This morning I will be testifying before the House Judiciary Committee’s Subcommittee on Crime and Federal Government Surveillance on “Fixing FISA.” The hearing will start at 9:15 am at 2141 Rayburn House Office Building. The specific focus will be the reauthorization of Section 702, one of the most controversial and most abused sections of the Act.
I will be joined on the panel with a distinguished group of experts:
Phil Kiko, Principal, Williams & Jensen; former Chief of Staff and General Counsel, House Judiciary Committee; former Chief Administrative Officer, House of Representatives
Gene Schaerr, General Counsel, Project for Privacy and Surveillance Accountability
Elizabeth Goitein, Senior Director, Brennan Center for Justice at New York University School of Law
Here is my testimony: Turley.Testimony.FISA.6.14.23
Jonathan: Your legal practice these days, such as it is, is testifying before the MAGA controlled House of Representatives–a friendly audience. That may change next year if the Dems take back control. So it’s get while the getting is good seems to be your operative agenda.
How could the Dems take back control of the House next year? That was made possible by what is happening in New York state. A state court of appeals just ordered the state to redraw its congressional map–originally drawn by a Republican judge that favored the GOP and made it possible for George Santos to get his congressional seat. The GOP is up in arms because a more fairly drawn map could give the Dems up to 6 House seats. Overt gerrymandering may be OK in North Carolina or other states controlled by the GOP but not in New York state.
Then we have more grist for the conspiracy theorists who believe that the Biden DOJ is out to punish the “patriotic Americans” for just exercising their “free speech” rights on Jan. 6. The DOJ just announced it is appealing the sentences for some of the Jan. 6 insurrectionists. Judge Mehta sentenced Stewart Rhodes, the leader of the Oathkeepers, to 18 years for seditious conspiracy. The DOJ doesn’t think the sentence was long enough because it was below the sentencing guidelines. The DOJ thinks Rhodes should get 25 years–and longer sentences for his co-conspirators. This is a departure from normal DOJ that doesn’t usually appeal sentences. There is speculation that Jack Smith played a role in the decision to appeal. He wants to put down a marker that when he drops the hammer on DJT over Jan. 6 he doesn’t want the sentencing judge to give DJT just a slap on the knuckles. He wants the guy who planned the attempted coup to also get 25 years. Seems fair to me.
Finally, AG Garland announced this week that the DOJ is stepping out of the E. Jean Carroll defamation lawsuit. The DOJ no longer thinks the sexual assault by DJT qualifies for presidential immunity–that he was not acting within his official duties as president in that dressing room inside Bergdorf Goodman. The DOJ should never have intervened in the case in the first place. Bill Barr only intervened as a favor to protect his boss. So DJT is now defenseless and if he also refuses to testify in the second defamation case he may be looking at a judgment of $10 million! Just when you think things couldn’t get worse–they get worse!
Always a pleasure reading your two cents, Dennis.
Not.
Anonymous, please, get a life.
Is that you Bob? Having a bad day are ya?
“He wants the guy who planned the attempted coup..”
Obviously you’re insane like the rest of the dictator lying America hating demoncommies.
It’s actually unbelievable you said it.
One hopes otherwise and you’re callously cackling and know it’s all BS, but I doubt it. That would also be just as evil and disgusting.
It’s clear we’re beyond reality with the fevered psychos running this crap and their useful idiots.
Not a good thing for the USA at all.
Dennis – here is a similar story from Russia in 2015. Alex Navalney, a prominent critic of Putin, was sentenced to 3.5 years in prison for overcharging business firms for postal expenses. The prosecutor appealed: ” ‘We demand that Navalny be sentenced to 10 years in jail,’ state news agency RIA quoted a prosecutor as saying at the appeal at Moscow city court.” https://www.yahoo.com/news/russian-prosecutors-demand-10-years-jail-kremlin-critic-084930719.html
Dear Prof Turley,
Good work. I was here before 702 too. Quite frankly, I was here before FISC was knee high to a jackrabbit.
I was here before 9/11 when VP Cheney took ‘the gloves off’ and ‘we tortured some folks’. (ibid Obama) All in the name of ‘vital national security interests’ and ‘protecting Americans’.
Since then, it seems all national security matters, including 702, revolve around the same basic premise as articulated by FBI Dir. Wray recently concerning the FBI’s mission: a.) to protect Americans .. . and b.) to uphold the constitution.
Clearly, there is many a slip between cup and lip. In the case of 702 FISA, and the FISC itself, I would argue the awesome power of the U.S. government must first a.) uphold the constitution . .. and b.) protect Americans.
I would further argue even ‘foreign’ targets of FISC proscribed U.S. surveillance, for example German Chancellor Angela Merkel, should have some measure of public recourse/protections. After all, if we are to ensure the ‘letter and spirit’ of our great Union will not vanish from the earth .. . we must at least offer it – the ideas enshrined in the constitution – for consideration and debate.
*”The Foreign Intelligence Surveillance Court was established by Congress in 1978. The Court entertains applications made by the United States Government for approval of electronic surveillance, physical search, and certain other forms of investigative actions for foreign intelligence purposes.” .. and there is no public defense.
Some good analysis from Glenn Greenwald from six years ago:
https://theintercept.com/2017/03/13/rand-paul-is-right-nsa-routinely-monitors-americans-communications-without-warrants/
“I believe it’s fully legal, talk to our lawyers, I cannot comment further.”
…
“It may be legal but it’s not constitutional.” (oooh what a burn) …. that ‘ell show ’em those nasty pin you down words… what a win….
IT ALL CONTINUES, UNABATED, THE END.
I don’t understand it when members of the free press make such a fuss out of what someone expresses, as if it is a crime to express it, as if they would prefer that certain things not be said. Has the free press forgotten that free expression is for other people, too, besides only themselves?
It is a crime here sometimes now, and of course it’s a crime in many other places in the world, so total crime and total control is what they are shooting for. In the mean time, banning, debanking, firing, physically attacking with blm and antifa shock troops and protesters, and many other methods of attack are used, like lawfare for instance.
What you should understand is what they are going for, what they already have had for some years now, and how close they are to sealing the deal utterly. It already isn’t the America most alive knew, and the dictatorship like tyranny it is morphing into is coming fast.
Think covid response on steroids placed into permanent service.
Good luck, Professor!
FISA is/was an abomination and has to go.
When abuse is discovered laws must remove that power from government.
Conservatives once supported FISA abuses and unchecked government when George W. Bush was in office. FISA was originally created to limit and restrain executive branch abuses following Watergate. Bush and his supporters in Congress turned this system upside down, using FISA and the FISA Court to facilitate (not restrain) abuses to our U.S. Constitution.
When this unconstitutional monster started preying on and turned on it’s Republican inventors, now they oppose this system.
Glad the Conservatives finally came on board. Better late than never!
The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by DEMONCRAT Senator Ted Kennedy and was signed into law by DEMONCRAT President Carter on 25 October 1978.
After 911 when all the cowards were running around with their hair on fire and the public demanded someone so something, Republicans supported going after domestic foreigner terrorists with FISA.
Of course, the DEMONCRATS always decided using it on domestic political enemies is it’s proper role.
re: Shakdi
Also Republicans like Senator Storm Thurmond. He’s the Senator that was adamantly opposed to the Civil Rights Act protecting African-Americans. Then surprise Thurmond had a daughter with a female African-American servant.
Valid point though, it should have said “re-invented” the FISA Act using the logic of a George Orwell novel describing totalitarian regimes – everything means the opposite.
Instead of “limiting and restraining” executive branch abuses, Bush re-invented FISA to mean the opposite. The new & improved version “facilitates” executive branch abuses. Bush got rid of the “limiting and restraining” part.
I don’t believe Bush did it like you say. I saw modifications from Congress and various years of those post 911.
I quite understand you fudge immensely, even in admitted self correction.
Drone boy Obama is something you’ll not point out, for sure. Nor will we hear of Hillary’s war mongering at the SD, Nuland’s overthrow of Ukraine with Biden in 2014, etc.
Certainly war monger Bill Clinton is off the hook, too. An astounding number of yacking fools wailed peace and prosperity pretending Clinton had not a single war during his tenure. What a joke, go pull another giant blunderbuss post who cares it’s lies to me.
Demoncrat Al Gores DAD opposed the civil rights act, AND THE MAJORITY OF REPUBLICANS WERE FOR IT WHILE THE MAJORITY OF DEMOCRATS were against it.
“Of the four acts passed between 1957 and 1968, Republicans in both chambers of Congress voted in favor at a higher rate than Democrats in all but one case. Republicans often had fewer total votes in support than Democrats due to the substantial majorities Democrats held in both the House and Senate.
During this period, the South was a Democratic stronghold that consistently resisted the civil rights movement.”
Strom Thurmond … HAHAHAHAHHA GO BLOW IT UP SOME IDIOTS PATOOTIE FELLA.
I can’t stand liars and con artists. Can’t stand em.
Thanks for the reply though, I do appreciate the attention.
1964 civil rights act, the most spoken of and most cited: ” The House passed the bill after 70 days of public hearings and testimony in a 290-130 vote. The bill received 152 “yea” votes from Democrats, or 60 percent of their party, and 138 votes from Republicans, or 78 percent of their party.”
DEMOCRATS ARE RACIST.
” The FISA Amendments Act was first passed in 2008, when Pelosi was Speaker. In her floor speech in support of the FISA Amendments Act on June 20, 2008, Pelosi made this claim:
Some in the press have said that under this legislation, this bill would allow warrantless surveillance of Americans. That is not true. This bill does not allow warrantless surveillance of Americans. I just think we have to stipulate to some set of facts.
”
HAHAHAHAHAHAHAHA
Yeah “bush did it”…. PLBLBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
Good luck, Doc. Would like to think you’ll persuade a few members to ‘do the right thing’, but I won’t hold my breath.
How much do you want to wager that the Democrats will want to leave things as they are….as it benefits their politicization of he DOJ and other Law Enforcement/Intelligence Agencies?
“I will be testifying . . .”
To help with your Q&A prep:
— Have you ever worked at FISA? Never mind that it’s not a place. I want to know if you’ve ever worked there. And if not, what qualifies you as an “expert” about it?
— When did you become a shill for Fox News?
— You claim to be against surveillance. Yet your blog administrator (DS) surveils your blog comments. (I’m sure there’s a question there, somewhere.)
— Eminent authorities at countless legal forums claim that you’re a hack. Care to reply?
— Your ideas are a threat to democracy. And extremist. And give aid and comfort to white supremacists. And you call yourself a law professor?!
The establishment in Washington thinks the constitution is.nothing more than a quaint old docoment that is not relavant to us anymore.
A good summary of the FISA system but I would argue that we should let the whole system sunset and then start a rebuild with constitutional protections at every step of the the way. When reforming a large and unwieldy system, there is often the ability to keep some of the basic tools of the system available to the users of that system. These tools can seem innocuous and sometimes are hidden and can then be used to overcome or totally emasculate the reforming legislation. Better to let it all burn and then rebuild based on that knowledge of success, failure and abuses and decrease the size of the legislation and simplify it so as to not obscure intent and purpose. Appendages to the legislation should be there, not as a part of the law but primarily to summarize abuses found and the intent to remove and prevent future abuses. Knowing attorneys and how excellent ones can turn meanings by the pivot of a word or a phrase, I think simplification is the clearest and best means to makes progress that preserves our freedoms, constrains the abuses of the Fed. Gov. (And the government is always stretching for more power) and yet provides for reasonable security.
We have become lazy and using all this electronic monitoring in the place of real intelligence and counterintelligence, and law enforcement and lost our edge. It has not escaped me that the UK (for all it’s challenges) and Israel do not have all the electronic skill that we have but are exceptional at HUMINT and pull off surprises in both discovery and action on the international security front. We are very exposed there by our over reliance on electronics.
Time to pull back on the long arm of the government, refocus their energies to law enforcement and crime, legitimately at home and build on our human intelligence to marry to our electronic expertise internationally.
If a building is rotten at its foundation, and the core is crumbling, don’t prop it up. Demolition followed by rebuild .
Justice Department employees knowingly violated FISA law and weren’t fired. Likely some were promoted or favorably commended. Without a penalty for those knowing they broke the law and their superiors, we can do nothing to stop these things from happening.
Any laws protecting privacy should include penalties for breaking those rules, and Congress should demand that these agencies must get individual approval each time for anything that appears to be a workaround before they can violate a citizen’s privacy. That approval should then go before a rotating committee that can look at all former with the ability to look at former authorizations.
When they went after Trump we found out about the FISA abuses. The court wrote a letter about these abuses and instead of fixing the problem it got much worse. It was so bad that people in the system started running their own names to see what would they find. There has been no reform and things are only getting worse.
The vast majority know it and babble incoherently on how to fix it, while knowing full well any fix is just more excuse to do even worse, as it’s all captured by unaccountable criminals, and the new crimes will be written into the hundreds of pages of unread and near indecipherable “legislative reform”, while the proclamations will be the exact opposite. Years later the new more disturbing crimes will leak out with some new scandal, and the process of more criminality legalized will begin anew.
It all goes the same direction now, down the drain.
Good for you professor!
Thank you, Jonathan, for doing this for all of us. Much appreciated.
Professor, you seem to be one of the few who are truly defending the US Constitution, though you didn’t take an oath as so many others did. Thank you!
The truth is, I believe the men and women charged with the fate of 702 are paralyzed by fear. They’ve been cowed into believing that if some devastating attack happens 702 provisions might have prevented, it’ll be squarely on them.
Please – PLEASE – if you have the opportunity to address this fear, point out that a MUCH more clear and present danger exists if 702 is renewed because of the abuses that have (and presumably continue) to occur!
It isn’t hyperbolic to say that we are literally losing our Republic because the Rule of Law is not being applied the actions of those entrusted to uphold it! When public servants willfully ignore Constitutional Constraints and they aren’t held accountable, that Constitution is utterly meaningless.
Ditto.
Wow, Professor, fantastic presentation. Worth reading several times.
FISA 702 use is under the power of the Chief Justice. Roberts has done nothing to stem the abuse. Most under the FBI umbrella.
We also learned from Durham, the presence of a FBI work station at the Office of Perkins Coi law offices.
truthfully…do you believe the Rule of Law exists in the USA?
Not for the political elites of both parties and their surrogates. For their enemies the full brute force of the law is used however they twist it to accomplish the desired result. The end always justifies the means especially when it applies to Trump. We have a surveillance state just like the USSR
Go get ‘em, Professor Turley! You’re doing great!!