Grassroots Conversation with Kate Martin
Questions and Answers
- Congressional bills to be considered by April 27
- Tell us about earlier presidents, if they made similar warrantless wiretaps.
- Are any of the bills before Congress retrospective?
- But the Administration doesn’t want a bill from Congress does it?
- Does the Administration just want to be left alone and left to keep doing what they’re doing?
- Is it legal to target people overseas? And if those people called into the United States, would the call be legally wiretapped?
- If they wiretap a Pakistani communicating with an American, they’re obliged to disclose that, aren’t they?
- Schiff/Flake bill
- Can we prohibit the dismantling of the 4th amendment and the FISA law? Is there anyone back there willing to stand up on behalf of the Constitution and the Bill of Rights?
- Should we then write to the members of the Judiciary Committee, and tell them to get on the ball and defend the Bill of Rights?
- We need the human stories in order to make it clear to people in our communities that this affects them.
- Some of us are using letter-to-the-editor campaigns to inform our communities. Some of us are using impeachment campaigns. What is a solid grassroots strategy?
- How can we get our Congressional members to listen to us?
- What kind of legal arm-twisting would Congress have to do to get information from the administration about the warrantless wiretapping program?
- What exact kind of information do we want Congress to require the administration to submit? They’ve already admitted they’re engaged in this program – isn’t that enough to hang them out to dry?
- So you’re saying the information we want is why the FISA program doesn’t work?
Kate: Under some pressure from a couple of Republicans in the Senate, the Intelligence committees have started an inquiry. And the Administration has agreed to brief seven senators on the Intelligence Committee and some .. I forget if it’s 7 or 8 on the House Intelligence Committee and to do so in great detail. They have not, however, agreed that those members of Congress can share that information with even the other members of the Intelligence Committees, much less the cleared staff of the Intelligence Committees, or any other members of the Congress.
What has happened is that there have been two bills introduced by Republican senators which would basically authorize the program. One was introduced by Senator Specter, and although he describes it as a way to get court decisions on the legality of the program, that is not in fact what the bill does. It would actually authorize the program. And the other bill was introduced by the four Republican senators who had initially questioned the program. Senators Hagel, DeWine, Snowe and Lindsay Graham. But that bill also would authorize the program.
The objection to those bills – the first objection is how are you legislating when you don’t know what it is you’re legislating about? But I think it’s very telling that what those bills do is authorize these kind of massive programs of surveillance that don’t have any individualized warrant, so that instead of the government having to identify a particular individual or phone number that they’re going to surveil, it authorizes data-mining basically. One is left with a suspicion that that’s what is actually happening.
There’s also been a bill introduced by Senator Schumer that would attempt to give standing to sue the people to challenge the program. I’m not sure the bill would succeed in what it sets out to do.
There’s a bill in the House co-sponsored by a Republican and
a Democrat – or about to be introduced that reiterates that
FISA is the exclusive means.. [Representative Flake from Arizona,
and Representative Schiff from California.]
And then there’s Senator Feingold’s censure resolution, which has been introduced in the Senate.
What it looks like is that the Senate Judiciary will take up and consider all of these bills and perhaps as soon as April 27. Then may report out two Republican bills – with a recommendation or not – but basically so that they will have gone through the committee. The Intelligence Committee in the Senate will then take those bills. If the Administration wants a bill that authorizes the program, at the moment they probably have the votes to get the bill in the Senate. And so the real question is whether or not the Administration wants it. There are a lot of procedural obstacles to having that bill pass between now and the end of the year, but it wouldn’t be impossible if they really wanted it.
No Democrats in the Senate have yet endorsed any of the authorization bills. But I think there is a lot of concern that the Democrats will be persuaded that the program is in fact, a good program because it only intercepts and only looks at suspicious conversations and there are adequate safeguards, etc. And that they won’t want to be seen as stopping the surveillance of terrorist telephone conversations.
We have a big job in front of us.
We’d like to make sure Congress doesn’t authorize the program or even change the law unless and until there is some full public accounting of what’s going on. Our bottom line objective is, if the Republican administration and its allies in the Congress insist on a bill and have the votes to get the bill, then in the end we have as much opposition possible against such a bill, even if it passes in the next few months.
Kate: Before 1978, every president did authorize secret warrantless wiretaps. But the difference was there was no law that prohibited them from doing so. And their excuse was there was no way for them to get a warrant, because there was no procedure whereby they could get a secret warrant and keep it a secret and not tell the person.
It was not until 1968, believe it or not, that the Supreme Court held that wiretapping in general was covered by the Fourth Amendment. In a case called Katz [Katz v. United States, 389 U.S. 347 (1967)], it was said that a warrant was needed for wiretaps. It left open the question as to whether there was a national security exception for a warrant. In 1972, the Supreme Court held that a warrant was needed for domestic national security wiretaps, meaning when there was no foreign element. You know, you weren’t talking to someone overseas – it wasn’t part of an international terrorist group, etc.
So, since 1978 when FISA was passed, no president has broken the law before this one.
Kate: Both Republican bills are retrospective. Senator Specter’s bill has the specific procedure in it which says that the government should take any existing program to the FISA court and get it authorized. The actual retrospective effect would probably be subject to litigation if it were passed, but they are meant to immunize what’s happened before, as well as to allow it to go on.
Kate: They started off by saying they don’t want a bill. They haven’t asked for a bill and what they’ve said was in response to the Republicans who, in my opinion, masqueraded as questioning the program, but were really saying, ‘Wouldn’t you be better off if you had this program authorized by Congress?’ And in response to those questions, ‘Wouldn’t you like us to authorize it for you?’ Gonzales has said, ‘Oh, we’d be happy to take a look at that.’
It’s very unknown whether or not they want the bill. I mean, they haven’t said they want one.
Question: Does the Administration just want to be left alone and left to keep doing what they’re doing?
Kate: It depends in part on their political calculations. Is a debate over the bill good or bad for them in the November elections? Another calculation is whether or not some of the Republican leaders in the Senate say to them, Listen you know you have to have Congressional authorization, because we’re supposed to have more than one branch of government here. So, if those senators insisted on it, and then the question is whether or not there is enough pressure being generated by all of this to make the people who are actually carrying out the wiretapping – people working for the NSA or the telephone companies – nervous, so that they would go to Congress and say, ‘Look, we need more protection than we have now. You need to authorize this.’ I don’t know that this has happened as of now. I haven’t seen any signs that they’ve said, ‘Look, we need immunity here.’ It’s very unknown. My guess, and it’s a total guess, is that the administration hasn’t decided what they want.
Question: Is it legal to target people overseas? And if those people called into the United States, would the call be legally wiretapped?
Kate: Yes, because here’s the way it works. It’s basically the idea of how far does the 4th amendment warrant protection apply? The basic concept is that if the government seized a conversation in the US and one party to the conversation is in the US, they have to get a warrant under FISA. And obviously, if they listen to 2 people inside the US talking to each other, emailing to each other, they have to get a warrant. If they listen to two Pakistanis talking to each other in Pakistan, the 4th amendment doesn’t apply and they don’t need a warrant. And so if somebody from overseas calls the US, what the rule has been is – they don’t need a warrant, but the NSA has regulations limiting when it’s disclosed – that intercept with the American’s name – outside the NSA. It was designed to limit that disclosure.
Question: If they wiretap a Pakistani communicating with an American, they’re obliged to disclose that, aren’t they?
Kate: The confusion has to do with who they’re targeting. If their surveillance equipment is targeted on the Pakistani, they don’t need a warrant. If an American is heard on that, they don’t need to disclose it, either. They have regulations about what they can do with that information. If the target is an American and calls a Pakistani, then they need a warrant.
[Kate suggests that individuals who want to understand more about this might want to listen to testimony from Bruce Fein, testifying before the Senate Judiciary Committee. http://www.knowledgeplex.org/news/157062.html]
Introduced by Representative Flake from Arizona (R) and Adam Schiff
It’s a somewhat peculiar bill, to tell you the truth, because in some ways, it just says what the law already says. And so its legal effect is kind of [nebulous.]
Question: Can we prohibit the dismantling of the 4th amendment and the FISA law? Is there anyone back there willing to stand up on behalf of the Constitution and the Bill of Rights?
There [is] a minority of Democrats at the moment, and I think our job is to increase that number. First there’s Senator Feingold who’s going to do everything he can against this. Senator Leahy has been extraordinarily strong about it in support of Senator Feingold. The other Democrats – if you look at the lists of both the Intelligence and Judiciary Committees – which are the committees that matter at the moment. And all of those people could use shoring up, I would say. There are a number of Democrats in the House who have been very strong. Remarkably enough, Rep. Jane Harman from CA, who’s usually a conservative on these issues, has been much stronger about questioning the program than I would have expected. I think that the key is public opposition. And changing the message. The president said the issue on the table is should we listen to al-Qaeda. If that’s the issue on the table, we lose, because the obvious answer is ‘yes,’ right?
Question: Should we then write to the members of the Judiciary Committee, and tell them to get on the ball and defend the Bill of Rights?
Kate: Hearing from [their constituents] would be very helpful [in moving Congressional members to action.]
Question: We need the human stories in order to make it clear to people in our communities that this affects them.
Kate: There is one difficulty and that is – we don’t have the stories. And I think it is unlikely that we are going to get the stories. And we have to be a little careful, because the facts are in [the administration’s] possession rather than ours. A different way of framing it is – the ACLU has done some polling that shows that people are worried about the fact that the president broke the law and he lied to the American people about doing it. He did not come to Congress and say, ‘I think I have the Constitutional authority to wiretap Americans without a warrant and so I’m telling you that.’ [Instead] he lied. And when Gonzales was asked are you doing this, Gonzales said, ‘No we’re not doing it, and I’ll tell you if we’re doing it.’ And that message might be the message people could relate to.
Question: Some of us are using letter-to-the-editor campaigns to inform our communities. Some of us are using impeachment campaigns. What is a solid grassroots strategy?
Kate: The underlying strategy is a strategy between now and November, and the strategy is to work to oppose any bad legislation and on the positive side to urge Congress to find out the facts before they do anything. And they’re nowhere near finding out the facts. That’s the inside the Beltway small strategy.
Anything you can do to communicate with members of Congress that people object to the president breaking the law, and you don’t want the program authorized and Congress should find out the facts would be enormously helpful. I think it’s people like Clinton and Schumer who are in some ways key to the debate. [It can be useful for] their constituents [to] tell them, ‘We expect you to stand up for the president being held accountable.’
Censure and impeachment are one way of saying that to them. If you can get an actual meeting with them, the ‘ask’ that they can actually deliver on is, ‘Oppose the Republican bills. Insist on the administration telling the Congress the facts about the program. And we want you to make a speech to do that.’ The members need to hear from as many different people in as many different ways as possible.
Kate: The only thing the Democrats are focused on is winning the November election. And so in order to have traction on this issue, people have to go say, “Listen, we’re constituents. We’re supporters. And this issue matters to us. And we expect you to do the right thing about it.” And there are plenty of ways, if the Democrats want to try at least to postpone having a difficult vote between now and November. It’s just a question of whether they’re going to be strong enough to do that.
We don’t want those bills passed. We want some real inquiry. And eventually, if they pass legislation, we want the key to the legislation to be that it requires a warrant. And I think censure is the appropriate sanction. But that’s a long-term goal.
Question: What kind of legal arm-twisting would Congress have to do to get information from the administration about the warrantless wiretapping program?
Kate: They could subpoena it, but that requires Republican support at the moment to subpoena it. There are some Republicans who are reasonable to target on this issue. Specter is one. Hagel is one. DeWine from Ohio. Even Lindsay Graham. And Senator Sununu is a possibility. There are others. You could say to them, ‘We want Congress to subpoena the information.’
Question: What exact kind of information do we want Congress to require the administration to submit? They’ve already admitted they’re engaged in this program—isn’t that enough to hang them out to dry?
Kate: It’s not enough for Congress to cut off the funding for the program. And that’s Congress’ ultimate weapon is to say and that’s the ultimate question, should the program continue? If the program is going to continue because it’s a worthwhile program, it should be done in a lawful way. But no one knows whether it’s a worthwhile program, because no one what the program is. Or why it can’t be done within the law at the moment.
The Republicans have said, ‘No Democrat has called for ending the program, so we call your bluff on this.’
Kate: Exactly. And why [the administration] need[s] to do this.
Senator Feinstein is a key person in this debate. She was outraged at the lawbreaking, but now she’s saying, ‘Well, maybe we need to authorize it.’ She needs to hear from Californians that nothing can be authorized until we know what’s going on here.
I think that this is an instance in which it would be very useful
in communities to make sure there’s coordination and reaching
out to our allies – the ACLU, People for the American Way, Move-On,
and the faith community. This can be more powerfully coordinated community