FISA 'modernization" bill - head's up! Page 12

Author	All Replies
jvmorris I Am The Man Who Was Not There. Premium,MVM join:2001-04-03 Reston, VA	reply to manfmmd Re: re: FISA 'modernization" bill - head's up! You are confusing the issue of which President recommended these Judges for elevation to the Federal bench and who subsequently appointed them to the FISA Court, I believe. AmeritecTech is correct with regards to the latter, which is all that he said. -- Regards, Joseph V. Morris
	to forum · permalink · · 2007-08-13 13:24:03 ·
jvmorris I Am The Man Who Was Not There. Premium,MVM join:2001-04-03 Reston, VA	reply to manfmmd My review of the FISA Statute, in some detail, is around here somewhere from either January or February 2006 (maybe December 2005). Look it up. I haven't changed my opinion since that time. -- Regards, Joseph V. Morris
	to forum · permalink · · 2007-08-13 13:27:04 ·
AmeritecTech Change we can believe in, 1922 Premium join:2002-09-06 Houston, TX	reply to manfmmd said by manfmmd : Not at all, as most were appointed by other Presidents: Fisa Court Members: Kollar-Kotelly: Clinton Bates: Bush 43 Benson: Bush 41 Broomfield: Reagan Carr: Clinton Gorton: Bush 41 Walton: Bush 43 Howard: Reagan Kazen: Carter Scullin: Bush 41 Vinson: (can't find who appointed Judge Vinson) Court of Review: Leavy: Reagan Winter: Reagan Selya: Reagan Perhaps, but it was Rehnquist and Roberts that elevated them to FISC. -- "Independent thinkers tend to ALWAYS have someone Not agreeing with them. It's The non-thinkers that ALWAYS come in legions." -John Callari
	to forum · permalink · · 2007-08-13 13:28:52 ·
manfmmd Premium join:2003-01-14 Earth clubs:	reply to jvmorris said by jvmorris : You are confusing the issue of which President recommended these Judges for elevation to the Federal bench and who subsequently appointed them to the FISA Court, I believe. AmeritecTech is correct with regards to the latter, which is all that he said. I'm not saying that at all. It doesn't matter who elevated them or who appointed them. It is clear, since the beginning of record keeping, that judicial decisions are based on interpretation, which is based on political leanings.
	to forum · permalink · · 2007-08-13 13:39:17 ·
jvmorris I Am The Man Who Was Not There. Premium,MVM join:2001-04-03 Reston, VA	Well, I'm glad that's clear to you. Please call up the ghost of Richard M. Nixon and inform him of your deductions. -- Regards, Joseph V. Morris
	to forum · permalink · · 2007-08-13 13:43:50 ·
jvmorris I Am The Man Who Was Not There. Premium,MVM join:2001-04-03 Reston, VA	reply to manfmmd said by manfmmd : . . . There's a lot of talk about "no checks and balances", but there is plenty there, in place. I just think that some people are hyper-sensitive to issues like this. Please identify (citations would be nice) the checks and balances that you see as still being in place under this revision of the FISA Act. Then we can talk about them. -- Regards, Joseph V. Morris
	to forum · permalink · · 2007-08-13 13:48:21 ·
manfmmd Premium join:2003-01-14 Earth clubs:	(2) reports such minimization procedures and any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days prior to the effective date of such minimization procedures, unless the Attorney General determines immediate action is required and promptly notifies the committees of such minimization procedures and the reason for their becoming effective immediately. (b) MINIMIZATION PROCEDURES.—An electronic surveillance authorized under this section may be conducted only in accordance with the Attorney General’s certification and the minimization procedures. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 108(a). (c) SUBMISSION OF CERTIFICATION.—The Attorney General shall promptly transmit under seal to the court established under section 103(a) a copy of the certification under subsection (a)(1). Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless— (1) an application for a court order with respect to the surveillance is made under section 104; or (2) the certification is necessary to determine the legality of the surveillance under section 106(f). From the very .pdf file that spy1 posted. -- If the road to Hell is paved with good intentions, what is the road to Heaven paved with?
	to forum · permalink · · 2007-08-13 14:07:30 ·
manfmmd Premium join:2003-01-14 Earth clubs:	reply to AmeritecTech said by AmeritecTech : said by manfmmd : Not at all, as most were appointed by other Presidents: Fisa Court Members: Kollar-Kotelly: Clinton Bates: Bush 43 Benson: Bush 41 Broomfield: Reagan Carr: Clinton Gorton: Bush 41 Walton: Bush 43 Howard: Reagan Kazen: Carter Scullin: Bush 41 Vinson: (can't find who appointed Judge Vinson) Court of Review: Leavy: Reagan Winter: Reagan Selya: Reagan Perhaps, but it was Rehnquist and Roberts that elevated them to FISC. Yes, because of the expiry dates of the other judges.
	to forum · permalink · · 2007-08-13 14:09:03 ·
AmeritecTech Change we can believe in, 1922 Premium join:2002-09-06 Houston, TX	reply to manfmmd "The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 108(a)." "(2) the certification is necessary to determine the legality of the surveillance under section 106(f)." The Attorney General shall determine if the agencies are complying with the law. He shall then tell the Congress if they're complying with the law. The Congress will then use that to determine...if they're complying with the law. Don't you see the flaw here? No true oversight. If the AG says, "Yes, everything's fine" there's nobody double-checking that. Everything, and I mean everything is contingent on him telling the truth and reporting accurately, something we know that he seems to have a problem with. -- "Independent thinkers tend to ALWAYS have someone Not agreeing with them. It's The non-thinkers that ALWAYS come in legions." -John Callari
	to forum · permalink · · 2007-08-13 14:20:17 ·
manfmmd Premium join:2003-01-14 Earth clubs:	said by AmeritecTech : "The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 108(a)." "(2) the certification is necessary to determine the legality of the surveillance under section 106(f)." The Attorney General shall determine if the agencies are complying with the law. He shall then tell the Congress if they're complying with the law. The Congress will then use that to determine...if they're complying with the law. Don't you see the flaw here? No true oversight. If the AG says, "Yes, everything's fine" there's nobody double-checking that. Everything, and I mean everything is contingent on him telling the truth and reporting accurately, something we know that he seems to have a problem with. Again, with the minimization procedures in place, this shouldn't be a problem. -- If the road to Hell is paved with good intentions, what is the road to Heaven paved with?
	to forum · permalink · · 2007-08-13 14:33:30 ·
jvmorris I Am The Man Who Was Not There. Premium,MVM join:2001-04-03 Reston, VA	reply to spy1 Re: FISA 'modernization" bill - head's up! Ummm, just for reference purposes, I have the passed version of the bill as S.1927, which can be found at »thomas.loc.gov/cgi-bin/query/z?c···927.ENR: . (There's a PL number somewhere, but I don't have it handy.) However, this is a markup of 50 USC 1801 et seq. so you also need to take a look at that to understand what this markup does. For this, I referenced the Findlaw version at »caselaw.lp.findlaw.com/casecode/···801.html , which is dated 19 Jan 2004. Is this the latest revision? I thought other changes were made after that date? There's an unfortunate disconnect between S. 1927 and 50 USC 1801 et seq. (as referenced above) which makes it a bit difficult to understand exactly what changes were made. (I think this is because S.1927 actually references the previous PL sections, not the relevant USC sections.) So, I believe that references to, e.g., Sect 105 in S.1927 would be applicable to 50 USC 1805, and so forth. Just thought I'd throw that in for anyone intersted in doing their own research. -- Regards, Joseph V. Morris
	to forum · permalink · · 2007-08-13 17:49:30 ·
fatness subtle Janitor join:2000-11-17 fishing ·EarthLink Host: Earthlink DSL TekSavvy Forum Feature Requ.. Need Site Help? Rants, Raves, and ..	reply to manfmmd Re: re: FISA 'modernization" bill - head's up! said by manfmmd : I would agree with you, except for, for the past 20 years, people on both sides of the aisle have been complaining about the actions of "judges" because of their 'political' ties back to an administration. I don't have a solution for this, but as long as judges are political appointees, we will have a problem (as we do with the abortion debate). said by manfmmd : It doesn't matter who elevated them or who appointed them. It is clear, since the beginning of record keeping, that judicial decisions are based on interpretation, which is based on political leanings. Why don't you stop injecting these god damn red herrings into this thread. OK? -- Sure, that'll work..
	to forum · permalink · · 2007-08-13 19:25:39 ·
jvmorris I Am The Man Who Was Not There. Premium,MVM join:2001-04-03 Reston, VA 3 edits	reply to manfmmd Oh, okay here you are -- took me a bit of time to find your post to respond. First, there's a definitional issue in the promulgated Act that people need to understand. Actually, there are several definitions that come into play. There's no 'common usage' issue here; these terms are defined by statute for purposes of 50 USC 1801 et seq. Prior to passage of the "Protect America Act of 2007, these were as follows: From 1801(e) (e) "Foreign intelligence information" means - (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against - (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to - (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States. 'foreign power' is defined in 1801(a) as (a) "Foreign power" means - (1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; or (6) an entity that is directed and controlled by a foreign government or governments. Note that 1801(a)(4) and 1801(a)(5) already cover the organizations that we seem primarily concerned with in this discussion. And, from 1801 (f), (f) "Electronic surveillance" means - (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, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. And please note that the subitems of 1801(f) are ors not ands, so the previously existing definition was quite comprehensive. Now, we come to S.1927 and its modification to the definitions of 'electronic surveillance': The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 105 the following: `CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES `Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States. Note that there is nothing in S.1927 that defines 'reasonably believed' nor who is to make such a determination -- absolutely nothing, nor anything about who is permitted to challenge such a designation. Now, exactly what impact does this insertion have on the language previously provided in 50 USC 1801(f)? As I read it (and I think I'm being quite reasonable in this interpretation) it would seem that, if surveillance is 'reasonably believed' to be implemented with the expectation of monitoring communications of an individual outside the United States, it's not electronic surveillance in the context of FISA, i.e, FISA no longer applies. There's no requirement that this presumption actually be true to conduct the surveillance, none whatsoever. It's simply that FISA no longer applies. Well, what does that mean with regards to what statutes do apply? The answer: None, such surveillance regresses to the completely undefined surveillance activities that were conducted prior to FISA's passage in 1978. There isn't any applicable law. All the AG or DNI have to do is say (with a straight face) that they were attempting to surveill an individual outside the USA at the time the interception was made. Well, what happens if they (accidentally, of course) just happen to intercept communications between two individuals in the US or possibly someone in the US and someone outside the US who isn't an 'agent of a foreign power'? Absolutely nothing. They can do whatever they want with such information. They can keep it, they can destroy it, they can act on it (for whatever non-national security purpose that they see fit), they can pass it to any other organization within or without the Government with no penalties -- there's no law that applies. There's no redress; there are no penalties for such abuse. Similarly, the revised statute makes no reference to 'foreign intelligence information'. Anyone outside the US can have their communications monitored as the Government sees fit. Now, why is this essential to the purposes of FISA? Starting to catch on? And, also, why is this provision in a new section 105A, rather than incorporated expressly into 50 USC 1801, where it rightfully belongs? (I'm not through yet; just thought it best to break this into manageable chunks.) -- Regards, Joseph V. Morris
	to forum · permalink · · 2007-08-13 19:37:42 ·
EGeezer Go Bobcats Premium join:2002-08-04 Country! ·Callcentric ·RoadRunner Cable ·AT&T CallVantage 1 edit	reply to manfmmd said by manfmmd : Again, with the minimization procedures in place, this shouldn't be a problem. shouldn't be a problem is the operative phrase here. That's much more applicable than won't be a problem. Of course, a sitting president would never think of claiming executive privilege for his attorney general when trying to avoid disclosure of abuses, political mischief or wrong doing. Hmmm, well, maybe ... -- In memoriam Tommy Makem, Nov. 4, 1932 - Aug. 1, 2007
	to forum · permalink · · 2007-08-13 19:53:13 ·
AmeritecTech Change we can believe in, 1922 Premium join:2002-09-06 Houston, TX	reply to spy1 Re: FISA 'modernization" bill - head's up! Here's the bottom line: The Executive Branch had complained in the 60s that the warrant requirements were too high for foreign intelligence. A rubber stamp court (FISC) was created to clear this stuff in a more expeditious manner when the Foreign Intelligence Surveillance Act was passed. FISC approved practically everything thrown at them, because they understood their purpose: approve everything that doesn't involve surveillance on an American. The Bush administration started submitting surveillance of Americans to FISC, cases with insufficient evidence, and something that should have gone through a regular federal court. FISC started modifying or denying these applications, because that's not what FISC is for. Rather than adhere to the law, the administration started a secret surveillance program which monitored communications of Americans with no oversight. It pledged that it would continue to do so. Now, as a "compromise", it proposes to take away the power of the courts to rubber-stamp foreign intelligence surveillance, the very thing that FISA put in place. There is now no independent oversight, and the courts and the Congress only receive reports from the AG that all systems are go, and that everything is fine, that all laws are being followed (regardless of the truth of that). That's the law that was passed. We turn to a question of motive: were they concerned that they couldn't monitor foreign communications effectively? NO. As always, FISC rubber-stamps requests such as this, and besides, surveillance can take place for up to 21 days before FISC needs to even be notified of surveillance in progress. There is no good reason why FISC is insufficient for approving foreign surveillance. They need to take it out from under the eyes of FISC because they have a wide net that is certainly catching American conversations. Phone-line privacy was smothered with the passage of this law. -- "Independent thinkers tend to ALWAYS have someone Not agreeing with them. It's The non-thinkers that ALWAYS come in legions." -John Callari
	to forum · permalink · · 2007-08-13 20:45:03 ·
TKJunkMail Enjoy the sun Premium join:2002-03-03 Avalon, NJ ·Sprint Mobile Broa.. ·Comcast	said by AmeritecTech : We turn to a question of motive: were they concerned that they couldn't monitor foreign communications effectively? NO. As always, FISC rubber-stamps requests such as this, and besides, surveillance can take place for up to 21 days before FISC needs to even be notified of surveillance in progress. There is no good reason why FISC is insufficient for approving foreign surveillance. Yes, they were worried they couldn't monitor foreign communications effectively. The problem became that the court was so backlogged with requests(remember that NSA has to monitor thousands and thousands of foreign communications) that the judges couldn't keep up with the workload. And a FISC judge said that according to the law the NSA had to get approval. Even if it was after the fact. The intelligence community convinced the House & Senate intelligence committees that the situation was untenable and that they needed to be able to listen in on foreigner communications without FISC approval(which was way to slow and didn't have enough judges to handle the workload). So the Congress agreed. The only sticking point remaining between Dems & Repubs is the part about Americans being on one end of the conversation and not needing court approval. And that is why it only got a 6 month approval. Both sides have to renegotiate the details of what to do when a US citizen is on one end of the conversation. -- -- Internet News My BLOG My Web Page
	to forum · permalink · · 2007-08-13 20:59:19 ·
manfmmd Premium join:2003-01-14 Earth clubs:	reply to EGeezer Re: re: FISA 'modernization" bill - head's up! said by EGeezer : said by manfmmd : Again, with the minimization procedures in place, this shouldn't be a problem. shouldn't be a problem is the operative phrase here. That's much more applicable than won't be a problem. Of course, a sitting president would never think of claiming executive privilege for his attorney general when trying to avoid disclosure of abuses, political mischief or wrong doing. Hmmm, well, maybe ... Until I see an indictment of Alberto Gonzales, it's all hearsay. How much time and money have they spent on this fishing expedition? Wasn't this predicted by the Republicans? I thought Speaker Pelosi said that they weren't going to go on any witch hunts? IMO, sh*t or get off the pot.
	to forum · permalink · · 2007-08-13 21:11:08 ·
manfmmd Premium join:2003-01-14 Earth clubs: 2 edits	reply to jvmorris said by jvmorris : They can keep it, they can destroy it, they can act on it (for whatever non-national security purpose that they see fit), they can pass it to any other organization within or without the Government with no penalties -- there's no law that applies. There's no redress; there are no penalties for such abuse. No they can't. You conveniently glossed over this: "Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against a person who was the target of, or whose communications or activities were subject to, an acquisition authorized pursuant to section 102A, any information obtained or derived from such acquisition, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or so use that information or submit it in evidence, notify such person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information." I see nothing wrong at all with sections 1801(e) and 1801(a). I believe that 1801(a) 1-6 were all included because of lawyers (they love to pick stuff like that apart). I also agree with 1801(f). Why limit the types of electronic surveillance by making the sections dependent on each other (using AND). -- If the road to Hell is paved with good intentions, what is the road to Heaven paved with?
	to forum · permalink · · 2007-08-13 21:27:01 ·
manfmmd Premium join:2003-01-14 Earth clubs:	reply to fatness said by fatness : said by manfmmd : I would agree with you, except for, for the past 20 years, people on both sides of the aisle have been complaining about the actions of "judges" because of their 'political' ties back to an administration. I don't have a solution for this, but as long as judges are political appointees, we will have a problem (as we do with the abortion debate). said by manfmmd : It doesn't matter who elevated them or who appointed them. It is clear, since the beginning of record keeping, that judicial decisions are based on interpretation, which is based on political leanings. Why don't you stop injecting these god damn red herrings into this thread. OK? I would if it wasn't pertinent to the discussion. EVERYONE knows that judges are political appointees. And since there are people that wish to hang their trust on "judges", I was just reminding them.
	to forum · permalink · · 2007-08-13 21:32:13 ·
EGeezer Go Bobcats Premium join:2002-08-04 Country! ·Callcentric ·RoadRunner Cable ·AT&T CallVantage 1 edit	said by manfmmd : EVERYONE knows that judges are political appointees. And since there are people that wish to hang their trust on "judges", I was just reminding them. Ah, you're starting to get it Putting one's head in the sand and ignoring the fact that those comprising the leadership of any branch of government are politicians who want more power and fewer eyes on them only opens the door for those of which you speak. Politicians inhabit all three branches of the government, and having any one of the branches subject to scrutiny by the other two greatly reduces the opportunity for mischief. Maybe some would blindly trust Pelosi, Obama. Romney, Giulani, Edwards, "conservative" or "liberal" judges or any other possible future leader - right, center or left - to not abuse power or privilege, but I don't, and your above statement indicates you're starting to realize what we're talking about. -- In memoriam Tommy Makem, Nov. 4, 1932 - Aug. 1, 2007
	to forum · permalink · · 2007-08-13 23:03:13 ·


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