The Administration's new FISA defense is factually false

[kpete]

Tuesday, January 24, 2006
The Administration's new FISA defense is factually false

In light of Gen. Hayden's new claim yesterday that the reason the Bush Administration decided to eavesdrop outside of FISA is because the "probable cause" standard for obtaining a FISA warrant was too onerous (and prevented them from obtaining warrants they needed to eavesdrop), there is a fact which I have not seen discussed anywhere but which now appears extremely significant, at least to me.

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:


to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

more at:http://glenngreenwald.blogspot.com/2006/01/administrations-new-fisa-defense-is.html

[FloridaPat]

1. These guys are so good at lying but they couldn't come up w/ a lie

for probably cause. But who were they spying on before 9-11??

[yourout]

2. This whole defense is pure BS.

The FISA courts give the Feds an incredible amount of leaway in getting what they want. The only reason they side stepped FISA was because they knew what they wanted was so blatently illegal that even the FISA courts would have turned them down. And yes they are spying on anyone that disagrees with them including political parties.

[Vincardog]

3. Bingo We have a winner

[MercutioATC]

4. How many FISA rejections since 1979? FOUR!

That's right. Over 15,000 applications. Four rejections. What more does the administration need?

http://www.epic.org/privacy/wiretap/stats/fisa_stats.html

[rumpel]

5. kpete, Patriot Act Sec. 214 & 215

I think they already can and do monitor, however it is the FBI and not the NSA. There seem to be 2 warrants, a) through the FISA court and b) through something called the National Security Letters (NSL) issued by the DOJ.

Interesting info in the document is that the Intelligence Committee asked how many times libraries were asked to provide information through this section of the Patriot Act the response was 50 times, however according to a survey of libraries out of 906 respondening libraries "545 indicated libraries indicated that local and federal law enforcement agencies asked for records pertaining to book circulation and patron usage of public access computers." (Estabrooke, 2003)

There have been several attempts to ammend and bills were introduced such as to at least have the NSL's go through the FISA court and not just be an Attorney General rubberstamp.

A case filed by an annonymous ISP provider, which was also served with a NSL under section 505, was ruled in favor of the ISP, declaring Sec 505 unconstitutional. Doe v. Ashcroft (2004) it says: This is significant because the verbiage used in this section is very similar to the verbiage of Section 215 regarding the NSL.

So my question to the lawmakers would be, if the FBI and DOJ already operate under this law, what precludes the NSA to issue NSL's or utilize the existing FBI issued NSL's. I find this troublesome.

This info I found this pdf document titled:

The USA PATRIOT Act: What Librarians Should Know to Protect the Privacy and Confidentiality of Their Patrons
Supriya Wronkiewicz
LIBR 200-02
Libraries and Society
School of Library and Information Science
San Jose State University

excerpt

A second section of concern is Section 214, which allows for extension of the FBI’s monitoring authority in FISA investigations, including addressing any information for Internet traffic, such as e-mail addresses and websites (ALA, 2002). Section 216 of this legislation is also problematic for libraries, which like Section 214 allows for extension of the telephone monitoring laws regarding “pen register” and “trap and trace” devices to route and address all Internet traffic on the lines tapped (ALA, 2002). According to the ALA, libraries providing Internet access have the potential to be targeted by a court order requiring the libraries’ cooperation in monitoring a patron’s electronic correspondence sent through the library’s computer system. The enhancements given to surveillance methods and procedures have impacted libraries as they present a major challenge to libraries in their mission to protect patron privacy and confidentiality within their institutions (ALA, 2002).

and

With it having amended over fifteen federal statutes, the USA PATRIOT Act has also affected basic rights granted by the US Constitution and the constitutional separation of powers within the government. The constitutional rights affected include the rights to:
Free speech, assembly, and ability to petition the government for redress of grievance (1st Amendment); freedom from unreasonable search and seizure, a requirement for probable cause for obtaining warrants, and a specific description of the objects of searches (4th Amendment); due process of law before the loss of liberty (5th Amendment); speedy and public trial, and the assistance of counsel (6th Amendment); equal protection of the law (14th Amendment) (Pinnell-Stephens, 2003, p. 6).
Many of these rights are affected by the changes made to the FISA statute. As orders based on this statute come from a separate court, the Foreign Intelligence Surveillance Court (FISC), the warrants requested under this statute only require the approval of this court. According to Pinnell-Stephens, so long as the FBI can show that the information obtained by the requested warrant has any level of relevance to an ongoing investigation and provided that the paperwork is complete, the FISC cannot deny the warrant.

and

According to the DOJ, the USA PATRIOT Act enables law enforcement to “conduct investigations without tipping off terrorists” (DOJ, USA PATRIOT Act Overview Section). This is another cause for concern regarding Section 215: the secrecy clause included. This clause allows the FBI to issue orders in the form of National Security Letters (NSL), administrative subpoenas that are issued not by courts, but by the FBI itself, which would forbid a library staff member from disclosing any information about the investigation to another party other than legal counsel.

The legal language of "probable, reasonable and due process" is a prominent problem.

In light of all these "tools" already provided, which alone question the constitutionality of many of the sections of the Patriot Act, * & Co still chooses to trample on the laws, and the constitution.

I watched Hayden, it's all bull.

We all have to seriously weigh all implications imposed on us by the terror hype.

[cascadiance]

6. Here's Hayden trying to rationalize that Probable Cause doesn't exist!

It's this sort of fascist interpretation of this ammendment that we're up against!

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1001883620

Defending Spy Program, General Reveals Shaky Grip on 4th Amendment

By E&P Staff

Published: January 23, 2006 10:05 PM ET

NEW YORK The former national director of the National Security Agency, in an appearance today before the National Press Club in Washington, D.C., today, appeared to be unfamiliar with the Fourth Amendment to the U.S. Constitution when pressed by a reporter with Knight Ridder's Washington office -- despite his claims that he was actually something of an expert on it.

General Michael Hayden, principal deputy director of National Intelligence with the Office of National Intelligence, talked with reporters about the current controversy surrounding the National Security Agency's warrantless monitoring of communications of suspected al Qaeda terrorists. Hayden has been in this position since last April, but was NSA director when the NSA monitoring program began in 2001.

As the last journalist to get in a question, Jonathan Landay, a well-regarded investigative reporter for Knight Ridder, noted that Gen. Hayden repeatedly referred to the Fourth Amendment's search standard of "reasonableness" without mentioning that it also demands "probable cause." Hayden seemed to deny that the amendment included any such thing, or was simply ignoring it.

...

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

...

[rumpel]

7. In his own words: Congressional testimony April 2000 "probable cause"

he may be referring to some new Patriot Act invoked amendment

"probable cause" testimony also at

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=231029&mesg_id=231029