Thank you for putting into words specifics that would bring clarity to the issues at hand, especially the dialogue about the AT&T letter and the Verizon letter along with the suggestion of a timeline overlay of SWIFT and the role of McConnell’s firm.

Thank you both.

Specter locked in the fact that the letters going out were not going out under any statutory provision or authorization. Comey would have been all too aware of the safe harbor provisions and he knew the import of his answer, as did Specter, which is why Specter went back and locked that answer down. So AT&T’s not under oath letter directly contravenes the under oath testimony of the ex-Deputy AG. Gee, think that might need to be cleared up? Because it’s pretty clear – although it wasn’t locked down in the same way – that Comey was also saying that the post-clean up program also was not getting safe harbor qualifying letters.

It would be interesting to see a time line with the SWIFT program timeline. At a certain point, the recipients of the SWIFT program administrative warrants demanded the “outside” auditing, which Intel Czar McConnell’s old firm provided. I’m wondering if the President’s letters to the telecoms set up a non-statutorily authorize administrative basket warrant process with lots of hand offs to “designees” and if part of the reworking to put better audits and firewalls on the TSP involved using McConnell’s firm for the domestic spying program too? That would make for an “interesting” situation.

In any event, the way the safe harbor provision (2511a2ii) works within FISA and 2518(7) appears to be like this (and this is just my take, ymmv) – there are basically two sets of instances where wiretapping can be done without a warrant. First, there is the “emergency” type of wiretaps, done without an order initially, but where an order is contemplated (either under regular criminal law or FISA) because, fore example, the communications involve non-agents of foreign powers and/or Americans on American soil or the like.

Second, there is the foreign power to foreign power situation of 1802(a)(1)(A)(i), “ … the electronic surveillance is solely directed at (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers…” In this situation, the not only is the AG not required to get an order or warrant, but arguably the FISC has no jurisdiction to grant an order. Also in this situation, though, there is supposed to be “no substantial likelihood” that the interceptions will acquire communications of a US person and the AG is supposed to employ minimization procedures that meet the FISA definitions of minimization procedures.

This type of “no order/warrant – AG certification only” interception is to be conducted only in accordance with an AG certification (no designees – although the FISA definition of AG allows a couple of other people to act as well) and the AG was required to make reports about this kind of no-order/warrant surveillance to the House and Senate Intelligence committees on a semi-annual basis.

So basically what the safe harbor provision and 2518(7) do, working together and with the other provisions, is to say that in the EMERGENCY order situation (2518(7(a) sets forth the requirement of an emergency situation existing), then designees or state officers as well may get immediate wiretap access, pending order/warrant application. But 2518(7) doesn’t allow for any “designee” status where there is no order application in the offing. Not only that, but 2518(7) requires that,

In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application

With respect to “teh program” there were no orders in the offing and there was no compliance with the requirements on inventories where those orders were not subsequently issued so there is no application of 2518(7). There was also no AG (or FISA allowed substitute) involvement during the lapse period to meet the FISA no warrant requirements for solely foreign power to foreign power communications, but there also does not seem to have ever been a soley “foreign power to foreign power” program at issue for which a certification could issue and the under oath testimony of the Deputy AG is that there was no certification given that qualified as the AG certification contemplated by the 2511 safe harbor provisions. In addition, there were never any reports made to the full Senate and House Committees, as required by statute, until – well, maybe never, but certainly not until the last month or so when the House Committee finally received some info (although maybe not all info).

The telecoms are charged with an understanding of the safe harbor provisions and their application to pending orders with respect to domestic interceptions, as well as the need for specific AG certifications based there being no substantial likelihood of intercepting US person communications and statutory compliance and minimization procedures for no warrant/order situations involving domestic interceptions.

Loved the rubber stamps.

If Congress rolls over for this sh*t, then maybe it’s time start a fundraiser to deliver doggie leashes to every member of the House and Senate. Because if all they’re going to do on FISA is sit up, roll over, and bark on command, they need the right accessories.

(Don’t know whether you recall when FDL organized delivery of ‘Rubber Stamps’ to every Congresscritter, back in 2005 or 2006. It was an early salvo of the Netroots on Capital Hill, followed by deliveries of ‘Crashing the Gates‘. But in view of Congressional ‘rolling over on FISA’, I think doggie leashes might be just the perfect gift to present each member of our gutless, feckless ‘Second Dead Branch’ of government.)

Okay, I’ll be nicer.
Along with the leashes, the Netroots could include some doggie biscuits for every member of Congress. As an added bonus, the Netroots might want to also drop off a nice box of doggie biscuits for each telecom lobbyist.

And I’d be willing to put a little extra in the pot to pay for some extra-special rhinestones on the doggie leashes for Hoyer, Rahm Emmanual, Jello Jay, and three other top sit-up-and-beg Dems. (I was loving Hoyer when he looked like he was standing up against Bu$hCo, but where is he now?)

D’ya think doggies leashes and biscuits could help send the message to knock off being ‘obedient’ and stop enabling Bu$hCo criminality?

Or am I just nuts…?

The endless scooping of snow has been helpful too!

You’ve got to snap out of it bmaz, it’s March…think basketball…