acquire foreign intelligence information for a period not to exceed 45 days following a terrorist attack against the United States if the President submits a notification to each member of the congressional intelligence committees and a judge having jurisdiction under section 103 that–

`(1) the United States has been the subject of a terrorist attack; and

`(2) identifies the terrorist organizations or affiliates of terrorist organizations believed to be responsible for the terrorist attack.

Point 1: Neither Section 7 nor section 8 seem to state that the President is required to go to the FISA court prior to an attack. Can you tell me where in HR 5825 this language exists?

Point 2: Both sections (7 and 8) refer to actions AFTER an attack by either by a state or terrorists and do not deal with the time prior to an attack.

Point 3: The new Section 112 does not require INDIVIDUAL identification before a warrantless seach can occur, but identification as to WHICH TERRORIST ORGANIZATION is BELIEVED to be involved.

Point 4: The key part of 50 USC 1802 that authorizes intercepts without a warrant (for a period of up to a year), is not affected by this bill in any way.

Again, I’m looking for the language in this bill that REQUIRES the President to go to FISA court before an attack occurs, as you claimed in your post.

And I can’t find it. Can you?

georgej on September 13, 2006 at 1:11 PM

Bryan and GeorgeJ, you guys are lightyears ahead of me on the law and the legislation, but one point that I have to remind George of: the Wilson office said flatout that the intent of the bill is to limit the power of the President. Period.

We are still waiting for an appellate court (or SCOTUS) ruling on the NSA program, but I believe most analysts predicted that the answer to the problem was the lack of clear legislative authorization for surveillance beyond FISA, right?

If this is what we were waiting for, then Representative Wilson is putting limitations on authority well below that authority that the President is currently claiming. Isn’t that your read, Bryan?

PS honora, stfu you leftist troll.

Jaibones on September 13, 2006 at 1:15 PM

Bryan writes:

There’s another issue here too, which a reader just brought up in email. Is al Qaeda, as a non-nation state actor, considered a “foreign power?”

See Section 2 of the bill, “(a) Agent of a Foreign Power”

georgej on September 13, 2006 at 1:15 PM

I saw Dianne Feinstein on Fox this morning (my time) and she was droning on about the Church committee in 1978 and how the government “spied” on it’s citizens. Bill Hemmer cut her off at the pass on that one but I sometimes really wonder, whose rights are more important Allah’s or the American people. Of course I’m still hoping we’ll close our border to the hordes who come across everyday. I don’t care if they supposedly just want jobs. I’ve read that some former CIA types said that many of those who want to do us harm are hiding out in Mexico, learning the langugae and coming across as poor Mexicans doing the jobs the Gringos won’t do.

Catie96706 on September 13, 2006 at 1:31 PM

Okay I am reading the back and forth on this law and the proposed changes and right now the argument appears focused on a couple sections mainly dealing with actions AFTER an attack. Are there portions of the current law which deals with actions BEFORE an attack and are there any proposed changes to those portions?

LakeRuins on September 13, 2006 at 1:32 PM

This is all we need is some more confusing and ambiguous laws to try to sort through to protect our own people. What in the hell is the Congress good for? First, Feingold doesn’t want to call them ugly names and now the Republican Congressmen (lawyers) want to anticipate every possible contingency. Lawyers have never won a war. We elected the President, help him lead or get out of the way.

d1carter on September 13, 2006 at 1:34 PM

Jaibones writes:

Wilson office said flatout that the intent of the bill is to limit the power of the President. Period.

Oh, it does. Wilson is correct in that, but the limitations appear to be in reporting and justifying after the fact.

HR5825, as near as I can tell, forces the President to recertify every 45 days (for a terrorist attack)

TO EACH MEMBER OF THE COMMITTEE

, not just the chair and vice chair, AND a judge, that the need for surveillence or searches is justified.

This is new because prior to this, the President could limit (and designate) whom in the House and Senate he needed to brief. Now he is being ordered to tell everybody on the committee, increasing the chance of leaks to the enemy (by that, I mean the press and their allies, the terrorists).

The President also has to say WHY he is surveilling any particular US resident. Up until now, no President has had to justify his actions.

The President is REQUIRED to report 14 days after surveillence starts, and every 30 days thereafter the following:

`(1) a description of each target of electronic surveillance under this section; and

`(2) the basis for believing that each target is in communication with a terrorist organization or an affiliate of a terrorist organization.

All this is new, and IMHO, a serious requirement on the President. It’s “make work” chickenshit as far as I am concerned. Or, one could consider it job security for a member of the “government union class.”

My point is if the President is PREVENTED from conducting warrantless electronic surveillence until AFTER an attack upon the United States, as Bryon seems to fear, then this is a very bad bill. Fortunately, I can’t seem to find that provision anywhere in bill, and the place where it is already in law (50 USC 1802), is not modified by the bill.

And truth be told, I am concerned about too many Congresscritters (and their staffs) being made privy to sensitive intelligence information. The old saying goes “a secret shared among 3 people remains a secret only if 2 of them are dead.” ;^)

georgej on September 13, 2006 at 1:35 PM

PS honora, stfu you leftist troll.

Jaibones on September 13, 2006 at 1:15 PM

Brilliant, insightful response. Bravo!!!

honora on September 13, 2006 at 1:36 PM

Honora writes indignantly:

“Brilliant, insightful response. Bravo!!!”

Well, you did kinda ask for it. ;^)

georgej on September 13, 2006 at 1:39 PM

I’ve read that former CIA types said that many of those who want to do us harm are hiding out in Mexico, learning the language and coming across as poor Mexicans doing the jobs the Gringos won’t do.

They are a very patient, cunning and deadly enemy. They have proved that.

Bic on September 13, 2006 at 1:42 PM

We have already seen how good those entrusted with national security secrets are at keeping secrets. Anybody else find it ironic that one of the few areas that the 911 Commission gave the administration a grade of “A” on was the tracking of financial transactions which was quickly followed by newspaper reports of the very same program thereby rendering it useless.
“Secret” prisons, not anymore
Clandestine monitoring of foreign communications *POOF*
Stressful interogation techniques Where do I sign up to get to Gitmo? I saw the Lazy Boy recliner used in questioning the guests and it is better then anything I have in my house.
The only thing we can be sure of is there are probably no ACLU offices on terrorist target lists.

LakeRuins on September 13, 2006 at 1:43 PM

Honora writes indignantly:

“Brilliant, insightful response. Bravo!!!”

Well, you did kinda ask for it. ;^)

georgej on September 13, 2006 at 1:39 PM

Indeed. Red flag to a bull, that’s me. ;^)

honora on September 13, 2006 at 1:47 PM

Yes, Jaibones, that’s my read on this bill. The entire purpose of it is to put surveillance back under FISA. Wilson’s office should clarify that point, though, because it is obviously central to the whole debate.

Bryan on September 13, 2006 at 1:48 PM

GeorgeJ,

Thanks for the break down; I think we all see this the same way, except that you might not see it as a substantial change to what we already have. I hope you’re right…

Jaibones on September 13, 2006 at 1:54 PM

Yes, Jaibones, that’s my read on this bill. The entire purpose of it is to put surveillance back under FISA. Wilson’s office should clarify that point, though, because it is obviously central to the whole debate.

Bryan on September 13, 2006 at 1:48 PM

If you’re correct on your read, and I think you are, a lot of this is just smoke. The real debate is where does this power belong. Which is way simpler and at the same time way more complicated. This stuff makes my head hurt.

honora on September 13, 2006 at 1:56 PM

Bryan writes:

Yes, Jaibones, that’s my read on this bill. The entire purpose of it is to put surveillance back under FISA.

With respect to actions taken after an attack, the President has much more work to do to justify warrantless searches and surveillence. But the time limit before he had to go to the FISA court is 3 times as long as it is now.

Fortunately, your fear that the President must go to FISA before an attack seems to be baseless.

Don’t get me wrong, this is NOT an ideal bill. But if your fears were founded in fact, this bill WOULD be a disaster.

georgej on September 13, 2006 at 1:57 PM

But georgej, before you say my fears are groundless–and they may well be but I don’t think so–the chief argument against Bush’s surveillance policy up to now has been that he didn’t go through FISA, and secondarily that he didn’t brief enough people in Congress about the program. Congress has been debating various bills, this one among them, that deal with the administration’s objections to going through FISA and limit the warrantless wiretap authority generally. Wilson’s bill streamlines FISA requirements, which is a good thing, and extends what the president can do after an attack. I take it as an assumption that they’re requiring him to go through FISA before an attack, because that appears to be Congress’ assumption of what he is supposed to do based on FISA itself.

Bryan on September 13, 2006 at 2:06 PM

Bush is blowing smoke. Just more ooorah blather. Now he has united Iran and Iraq………what a genius. The evil axis is now meeting together, standing on the lives, arms and legs of destroyed Americans……….I am Sick of this stupidity.
We saved Iraq so their leaders can kiss up to Iran. All you Bushies and Condi’s are crazy……….politically insane.
God, wake up.

LZVandy on September 13, 2006 at 2:14 PM

Bush is blowing smoke. Just more ooorah blather. Now he has united Iran and Iraq………what a genius. The evil axis is now meeting together, standing on the lives, arms and legs of destroyed Americans……….I am Sick of this stupidity.
We saved Iraq so their leaders can kiss up to Iran. All you Bushies and Condi’s are crazy……….politically insane.
God, wake up.

LZVandy on September 13, 2006 at 2:14 PM

And…..WHAT, PRAY TELL, would YOU have done differently?????

btw, you are hijacking the thread by writing off topic…

Personally, I’m no lawyer (and I don’t even play one on t.v.) but it seems to be that georgej is right. I haven’t been able to see how this bill changes what the president must do BEFORE an attack. But like I said, I’m no lawyer…

I don’t like to wish Bryan wrong on anything, but I hope you ARE wrong in this case. sorry, dude.

pullingmyhairout on September 13, 2006 at 2:31 PM

I’d rather be wrong than right in this case. I just don’t think I am, based on the entire context of the debate as it’s proceeded over the past several months.

Bryan on September 13, 2006 at 2:34 PM

if you are right, we are in serious trouble as a nation.

pullingmyhairout on September 13, 2006 at 2:35 PM

Bryan, if you were POTUS, what would your proposal be in terms of FISA? Specter’s bill seems more practical to me.

pullingmyhairout on September 13, 2006 at 2:37 PM

Please excuse me….I thought the subject was ‘terror tactics’…….not tactic, but tactics……which includes everything!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

LZVandy on September 13, 2006 at 2:58 PM

including GWB’s failure to secure Iraq…………and instead turned it into a Shia nation…..joined with Iran!
What would I have done differently.
When they dragged and burned our military agents….I would have leveled Falujah.
I would have already arrested and hung Sadr.cc
I would confiscate every weapon in Ir,aq through intimidation, violence and separation of families.

LZVandy on September 13, 2006 at 3:05 PM

in other words…………..HAVE A WAR!!!!!!!!!!!!!!

LZVandy on September 13, 2006 at 3:06 PM

Arm chair generals say a lot, but when it hits the fan they are usually found under the ccouch sucking their thumb.

Georgej makes a lot of good points, it does seem as if this bill is more in line to define and limit the presidents powers.
But it does confuse the issue.

Wyrd on September 13, 2006 at 4:02 PM

Larson made it clear that the legislation is proposed for the purpose of more clearly defining the “checks and balances on Presidential power,” which is to say limiting it.

In my calculus, she is thus either a Democrat or an idiot.

Jaibones on September 13, 2006 at 11:46 AM

DEMOCRAT=IDIOT.

Someone should walk up to this stupid cow and KICK HER YELLOW LIBERAL ASS!

In the chest of a liberal, beats the heart of a coward.

Soothsayer on September 13, 2006 at 4:28 PM

This bit about Rep. Heather Wilson is wrong.

That measure, sponsored by Rep. Heather Wilson, R-New Mexico, and endorsed by the GOP chairmen of the Judiciary and Intelligence committees, would require the administration to wait until a terrorist attack to open an electronic surveillance program.

The measure would allow the administration to have 45 days of warrantless wiretapping after a terrorist attack. They’d have to inform a judge and a congressional committee (1) that a terror attack had taken place and (2) who is believed to be responsible for the attack.

This is an expansion of the President’s powers under FISA which currently only allows 15 days of warrantless wiretapping following the declaration of war by Congress… it’s not a restriction. It certainly isn’t saying that the government has only 45 days after an attack for listening in to terrorists’ communications! They just have to keep the FISA court in the loop after/before that. Right now they have to keep FISA in the loop all the time (since the 15 day window has passed).

Of course, isn’t this all moot? The President believes that the AUMF gives him the ability to circumvent FISA. Even if FISA is amended, can’t he just ignore the newly amended version like he ignored the version he amended in 2001? If you have the ability to ignore the law, it doesn’t much matter if the law is changed.

Bush’s surveillance plan presently does not go through FISA.

Some of it does. At least that’s what Gonzales said when they revealed the program in December.

Remember, none of this (from what I’ve read of the bill) changes the fact that in emergencies, you can retroactively get a FISA warrant. Listen now, get a warrant later.

Mark Jaquith on September 13, 2006 at 4:50 PM

Wyrd, you ever walked point for idiot politicians???????
I have.
LZVandy is next to KheSanh

An arm chair general is ten times better than this lot of
yankee civil war dunces.

LZVandy on September 13, 2006 at 5:09 PM

Nope, never did.
My father got shot up a few times in Nam though. When he was wrong he was still wrong. He fought and was wounded for his country. And his country betrayed him. But he never stopped loving his country, and would have died for it.

You can spout off like a democrat and say “Bush did this wrong! Bush did that wrong! Their is a better way!” And just like a democrat you can refuse to say WHAT the better way is. Probaly because criticism is easy, especialy in hind sight. Making the hard decisions when the shit hits the fan though, now THATS hard. And you do not know how it will pan out until long after the decisions have been made.

Criticize the current regime all you want. It is 1000 times better then the alternative. Course thats my opinion. Maybe if Kerry had won the election the world would be at peace, and we would all be riding unicorns to work. If Gore had won we would no longer need oil, everything would run off of magic fairy farts. I seriously doubt that though. The real world is a bit more complicated then fairy farts, or the simplistic world view offered to us by the democrats.

I apprecate your service, but that does not give you any more moral authority then me, Bryan, Honora, GWB, Kerry or anyone else. All it gives you is my appreciation that you answered your countries call.

Wyrd on September 13, 2006 at 7:18 PM

Check out Wilson’s official site. Under Issues:


My priority as your advocate in Washington is to work for legislation which will benefit you and your family and the people of New Mexico. Sometimes that means I write and introduce bills myself, and sometimes I work with other members of Congress who share my goals by co- sponsoring bills they have written. Writing amendments to bills and winning support for them is another way I work on solving problems for New Mexico

Missing are the list of issues you normally find on a Congressman’s site. I always check the list to see what they leave out.

Bills sponsored are mostly banal:

> Providing for acceptance of a statue of Po’Pay
> establishment of a Bipartisan Commission on Medicaid.
> tax credit for teachers and principals who work in certain low income schools
>direct the Secretary of Health and Human Services to establish, promote, and support a comprehensive prevention, research, and medical management referral program for hepatitis C
>development of comprehensive State water plans
>make available additional funds to increase access to the art

etc, including

>To update the Foreign Intelligence Surveillance Act of 1978

cosponsors include Hoekstra, Sensenbrenner

Bills Co-Sponsored:
>Honoring the life and contributions of Yogi Bhajan
>a commemorative postage stamp should be issued to promote public awareness of Down syndrome
>Conveying the sympathy of Congress to the families of the young women murdered in the State of Chihuahua, Mexico, and encouraging increased United States involvement in bringing an end to these crimes
>Expressing the need for enhanced public awareness of traumatic brain injury
> Supporting the goal of eliminating suffering and death due to cancer by the year 2015
>Raising awareness and encouraging prevention of stalking by establishing January 2006 as “National Stalking Awareness Month
>To congratulate the National Aeronautics and Space Administration on the 25th anniversary
>Supporting the goals and ideals of the National Arbor Day
>Recognizing the contributions of the United States Marine Corps
>Recognizing the University of Pittsburgh, Dr. Jonas Salk
>Recognizing America’s Blood Centers
>Supporting the goals and ideals of National Hepatitis B Awareness Week.
>Supporting efforts to increase childhood cancer awareness
>Supporting the goals and ideals of Cambodian-American Freedom Day.
>Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States.
>To amend the Voting Rights Act of 1965

etc

Long lists but they show she is a fluff to be sponsoring this FISA legislation. Compare to bills sponsored by Sensenbrenner, which include repeal of the 22nd amendment and Hoekstra

I wonder if she was chosen for her invisibility? Hard to tell in the aisles of devious known as Congress.

entagor on September 13, 2006 at 10:59 PM

LZV: it was pretty hard to see the picture of that little bearded maggot and the Iraqi guy holding hands, wasn’t it? Man…

Jaibones on September 13, 2006 at 11:25 PM

Man,
Bryan, georgie, jaibones, and some others too. You guys are on this like white on rice. Man do I appreciate your expetise, talent and ACTION. When I first read this around 11:30 am I checked a few stories on the web and then called Wilson’s office in Washington. I got some airhead young gal, intern who didn’t even know about Beslan! I asked her her major and she said ‘Poly Sci’. I said to her how the heck can you work in the Senators office and not know about a event like Beslan, especially being in ‘college?????’ I asked that becasue Wilson’s fargin ammendment is a killer on secuirty!!!WTF is she thinking. Damn. I would like to whack some sense into her freeking skull.

What a bunch of BS though. Look at all this damn crap being thrown on W and the rest of those trying to protect this country. Damn. If we get hit, there’s gonna be some hangins’

I demanded to speak to someone more senior to her and quite frankly she gave a doofus named Marcus I think it was and he didn’t even know about the damn thing!!!!!
After I explained it to him and made him go to the AP story where it quoted dipshits ammendment he said he would turn it over to someone else. That bitch has got to be crazy. WTF is she or others doing tieing up all the under tons of bullshit law????????????? The frgin 9-11 commission all but outed Gorelic and all the other Clintonistas for the crap job they had done and burying our security in mounds of beauracracy. Get them the hell off the Hill.

auspatriotman on September 14, 2006 at 1:05 AM

Wilson graduated from the Air Force Academy. She is a Rhodes Scholar (where have we heard that before) with a doctorate in Interbational Relations from Oxford.Director for European Defense Policy and Arms Control on the National Security Council staff at the White House under Bush senior.

Her site has a description of what the bill will accomplish but not what it will require, other than:

requiring that more information be provided to the courts and each member of the House and Senate Intelligence committees

entagor on September 14, 2006 at 8:47 AM

Criticize the current regime all you want. It is 1000 times better then the alternative. Course thats my opinion. Maybe if Kerry had won the election the world would be at peace, and we would all be riding unicorns to work. If Gore had won we would no longer need oil, everything would run off of magic fairy farts. I seriously doubt that though. The real world is a bit more complicated then fairy farts, or the simplistic world view offered to us by the democrats.

Wyrd on September 13, 2006 at 7:18 PM

LOL. You know, you could do the Dems some good, you have a sounder alternate agenda than they seem to be able to muster!

honora on September 14, 2006 at 9:51 AM

auspatriotman If the folks working in her office are the same ones she is relying on to gather information regarding the FISA’s abilities he would be better served by hiring some elementary school children. Is it any wonder our elected officials are so clueless?
Sounds like Ms Wilson’s interns and staff need to spend less time on myspace and more on political blog web sites.

LakeRuins on September 14, 2006 at 12:45 PM

http://www.cnn.com/2006/POLITICS/09/14/congress.tribunals/index.html

Powell, Vessey issue statements supporting McCain et al in their position vis a vis the Geneva Convention, military tribunals.

honora on September 14, 2006 at 12:59 PM

Thanks for the analysis Bryan and georgj, but you have missed the key changes in HR 5825. I will post a more detailed analysis tonight when I have more time, but the key changes are in the changes to definition of “Agent of a foreign power”, of “Electronic surveillance”, particularly (f)(1), and the changes to Sec 102 concerning exceptions relating to a foreign power or an agent of a foreign power. The bill will actually give the president more power prior to an attack, not less. For a hint, see here where the ACLU is wailing, although they have not done the analysis: http://intelligence.house.gov/media/pdfs/ACLU072706.pdf#search=%22hr%205825%22

Jonesy on September 14, 2006 at 4:43 PM

Analysis I: Definitions

FISA, prohibits “electronic surveillance” except as authorized by statutory law. The current version of FISA defines electronic surveillance as:
“(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. . . .”

HR 5825 would define it as follows:
`”(1) the installation or use of a surveillance device for the intentional collection of information relating to a person who is reasonably believed to be in the United States by intentionally targeting that person, under circumstances in which the person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or

`(2) the intentional acquisition of the contents of any communication, without the consent of a party to the communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, if both the sender and all intended recipients are located within the United States.”

Notice that the “sent by or intended to be received by a particular, known United States person” language of (1) is gone and replaced by “relating to a person who is reasonably believed to be in the United States”. I would like to see the legislative history to interpret what is meant by “relating to a person”, but the change evidences a desire to not necessarily include information “intended to be received by…”. The new language though will need interpretation beyond the scope of this post.

(2) was changed from “to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States”, which includes information gathered in the US if it is from or to a person in the US, to “if both the sender and all intended recipients are located within the United States.” Big change, now this provision would exclude only information where both parties are in the US instead of one party in US and info acquired in US.

Jonesy on September 14, 2006 at 6:41 PM

Sorry for the long posts, but this is the only way to understand!! This stuff is not easy, and don’t listen to ANYTHING from CNN. This is where it gets good.

Analysis II Electronic surveillance authorization without court order Sec. 102 (1802) currently reads:

“(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party…”

HR 5825 version:
” …(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications of a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a), or an agent of a foreign power, as defined in section 101(b)(1); or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2) of this title;

Now, this will change the certification required by the AG from “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers” to “the acquisition of the contents of communications of a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a), or an agent of a foreign power, as defined in section 101(b)(1).” Now, an agent of a foreign power is sufficient (all terrorists in the US or elsewhere). Further, and importantly, paragraph (B) is deleted completely, which prohibited certification by the AG for communications where a US person is a party.

This is very good, (unless you are an ACLU traitor, or honora), because now the AG can authorize warantless surveillance without a court order where the communication is of a foreign power or agent of a foreign power. So, the president and AG will actually have more power before an attack, not less as asserted by CNN. I expect the author of the legislation is not in a hurry to correct CNN for obvious reasons.

Jonesy on September 14, 2006 at 7:15 PM

I agree with georgej to the extent that the provisions of sections 7 and 8 do not affect what can be done before an attack. If we can identify terrorists in the US, the AG can certify and listen, but Bryan raises a good point, what if we don’t know who they are? Well, the definition of “electronic surveillance” above would seem to allow us to listen to calls from a foreign party where we are not “targeting” a particular US person, meaning we don’t know who the foreign party is going to call.

Jonesy on September 14, 2006 at 7:38 PM

Jonesy, et al,

The art in this analysis is to simply the points, rather than complicate. With all due respect to your obvious knowledge of some of the detail, I think the stunned silence that has greeted your posts is just confusion.

Hats off to Bryan for a great vent and continuing to seek some clarification of a complicated bill from Wilson’s office. I was stunned by their initial forthrightness, and maybe they were too, if you know what I mean…

PS

This is very good, (unless you are an ACLU traitor, or honora)

Heh.

Jaibones on September 15, 2006 at 12:45 AM

(Sorry: simplify )

Jaibones on September 15, 2006 at 11:14 AM

Jaibones is correct, you gotta be a lawyer to plow through this! OK, here is the simplified version: The bill will narrow the definition of electronic surveillance to not include things that were previously included, allowing the government to listen in more often. Additionally, it will allow the attorney general authorize surveillance without a court order more often. The bill clearly allows more than the previous version of FISA, and does not prohibit all surveillance prior to an attack.

Jonesy on September 15, 2006 at 11:44 AM

Interesting to go back and read all the comments on this post. Maybe the lesson is to get all the info and delve into the actual facts before running around like Chicken Litle.

Nah.

honora on September 15, 2006 at 12:18 PM

If we, as a nation, don’t have the basic descency to not “torture” or “stress” these people into confessions (some of which have proved completely false), then we certainly have no authority to enforce our values with the barrel of a gun. I can only hope that those who support torture are picked up, without warrant, trial, or representation, by the Bush administration, and are tortured to within an inch of their lives. That would make me smile.

shackler on September 15, 2006 at 2:32 PM