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'Bout time you showed your face here aftter posting that dog's breakfast of a column.

Glenn Greenwald smacks you down again, as always:

From http://www.salon.com/opinion/greenwald/2007/11/21/klein/index.html

Klein's latest article in Time does nothing more than what Klein and most Beltway "liberal" pundits always do and have been doing for the last twenty years -- namely, warn Democrats that they will lose elections unless they renounce their beliefs and act as much as possible like Republicans on national security issues. The article is entitled "Still Stumbling on National Security" and contains every 1980-2003 cliche about how Democrats better not oppose the big, mean, tough George Bush on war issues or else Rush Limbaugh will attack them and they'll lose. More on that in a moment.

Klein's main complaint is that "Democrats in Congress [] are being foolishly partisan on two key issues: continued funding for the war in Iraq and updating the Foreign Intelligence Surveillance Act (FISA)." On FISA, he claims:

Unfortunately, Speaker Nancy Pelosi quashed the House Intelligence Committee's bipartisan effort and supported a Democratic bill that -- Limbaugh is salivating -- would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only. In the lethal shorthand of political advertising, it would give terrorists the same legal protections as Americans. That is well beyond stupid.

"Well beyond stupid" is a good description for what Klein wrote here. "Factually false" is even better. First, from its inception, FISA did not "protect the rights of U.S. citizens only." Its warrant requirements apply to all "U.S. persons" (see 1801(f)), which includes not only U.S. citizens but also "an alien lawfully admitted [in the U.S.] for permanent residence" (see 1801(i)). From 1978 on, FISA extended its warrant protections to resident aliens.

But Klein's far more pernicious "error" is his Limbaugh-copying claim that the House bill "require[s] the surveillance of every foreign-terrorist target's calls to be approved by the FISA court." It just does not.

The only reason why Congress began considering amendments to FISA in the first place was because a FISA court earlier this year ruled that a warrant was required for foreign-to-foreign calls incidentally routed through the U.S. via fiber optics. Everyone -- from Russ Feingold to the ACLU -- agreed that FISA never intended to require warrants for foreign-to-foreign calls that have nothing to do with U.S. citizens, and thus, none of the bills being considered -- including the bill passed by the House -- requires warrants for such foreign-to-foreign calls. Here is Rep. Rush Holt, a member of the House Intelligence Committee and one of the key architects of the House bill, explaining what the House bill actually does:

* Ensure that the government must have an individualized, particularized court-approved warrant based on probable cause in order to read or listen to the communications of an American citizen. . . .

The RESTORE Act now makes clear that it is the courts -- and not an executive branch political appointee -- who decide whether or not the communications of an American can be seized and searched, and that such seizures and searches must be done pursuant to a court order.

Under the House bill, individualized warrants are required if the U.S. Government wants to eavesdrop on the communications of Americans. Warrants are not required -- as Klein falsely claimed -- for "every foreign-terrorist target's calls."

While the government (in order to prevent abuse) must demonstrate to the FISA court that it is applying its surveillance standards faithfully, the warrant requirement is confined to the class Rep. Holt described. Klein's shrill condemnation of the House FISA bill rests on a complete falsehood (that's not surprising; the last time Klein wrote about FISA, he said that "no actual eavesdropping on conversations should be permitted without a FISA court ruling" and then proceeded to defend a FISA bill which, unbeknownst to him, allowed exactly that).

And then Glenn REALLY gets serious.

You've made a fool of yourself once again, Joe.

Klein:
[S]elective immunity to those telecoms who can provide written proof that they were acting in response to a direct order from the government. That seems fair to me.

Joe, what do you mean by a "direct order"? We're not talking about the military. The usual analog in this context is a warrant. But if you've followed this issue you surely know that the telcos already have immunity if they were issued with a warrant (that wasn't facially invalid); in fact, they are legally required to comply with a warrant.

Whatever these "direct orders" were, we know that Qwest's CEO Nacchio declined to comply on the advice of his lawyers, a move that cost his firm many millions of dollars. I don't see why officials at other telcos who may have broken the criminal law should have amnesty, selective or otherwise. That doesn't seem fair to me at all.

1. The bipartisan bill that was being negotiated House Intelligence Committee members probably would have won a veto-proof majority,

Klein, are you now admitting that you lied when you said that Pelosi submitted her own, substantially different bill for the "bi-partisan" version passed by the Intelligence Committee?

Because here are the facts.

Both the Intelligence and Judiciary Committees Amended the original bill -- the amendments were minor, dealing mostly with overall oversight and compliance issues (stuff like having the courts ensure that its orders were being followed, rather than trusting the DoJ or CIA), and two competing amendments both ensuring that a warrant was obtain any time someone wanted to surveille an American citizen regardless of whether they were identified as a "target".

The bill as submitted by Pelosi included a managers amendment -- all this amendment did was resolve the language differences in the competing amendments cited above, reaffirmed the obvious (stuff like the law couldn't be used to prevent lawful surveillance of Bin Laden), and stating specifically that "illegal aliens" were treated the same as if they were on foreign soil -- none of the protections afforded to American under the bill were to be applied to illegal aliens.

Summaries
Intelligence Committee Version http://intelligence.house.gov/Media/PDFS/ReyesRelease101007.pdf
Judiciary Committee Version http://judiciary.house.gov/newscenter.aspx?A=860

Managers Amendment text http://majorityleader.house.gov/docUploads/FISA-managers-amendment.pdf

2. The current House legislation requires that every foreign terrorist target be passed through the FISA court because that target may potentially communicate with U.S. Citizens or resident aliens

pure unmitigated B!LLSH!T. cite the provision of the house bill that does this.

The bill requires court review ONLY if there is reason to suspect that a targetted person will be calling the US, or if after a targetted person has called the US and is expected to call here again.

Your problem, Joe, is that you think that this bill concerns ONLY foreigners who have been specifically targeted as terrorists. It doesn't.

This bill allows the surveillance of ALL foreign to foreign communications -- it doesn't matter if someone is considered a terrorist or not, the law allows EVERY foreigner to be surveilled. Now, lot of foreigners who aren't terrorists make calls to US citizens -- and the bill makes sure that THOSE calls are not monitored.

I have to take issue with your headline here. Seems like a very tacky attack on the Dems to me.

The major Democratic candidate in the debate (Hillary) favored national security over human rights. Obama has long advocated special operations to address the Pakistani terrorist camps. Despite that, however, you are suggesting that one stupid comment by Bill Richardson, a second-tier candidate, represents the Democrats' foreign policy. Kucinich, Richardson, etc. are second-tier candidates for a reason: their positions are extreme relative to the rest of the country (like tancredo, hunter, etc. on the other side), and they are not skilled enough politicians to overcome that fact.

As for FISA, I agree that the bipartisan bill would be better, but let's wait and see which bill the Democratic Congress puts forth first before we start hammering them for the more partisan bill. If the bipartisan bill prevails; then how exactly would the Democrats have messed things up?

Joe, just curious, but why do you think we need a "middle path" on prosecuting and punishing crimes committed by telcos and Bush administration officials (Scooter Libby)? Why not just enforce the law? Are there any other classes of felons (or potential felons) that you think deserve special treatment?

With regards to the telcos, if we were talking about violations in the immediate aftermath of 9/11 that would be understandable. But we're talking about amnesty for potential crimes committed years later.

Can't even deign to acknowledge Greenwald by name, eh?

In honor-based disputes, that gambit works when you're perceived as the superior.

But sadly, that's not the case here. You've made yourself look churlish, not noble.

Crust: Not only "years later", but also pre-9/11.

Do not forget Joseph Nacchio's recent testimony.

http://news.nationaljournal.com/articles/071102nj1.htm

I'd also like to hear Joe list all the felonies that he thinks shouldn't be prosecuted according to the law, and all the people he believe should be exempt from prosecution, so long as they disagree with the law they are breaking.

However, I won't hold my breath while I wait for him even to acknowledge that we've asked the question.

"but selective immunity to those telecoms who can provide written proof that they were acting in response to a direct order from the government."
How is this anything other than a Get Out of Jail Free card?
The "direct order" from the government is a warrant.
And the compromise floated by Arlen that the telecoms won't have to pay whatever fines but the government will is offensive.
We end up paying to be spyed upon?
Now THAT'S a compromise the Beltway can get behind!

Joe, what do you mean by a "direct order"?

What Joe means is that he is a big fan of totalitarian states, and despises the very idea of 'rule of law'.... because the original FISA act SPECIFICALLY PROHIBITS

§ 1809. Criminal sanctions (a) Prohibited activities A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute

http://www4.law.cornell.edu/uscode/50/usc_sec_50_00001809----000-.html

§ 1810. Civil liability An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover— (a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.

http://www4.law.cornell.edu/uscode/50/usc_sec_50_00001810----000-.html

how much clearer can you get? Congress made it clear that surveillance of US citizens without a warrant is a crime -- and its a crime to allow that surveillance. That was the law -- and while I don't think that anyone would have a problem with providing immunity for what the telecoms did in the immediate aftermath of 9/11, this illegal activity went on for years in complete disregard of the clear meaning and intent of the relevant statutes.

But as a rich white guy, its only poor people, and people of color, who actually have PAY for their crimes.... under KleinLaw people making millions of dollars a year can break the law with utter impunity, and then not merely get protection for their own criminality, but makes sure that the stockholders don't lose a dime.

Its utterly pathetic.

Commenters:

Joe:
Why didn't you link to the bills you describe?
Also, why didn't you name the bills?

By "The bipartisan bill that was being negotiated House Intelligence Committee members", did you mean RESTORE Act of 2007 (Introduced in House)[H.R.3773.IH], or (Reported in House)[H.R.3773.RH]?

I'm assuming that by "The current House legislation" you mean (Engrossed as Agreed to or Passed by House)[H.R.3773.EH].

You don't even include quotes from the bill!
How are we to judge effectively whether the "broad bipartisan agreement on the following principles" are actually reflected in the language of the law?

How shoddy can you get?

Please clarify. Remember, your rhetoric alone on telecom amnesty or "data mining" is insufficient to persuade or edify, given your utter lack of credibility on the subject (with respect to everyone outside of the Village, that is).

Commenters:
Assuming that he does actually refer to (Passed by House)[H.R.3773.EH], judge for yourself whether Joe describes the bill accurately or not.

I'm going to let the most egregious blathering go for the time being, and I'll come back to this after proper analysis of the bill itself.

"Let the games begin"

Oh, and BTW, Joe: it's not a f-ing game, except maybe to people in the out-of-touch, Beltway cocktail party circuit petrie dish that passes as your professional environment.

It would also have taken a middle path on immunity for telecoms--no blanket immunity (as is currently provided in the Senate draft), but selective immunity to those telecoms who can provide written proof that they were acting in response to a direct order from the government. That seems fair to me.

Because everyone knows that "the government" can't be wrong. It's not like they're made up of "people" or anything.

It is essential to pass a bill that combines legitimate national security and civil liberties concerns--but that isn't happening because of blind, stupid partisan politics.

How DARE anyone have an opinion that doesn't involve complete capitulation!

"Latest Column" should be titled "Latest Foolishness."

Stick to matters that you possess some familiarity Joe. On FISA, you have no effin clue and offering more of the "blue pill" is just what our serious president does.

Stop making sh*t up.

As for FISA, I agree that the bipartisan bill would be better,

one rather critical problem... there was no "bi-partisan bill" passed by the Intelligence Committee that was different in any critical way from what Pelosi submitted.

Joe is just making crap up as he goes along...

...and, boy that's not a "what you see is what you get" preview, is it?

Sorry for the extra "Commenters" at the top.

The Democrats are weak on defense because they no lomger want to bankrupt the country for the sake of Bush's reputation.

What about the idiots that got us into the mess in the first place, including Clinton. What makes them strong on defense?

I'm going to let the most egregious blathering go for the time being, and I'll come back to this after proper analysis of the bill itself.

Hey stuart, I'm linking up a storm...and to original sources, no less!
Give me a cookie. :-)

There's no point in reading such a column. It's just Joe maintaining his "centrist" bona fides by spinning bs.

This is why no one but your beltway butt buddies respects you, Joe.

TomInTheSwamp:
Not only "years later", but also pre-9/11.

Yup. But I believe all the amnesty proposals we're talking about are only for crimes committed after 9/11, 2001. Also, I've seen informed speculation that the pre-9/11 violations were less egregious.

"The bill requires court review ONLY if there is reason to suspect that a targetted person will be calling the US, or if after a targetted person has called the US and is expected to call here again."

If it is known that the targeted person "will be calling the US", or, "has called the US and is expected to call here again", then it stands to reason that intelligence-data wise, this is a fish that has ALREADY been landed.

This means that FISA will NEVER be applied to data mining operations!

As for Joe's penchant for trusting the untrustable in respect to the issue of comm companies divulging information as a result of a "direct order", how could one PROVE that they didn't, given this Administrations penchant for lying, and given the equally nefarious conduct of the corporations themselves?

The Scott McClellen revelations are yet another hint that trustworthiness is NOT an attribute that should be applied to ANY of this Administrations' conduct - nor ANY Republican operatives before 2006!

That means, essentially, that every foreign target is subject to review by the FISA court. QED.

uh, no it doesn't Joe. I mean, are you really this dense? That you don't understand what "A REASON" means?

For instance, we can tap the phones of people in Afghanistan who we suspect are involved in anti-Afghan government terrorism with NO WARRANT,...

And not every terrorist plot targets the United States, or has anything to do with the United States -- yet it is in the US interest to surveille anyone we suspect is a terrorist...

We can pass information on to our allies and prevent attacks in say, Saudi Arabia.

We can listen in to suspected terrorists to determine the size and intentions of their network -- unless we have a REASON to suspect they will call the US no warrant is necessary

We can even listen in on calls where people are plotting terrorists attacks on American soil -- and unless and until we HAVE A REASON to think that these plotters will be calling the US, no warrant is needed -- i.e. if we don't think that agents are already in place in the US -- OR IF WE THINK THAT THEIR AGENTS ARE HERE ILLEGALLY there is no need for a warrant.

Keep in mind, Joe, that it is illegal to overstay your VISA. And it is illegal to mistate the purpose of your visit on your VISA application -- so ANY foreign national who comes to the US with the purpose of engaging in terrorism IS NOT SUBJECT TO ANY PROTECTIONS.

p_lukasiak

"Hey stuart, I'm linking up a storm...and to original sources, no less! Give me a cookie. :-)"

Listen, I'd like to take this opportunity to apologize to you for ever comparing your credibility to Joe's. With this latest piece of hackery staring us in the face, I'm just glad that you're still talking to me.

Thanks for your patience.

I just don't get why Joe is more concerned with the thoughts of drug addled, conspiracy theorist radio DJ like Limbaugh than he is with the Constitution. Oh, well--the plight of the punditocracy.

p_luk:
Go for it. EXCELLENT job of sleuthing!

As for me, I guess I'm one of those "civil liberties extremists".

Yes indeed. I WOULD like to keep mine!

Hell, if I call my telephone company to complain about my bill, and I get connected to some wazoo working for TATA in India, who is going to call me back, they can tap me!

All they need is "proof" that they didn't know that wazoo was going to call me back!

What a gaping hole. My civil liberties could be packaged up in one large box, loaded into my car, and driven right through it!

"I just don't get why Joe is more concerned with the thoughts of drug addled, conspiracy theorist radio DJ like Limbaugh than he is with the Constitution"

It's simple. The Constitution doesn't show up at Tim Russert's parties.

Have you ever had a phone? I have. You get a a little book of your rights and responsibilities that looks as though it was cobbled together by 500 lawyers. Based on this evidence, I submit that telecoms employ some lawyers, and I bet they are well paid to understand the Constitution and/or the previous FISA law.
"Selective immunity to those telecoms who can provide written proof that they were acting in response to a direct order from the government. That seems fair to me."
This is so stupid. If the government orders me to break the law, I can choose to, or I cannot.

This has been yet another version of Joe's commenters are smarter than Joe.

And Joe, with regard to your BS about "civil liberties extremists" being the only poeple who oppose giving amnesty to the traitors in the White House and to the Telcos who facilitated their treason, I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!

Now, feel free to call me a Dirty F*cking Hippie.

I know that I'm in good company.

I keep thinking there's a learning curve, hoping. Alas, what's happening is Klein has developed two-faces -- one for print and one for the reality-based community (I made the mistake of re-subscribing for $1.99 because of their willingness to engage here at Swampland).

I can't believe we're back to calling DEMOCRATS stubborn and partisan. When was the transition from spineless and vacillating again? Was there ever a moment that the Dems stood on principle, started playing a little hardball instead of getting their butts kicked, or do this "vacillate" between partisan blowhards and "before it before they were against it", without any in between?

How many compromises do we have to make on these bills before you accept we've made an effort? When are you going to require Republicans to compromise before you think they're partisan? How many times more do the Republicans have to filibuster bills than any Congress in history before you think they're obstructionist? How many elections geared at revving up the base does it take before you think the GOP is extreme? How many elections do we have to lose sacrificing our principles for your approval before you realize our party's central strategy of appealing to the center?

Still waiting on the column in which Joe Klein laments the lack of willingness on the Republican side to compromise.

what kills me is that Joe doesn't have the first clue about what the US is already doing legally to collect intelligence on terrorist threats.

We're not just listening to people that we're identified as "terrorist. We're 'listening' (electronically) to probably everyone we can to IDENTIFY potential terrorists for closer scrutiny. And we can spy on these person, the vast majority of whom are not terrorists, as long as we have no reason to think that they will be calling the US.

What this bill does is prevent the government from snooping on phone calls made to US citizens, because 99.9999% of the communications that we "listen' to have nothing to do with terrorism. In other words, if we hear someone in Marseilles say that their daughter now lives in Atlanta. ya gotta get a warrant to keep listening to them (and follow minimization procedures -- it should be noted that the courts can usually be relied upon to be very liberal about handing out warrants because the minimization procedures designed to protect the rights of Americans are in place. )

I've got to say that p_lukasiak is coming off as the more well informed source on FISA that Joe Kline here.

Perhpas it'd be a little more worthwhile for Joe to let p_lukasiak start up a future blog post with the facts currant status of FISA and then Joe can read though those and fill in his thoughts and opinions afterwards.

And who says that to cover thier tracks, the CEOs of these companies might communicate with their Republican supporters through the RNC comm network!

Yes, ain't those Republicans just OOZING trustworthiness these days...

Joe is still smoking the good stuff I see.

Government has no right to snoop on us for anything.

That is so 1984 Orwell.

Hell, if I call my telephone company to complain about my bill, and I get connected to some wazoo working for TATA in India, who is going to call me back, they can tap me!

All they need is "proof" that they didn't know that wazoo was going to call me back!

actually, they can't tap YOU ever without a warrant.
And they can't tap a phone center that is overseas that does customer service for US companies without a warrant. The frequency of calls to and from America would constitute "a reason" to suspect that there will be additional such calls.

"In other words, if we hear someone in Marseilles say that their daughter now lives in Atlanta. ya gotta get a warrant to keep listening to them"

The flipside of this is, if you DON'T hear someone say that their daughter has moved to Atlanta, you are free to continue to tap those communications!

AND, it would of course, be easy for a Republican operative to come up with some sort of documentation showing they DIDN'T know, even if they did!

A GAPING hole!

"How many compromises do we have to make on these bills before you accept we've made an effort? When are you going to require Republicans to compromise before you think they're partisan? How many times more do the Republicans have to filibuster bills than any Congress in history before you think they're obstructionist?"

Asking a member of the centrist cult to do that is like asking a Christian fundamentalist to stop saying praise the lord every second sentence. They have their preprogrammed script and they are going to follow it because they are "centrists," and that is all that matters.

p_lukasiak is coming off as the more well informed source on FISA that Joe Kline here.

Not very diffucult actually. I think the main problem Joe has isn't that he's occasionally wrong. It's that when he is, he insists on continuing to dig - much to the amusment of his critics and the dismay of his employer.

Probably right p_luk, but I can just imagine how these Carl Rove knockoffs could work to figure out a way to get off the hook for data mining. I think the one below is probably more appropriate.

I just don't like the slippery slope. I do know freinds from Vietnam and Nigeria...

No to wiretapping!

As Democrats we need to stand up and demand that all wiretapping cease.

This is why we need a President Clinton and more Democrats in Congress so we can blast the obstructionist barricade of the republicans that has so far stifled our attempts at reform!

Dear Joe,

Please, please stop. My God, man, have you no shame? Can't you even get the facts straight before uttering your contemptible opinions?

Joe, if you wish to live in a country where an unelected petty tyrant can order wiretaps on your phones without any court supervision at all, there are a lot of alternatives. I personally prefer to return the U.S. to its pre-petty tyrant condition.

From: http://alternet.org/columnists/story/31330#comments

"People like me who favor this [warrantless NSA] program don't yet know enough about it yet," [Joe Klein] says, "Those opposed to it know even less -- and certainly less than I do."

Want to try again, Joe? There's ample evidence to the contrary right here.

I'm still trying to figure out what a "civil liberties extremist" is.

My guess is that it's someone who takes the Fourth Amendment and the laws of this nation seriously.

You are a total, total putz, Joe.

Have a drink.

A "civil liberties extremist" is someone who believes in the rule of law.

Ordinarily, we'd be trashing Joe for his truly mindless drivel cancerning what the Dems are doing about Iraq.

But his FISA comments are so monumentally idiotic, he's pretty much getting a pass on his Iraq nonsense.

I mean, the Iraq stuff is really, really, really, Really, REALLY lame. And his FISA stuff blew it right out of the water -- I keep looking for the right description, and nothing really describes how dumb that stuff was. The best I can come up with is

TRANSCENDENTALLY STUPID

because it literally exists outside the normal boundaries of "stupidity" into multiple universes and dimensions of stupidity.

Joe.

I hear Rush needs a shoe shiner, send your resume'. Those of us who are "extreeme" in our commitment to the constitution take the 4th quite seriously.

Keep taking thos bong hits.

bystander: Barry Goldwater, apparently.

Joe simply believes that prisons and jails are for the kids w/ joints in their socks or evil shop lifters who are destroying our country. Certainly they are not for anyone whom Joke might find at a cocktail party. Then again Joke might just be driven by fear, Joke is on record as believing pizza delivery people pose a great threat to this nation, and as we live in a nation of pizza, this has got to be extremely scary for someone like Joke.

Devin, I'm pretty sure that the bong hit taking community values the 4th highly. Keep smoking that crack!

Joe, if I can get someone from "the government" to give me a "direct order" to shoot you in the face do I have immunity to do so? (Please say yes...)

Greenwald responds to Klein's "response" and in particular Klein's notion of "direct orders from the government":

Seriously, in what country does Joe Klein live? Can someone please explain to him that in the United States, the President doesn't have the power to give "direct orders" to violate the law? And what kind of person who isn't in the military runs around talking about "direct orders" from the American President at all? That isn't how our country works. Presidents obviously don't have the power to give "direct orders" to anyone to break the law, let alone civilians and private companies. Why does that even need to be explained?

Joe wrote:

"That means, essentially, that every foreign target is subject to review by the FISA court"

Well, let's see here, what does the law in question (RESTORE Act of 2007 (Engrossed as Agreed to or Passed by House)[H.R.3773.EH]) actually say about foreign targets?

First we have here a section (Section 2) that specifically states the opposite of what Joe contends.

It says in perfect clarity (hence the word "clarification") that a FISA court order is not required to spy on non-US people, regardless of whether their traffic is routed through US networks or not.
It's crystal f-ing clear:

SEC. 2. CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES PERSONS OUTSIDE THE UNITED STATES.
Section 105A of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended to read as follows:
Sec. 105A.
(a) Foreign to Foreign Communications-
`(1) IN GENERAL- Notwithstanding any other provision of this Act, a court order is not required for electronic surveillance directed at the acquisition of the contents of any communication between persons that are not known to be United States persons and are reasonably believed to be located outside the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

But before we wipe our hands of the matter, there is that phrase in there "Notwithstanding any other provision of this Act", and then this following section:

(b) Communications of Non-United States Persons Outside of the United States- Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to--

`(1) an order approved in accordance with section 105 or 105B; or

`(2) an emergency authorization in accordance with section 105 or 105C.'.

So basically by stating "Notwithstanding any other provision of this Act", the law is making clear that anything else it has to say solely refers to that which is other than "Foreign to Foreign Communications".
Phew! That means that the first paragraph still stands as the only directive having to do with spying on foreign communications passing through US wires (or non-US wires, for that matter)!

But what about the rest of this "(b)" section? Does it muddy the waters? What's the difference between "Foreign to Foreign" (in the previous section) and "Communications of Non-United States Persons Outside of the United States", exactly? Why have this section at all?

Well, the answers to these questions lies in those two named parts (1) and (2).

As we shall see, these two situations are not exceptions to the first rule--they actually are there to spell out that is now lawful and procedurally easy to spy on foreign communications with United States persons!

Here's the next section:

ADDITIONAL AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED STATES WHO MAY BE COMMUNICATING WITH PERSONS INSIDE THE UNITED STATES

`Sec. 105B. (a) In General- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly apply to a judge of the court established under section 103(a) for an ex parte order, or the extension of an order, authorizing for a period of up to one year the acquisition of communications of persons that are reasonably believed to be located outside the United States and not United States persons for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting those persons.

So, instead of even requiring warrants for spying on foreign-to-US-citizen stuff on a phone call-by-phone call, or email-by-email basis (as Joe seems to imply with his silly faux-gotcha "every foreign target is subject to review by the FISA court"), the law says that all communications can be intercepted with a single court judgment for a year! And this spying can be extended by the secret FISA court year after year indefinitely.

And, as if that wouldn't be enough for people who think that it's necessary to relax Fourth Amendment standards, we get this "emergency provision":

SEC. 4. EMERGENCY AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED STATES WHO MAY BE COMMUNICATING WITH PERSONS INSIDE THE UNITED STATES.

`Sec. 105C. (a) Application After Emergency Authorization- As soon as is practicable, but not more than 7 days after the Director of National Intelligence and the Attorney General authorize an acquisition under this section, an application for an order authorizing the acquisition in accordance with section 105B shall be submitted to the judge referred to in subsection (b)(2) of this section for approval of the acquisition in accordance with section 105B.

`(b) Emergency Authorization- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly authorize the emergency acquisition of foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) for a period of not more than 45 days if--

`(1) the Director of National Intelligence and the Attorney General jointly determine that--

`(A) an emergency situation exists with respect to an authorization for an acquisition under section 105B before an order approving the acquisition under such section can with due diligence be obtained;

This quite clearly spells out that the NSA (or whichever government actors want to spy on foreign to US persons) doesn't even have to get that year-long court order before they start spying!
They have a week to submit an application to the court, unless they decide that it's an emergency--in which case they can wait a month and a half after they've already begun intercepting phone calls.

Again, I'll quote Joe:
"That means, essentially, that every foreign target is subject to review by the FISA court"

What the hell is Joe talking about? Did he even read the law?

...and again here's Joe:

"The current House legislation requires that every foreign terrorist target be passed through the FISA court because that target may potentially communicate with U.S. Citizens or resident aliens. It thereby, as I reported, obliquely gives foreign terrorists the same procedures as American citizens, if not the same rights..."

The law quite clearly says no such thing!
Where did Joe get this idea? Again, did he read the f-ing thing?

"This will be very easily twisted by Republicans..."

What a bizarre thing to say...a more accurate remark would be to say that the law might be very easily "twisted" by an administration interested in acting without warrants, since they can simply tell the court ex post facto that everything was an emergency!

...unless, of course, by "twisted" he means dishonestly rephrased into something like "...every foreign target is subject to review by the FISA court..."

Is that the basis for Joe's seeming non-sequiteur--that because Joe can lie about what the bill actually enacts into law, so can Republicans?

Without even going into the merits (or lack thereof) of Joe's "arguments" against "partisanship" or "civil liberties extremists", he's just dead, flat wrong about what H.R.3773.EH actually says and does.

None of this is intended as an endorsement of the bill, BTW. It's just that we can't even have an intelligent discussion without adequate reporting on it.

Joe: read the bill before you write about it. Please.

And, as always, Joe, would it kill you to mention that warrants can be obtained retroactively? That is, after the surveillance?

Mr. Klein,

Your column possesses the unimpeachable logic, morality and courage characteristic of your articles dating back to 2003 opposing the Iraq war.

Three somewhat tangential comments.

First, the reason there are civil penalties associated with illegal wiretapping by the telecoms is in order to give both an incentive and a justification for not complying with an illegal "order" from "the government." The idea is that when an administration says "Tap Martin Luther King," the provider can reply "No, not without a warrant. Otherwise I'll get sued." There is no point in having the civil penalties at all for installing an illegal tap if the penalties are waived when the provider actually does implement an illegal tap. And, of course, the presence of civil penalties shows that a phone company need not comply with an "order" as Qwest did not. So these "orders" aren't binding they aren't legal, and the telco is liable for breaking the law when it follows those "orders." (and didn't that whole taking orders thing go out with Nurenberg?)

Second, it's very important to remember why the Church commission put these safeguards in place. It wasn't some kinda crazy partisanship or radical reading of the constitution. The motivation for the restrtiction was that everybody abused these powers. One reason Nixon was so ticked off at getting nailed for tapping people for political reasons was that everybody did it, Kennedy, Johnson, and, of course, J Edgar Hoover. If you give a government the ability to spy on its enemies, it will do so, as night follows day. The Founders knew this; that's why the fourth amendment is there.

Third, this has nothing to do with terrorism and it didn't and couldn't work under this administration. The program started before 9/11. It wasn't a response to it. And having it in place didn't stop 9/11 from happening. That's because the administration doesn't and didn't believe in danger from non-state actors. Even though the only successful terrorist attack was conducted by a stateless group, that group has been allowed ot flourish while the administration pursued a state actor that did not parcipate in terrorism. The whole TERRA business is a canard.

It's appalling that Joe buys that trope, and repeats it. They're not spying on suspected terrorists. They're data mining everyone. And they can change their keywords from "plastique" and "fuses" to "whales" and "dolphins" any tiime they want. Without oversight.

You have to love Joe's bang-up finish to his column:

As Dodd said, when the President takes the oath of office, he (or she)
promises two things: to protect the Constitution and to protect the
nation against enemies, foreign and domestic. If the Democrats can't
find the proper balance between those two, they simply will not win
the presidency.

In the first place, there's no such thing in the President's oath of office, which in its entirety goes like this:

"I do solemnly swear (or affirm) that I will faithfully execute the
office of President of the United States, and will to the best of my
ability, preserve, protect and defend the Constitution of the United
States."

It's in Article II, Section I of the U.S. Constitution. You can look it up. You know, Joe, research. Stuck on stage with a gotcha question, Dodd didn't have time to check back. I guess some big shot professional pundits are too pressed for time, too. (It's not as if it were an important issue, like, say, whether or not Hillary cackles.)

We have been softened up for accepting the right-wing Leader Of The Hour as a military dictator by the constant inflation of "Commander-in-Chief" from the legitimate role the President plays over the Armed Forces, into "our Commander-in-Chief". (Perhaps this is the source of Joe's peculiar confidence that any order given by "the government" must automatically be presumed legal, even when you know it blatantly violates the statutes. It's that sense that the telecoms are, properly speaking, a part of the Armed Forces.)

Caught up in this fuzzy militarization ethos, Joe has naturally confused the President's oath of office with the oath taken by members of the armed forces, which does promise to defend "against all enemies, foreign and domestic."

On that basis, Joe assures us that we have to carefully balance defense of mere Constitutional rights with defense of the country "against all enemies..."

Trouble is, he's even forgotten how that oath goes. Because what soldiers promise to defend is not "the country". It's "the Constitution".

They're obviously all a pack of weak-kneed liberal hippies and, in Joe's words, "civil liberties extremists." Those fool soldiers, eh, Joe? No concept whatsoever of the proper balance their patriotism requires of them.

Joe, you have no shame whatsoever.
And just like our President, you will never, ever, admit to making a mistake.
And that is why you have no credibility whatsoever.
Whatever you write from this day forward is a waste of bandwidth.

1) Joe Klein is a liar

2) Joe Klein lied about being the "Primary Colors" author.

3) Joe Klein lied when he said

"As I was saying: From Brother Lukasiak...

The bill requires court review ONLY if there is reason to suspect that a targetted person will be calling the US, or if after a targeted person has called the US and is expected to call here again.

That means, essentially, that every foreign target is subject to review by the FISA court. QED."

- That does not mean what Joe claims and it's 100 percent obvious. If it's foreign to foreign FISA would not apply and he damn well knows it. Terrorists do not solely communicate with people in the U.S. It's an absolutely absurd argument on it's face. He's a worthless whore of a liar.

4) Joe Klein will lie to Time magazine readers again

5) Circle of Fifths - Joe Klein is a liar which takes me back to point 1

"[S]elective immunity to those telecoms who can provide written proof that they were acting in response to a direct order from the government. That seems fair to me."

Hmm. It didn't seem all that fair to the panel of judges at Nuremberg.

Posted by stuart_zechman | November 21, 2007 2:40 PM

Posted by pt bridgeport | November 21, 2007 3:21 PM

...and the "original source" hits just keep on comin'!

I think it's time to start using "Anonymous" again, Joe.

One more observation:

So Greenwald dissects your original column on legal grounds, and you respond by not mentioning him by name and shifting to a defense based on realpolitik grounds and "what seems fair"? Then you lamely seek to throw him in with the "lawyers" and civil liberty "extremists."

"That seems fair to me."

RE "direct order from the government"

Phone companies aren't supposed to hand over private records without a WARRANT.

Is isn't a matter of an "order" from any government official.

If courts find that phone companies followed the law, the judgement will be in their favor. If the courts find they broke the law, then they will have to pay damages, as they should.

If anything resembling "fairness" were involved here, there would be "consequences" for the obvious liar.

Stupid stupid stupid stupid stupid stupid Joe!

You deserve an unpaid vacation for the stupidity you have written.

Why don't you do us all a favor and hire p_lukasiak to take over for you so we can have some credible and appropriate posts.

For shame Joe!
For shame!

I don't understand what Mr. Klein means when he says "direct order". The President can say "I order you to turn over your records to me" to telcos and that's perfectly legal? Then what are warrants for?

People are willing to "listen to the arguments" and are doing so from sources more reputable (and less beholden to right-wing authoritarianism) than Mr. Klein. That's why you're on the losing side of this debate, Joe.

The government just called and ordered me to call you "A Clueless Putz," Joe. I didn't want to do it, but you know as well as I do that as an ordinary citizen of the United States I have no free will.

Needless to say, this FISA post reflects poorly on Joe, who has now conclusively and irrefutably demonstrated (i) his categorical incompetence as a journalist; (ii) an astonishing lack of personal integrity -- the lack of intellectual honesty in this FISA post is just mind-boggling! and (iii) horrible political judgment.

But this all reflects poorly on Time magazine as well. Do they have editors at Time? Did it not occur to editors at Time to do the most elementary research into the subject matter of Joe's article before waving it into print?

Joe has been writing about FISA for *months* without troubling himself to acquire the most basic familiarity with the subject matter. These aren't close calls -- the guy plainly doesn't have any idea what he's talking about. Joe's article is a patchwork of crude, basic errors about the issues and legislative proposals under discussion. It's just amazing that Time lets this stuff into ff is allowed into print.

That Joe parades around as a serious journalist is, of course, a total joke. But why does Time allow this pathetic routine to continue? Why does Time let Joe disgrace himself and the magazine in this way?

Posted by p_lukasiak
November 21, 2007 3:47 PM

...and the "original source" hits just keep on comin'!

...do you think that Joe actually did read the bill?

hehehe...just wandered over to read JokeLine's latest pile of fetid, ill-reasoned garbage that passes for good reporting at Time and it looks like I can't add much to the fun.

I do have a suggestion though, Joe. Stock up on rectal repair kits. They are cheaper in bulk and you seem to be in the habit of getting your rectum ripped to shreds by your readers on a near daily basis.

...do you think that Joe actually did read the bill?

oh, absolutely...

Off Topic...
Has the tooth fairy been calling in sick the last few days? I'm starting to get worried...and I don't like the looks of what is now growing under my pillow.

p_l

Did Joe READ the bill

I think Joe should have staff for reading bills and fact checking, actually.

But is kinda surprising, as eric points out above, that he writes about this issue so frequently, with so little acquaintance with the source material.

It just shows that what this is really about is what the Sally Quinn salon thinks--at least at the outset.

Josh did get the USAttorneys story picked up. And by pointing out these factual errors in the republican/Klein/Hiatt story (as the NYT has been pretty consistently doing) we may be able to shift the narrative.

Joe, do you hear that? Factual errors. Documented factual errors. At least as egregious as Novak going with an unconfirmed, third hand story.

(Note, observer, what is considered beyond the pale. Not getting something completely wrong factually is okay, but not having two sources on a smear is criminal.)

Sorry p_lukasiak, your streak has run out.

pt bridgeport gets this thread's gold star for his comment @ 3:21 PM.

Everyone else, epsecially p_luk, seems to have this in control.

I just want to take one thing to task:

civil liberties extremists?! The hell? What the hell are "civil liberties extremists"?! Anyone else find this term a bit absurd in and of itself?

What the hell are "civil liberties extremists?

You know, Thomas Jefferson, George Washington, Ben Franklin, Alexander Hamilton - damn troublemakers if you ask me!

So I am a civil liberties extremists? I thought I was an American?

Thanks Joe the fascist. Please hand me your talking papers on your way out.

Joe, do you hear that? Factual errors. Documented factual errors. At least as egregious as Novak going with an unconfirmed, third hand story.

Jay, its not merely that Joe "gets things wrong" ... at least there is an explanation for HOW he could get what the RESTORE Act says so wrong (he listens to, and believes Limbaugh woulde explain it)

But Joe just makes stuff up, too. I mean, where did the whole "Speaker Nancy Pelosi quashed the House Intelligence Committee's bipartisan effort and supported a Democratic bill" stuff come from? The GOP offered only two amendments to the bill in the Intelligence Committee -- one making the changes permanent, the other offering full telecom immunity, and both were rejected. If the GOP had a problem with the actual provisions and protections in the bill, they sure didn't bother to mention any of them.

(also note Joe's complete lack of regard for Constitutional protections -- there is a reason why these kinds of bills go to BOTH intelligence and judiciary -- it the Judiciary Committee that reviews the legislation to ensure that it does respect the Constitution. Joe's disregard for the importance of the role the Judiciary Committee plays is telling, wouldn't you say?)

What Klein is thinking if he bothers to read this comment thread:

"Shut up all you guys named Vinny in an efficiency apartment in the Bronx! I have credentials!!!"

This whole thing captures the Beltway mentality perfectly.

1) Have little knowledge of, or interest in, the topic you are discussing. Your primary information comes from informal contacts with other people who are a lot like you, and know no more about the subject than you do.

2) Anyone who disagrees with Beltway conventional wisdom is an "extremist." (ad hominem) We've seen this over and over again from Joe, in particular.

3) If something is "bipartisan," it is correct and right. Thus, the invasion of Iraq was approved with a bipartisan vote, therefore it is right, QED. Similarly, slavery, anti-semitism, denying women suffrage etc were all correct and right because they were approved by overwhelming bipartisan majorities of Congress. QED. (Appeal to popularity/appeal to authority/bandwagon fallacy)

I wonder how many opinions Joe has that run counter to bipartisan wisdom. We'll likely never know, because Joe doesn't have the guts to say.

4) Electoral politics is everything. Democrats, but not Republicans, must do whatever seems electorally expedient at the time, or they will be attacked for being tone deaf and "extremist." When they adopt this advice, they are attacked for "standing for nothing," and "doing anything to win."

I actually defended this witless buffoon the other day. Shame on me.

I left out,

5) Never admit when you're wrong. Instead, ignore the whole thing until it goes away, but cling to the same opinions and attitudes, anyway.

Wired.com's Ryan Singel weighs in with Time's Columnist Joe Klein Butchers Wiretapping Debate

http://blog.wired.com/27bstroke6/2007/11/times-columnist.html

key quote:

Time ought to stop Klein from writing about any substantive topic, especially FISA.

Because when it comes to these topics, Klein is well beyond stupid. He's dangerous.

immunity to those [telecoms] who can provide written proof that they were acting in response to a direct order from the government. That seems fair to me.

So for Joe Klein, those telecoms should be off the hook, because they were *just following orders*?!?!

Let me repeat that, because I find it astounding: Joe KLEIN thinks it's FAIR, because THEY WERE JUST FOLLOWING ORDERS.

My God, Joe.

Is there any principle or value you wouldn't abandon, if holding it meant you'd lose your place in the Beltway scene? If it meant you had to change your name to Joe Cohn and denounce the Enemy George Soros every week, would you hesitate, even for five minutes, before doing so? Take a good, long look at your above statement, Joe, and it's 100% acceptance of the whims of those in power, and you might start to realize what you've become.

It is most certainly NOT fair for telecom companies to illegally eavesdrop on private communications involving persons within the U.S. and then be immunized for it because of a non-warrant "direct order" from an agency or instrumentality of the federal government that wasn't reviewed by an independent magistrate. The rule of law should apply; courts can determine liability.

Mr. Klein directly lies in his summary of the various FISA bills under consideration. Foreign-foreign communications are completely untouched by FISA - warrants are not required now and wouldn't be under any bill under consideration. It is not that complicated and I'm sure Mr. Klein could comprehend it if he tried. Depending on the statutory language summarized by others above, only communications involving persons within the U.S. would get FISA protection and require warrants.

Why does Mr. Klein lie? This is the more interesting question. He will apparently lie even if it means horrendous embarrassment, like this column.

Senator Dodd accurately said at the debate that the oath he took as a reservist included the language he cited. Mr. Klein was in error for transposing the Presidential oath for the one taken by active military officers. The clear error doesn;t disprove his point, but it does make him look ridiculous.

Mr. Klein slimes all over the rule of law, journalistic accuracy, the ability to read and understand English as well as the Constitutional oath in this drivel-like column.

We seem to be back to the old question:

How many Joe Kleins does it take to screw in a light-bulb?

Answer: three, one to drop the thing, another to step on it, and a third to blame the Democrats.

Looks to me like Ryan Siegel got it wrong in the post p_lukasiak links to in his 6:36 PM comment.

Siegel writes:

First of all, neither bill has anything to do how the nation's intelligence services wiretap outside the country. In that case, no warrants are needed and no court oversight is involved. All that has to happen is the spooks largely can't specifically target an American inside the United States, and communications that involve anyone inside the United States, have to be minimized (e.g. remove their names) unless there's good reason not to.

From the stuart_zechman comment @ 2:40 PM we know the text reads:

PERSONS OUTSIDE THE UNITED STATES.
Section 105A of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended to read as follows:
Sec. 105A.
(a) Foreign to Foreign Communications-
`(1) IN GENERAL- Notwithstanding any other provision of this Act, a court order is not required for electronic surveillance directed at the acquisition of the contents of any communication between persons that are not known to be United States persons and are reasonably believed to be located outside the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

Nonetheless Siegel makes some good points at the close of his post.

You guys have blown Joe into next week!

WHAT is he gonna do till we catch up again?

Tick, tick, tick, TICK, ...

Looks to me like Ryan Siegel got it wrong

yeah, I thought that too... from the judiciary committee announcement of RESTORE passage...

The RESTORE Act passed with three amendments: Jackson-Lee (TX): An amendment to clarify the bill's language and prevent "reverse targeting" by requiring the Administration to obtain a regular FISA warrant whenever a “significant purpose of an acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States” rather than waiting until said person formally becomes a target.

and the Intelligence committee announcement

The Committee approved three amendments: Congresswoman Jan Schakowsky of Illinois – The Schakowsky amendment requires that the FISA Court approve guidelines to ensure that an individual FISA Court Order is sought when “the significant purpose of an acquisition is to acquire the communications of a specific United States person reasonably believed to be located in the United States.”

then there is the text of the "Managers Amendment" (Managers amendments are used to 'fix' noncontroversial problems in bills, language clarity, statements of intent, etc.) which includes a section that seems to be an effort to resolve the language of the two amendments cited above.

(I have the feeling that there was a problem with the use of the word 'target' -- it means two different things depending upon the agency doing the surveillance. In the Justice Department, a "target" is someone who has been specifically identified as someone suspected of a crime, in the Intelligence community, a 'target' is simply a person of interest.)

My reading of Singel is that he thinks that the only time you need a warrant is when you are 'targetting' someone in the US in the accusatory sense. That is clearly not the case here....

And, Joe. In addition to Glenn Greenwald, before you go running your keyboard with the sweet whisperings of some insider in your ear (leading you astray), you might want to check in with the folks over at FireDogLake. Like this post: FISA and the myth of the ticking time bomb.

In short, Joe, you've been pwn3d.

I give Joe credit for letting the games begin. But why on earth has no one, unless I missed it, come to his defense here. Doesn't Russert or Tweety read this blog?

That's what I so love about these internets. People can call out lazy and/or dishonest columnists on their bullshit while it's still fresh.

CMike:

"Looks to me like Ryan Siegel got it wrong"

Well...Mr. Siegel got it half right, which is 100% more right than Joe.

"...neither bill has anything to do how the nation's intelligence services wiretap outside the country. In that case, no warrants are needed and no court oversight is involved."

The first sentence is partially correct.
The second sentence is entirely correct, which refutes Joe's assertions exactly.

As you correctly quoted from the statute, the House's passed version of the new FISA bill amends the original to explicitly state something that was obvious to begin with, i.e. that the FISA statute has nothing to do with "how the nation's intelligence services wiretap outside the country" (as Ryan Siegel puts it).

The statute's authors were addressing the pretext upon which this whole issue has been dishonestly based: that Foreign-to-Foreign communications routed through US networks might possibly be construed by a psychotically hostile court to be "intra-US". That there exists this potential kernal of truth has been exploited shamelessly by useful idiots/apologists and rank propagandists/administration officials to justify legislation which appears to be intended to provide amnesty for ex post facto lawbreaking.

It is becoming more and more apparent, however, that lawbreaking in the name of "protecting the country after 9/11" is something that Beltway Media Stars like Joe feel totally comfortable exonerating (when "disappearing" doesn't work). To them, there is no downside to the whole system of spying on the entire population of the United States. To these folks, it must just feel like Cisco, IBM and the DOD/NSA have teamed up to provide a nice, warm, snuggly blanket for them to sleep with at night.

In the minds of the Villagers, it seems, they imagine that the well-educated, professional people they know or with whom they are acquainted personally act as caretakers of vast underground systems of "plot-foiling" computer-y type machinery, inspiring comfort in their terrified souls ("We commute to the next Ground-Zero!")