Monday, December 17, 2007

Are you ready for some filibuster?

Sen. Chris Dodd (D-CT) will take the floor of the US Senate today and engage in the first old-fashioned, “talk until you’re blue in the face,” “hold the floor and refuse to yield” filibuster in fifteen years. Why? Let’s just say the Sen. Dodd is rising to protect a little something I like to call The United States Constitution.

The Senate takes up debate of the latest revision to the FISA law today, and though what lead us to this point could take the better part of filibuster to understand, let me summarize by saying that the issue at hand that has motivated Dodd to rise in objection is the issue of granting retroactive immunity to telecommunications companies that broke federal law in order to help the Bush Administration illegally spy on American citizens inside the United States.

That it has come to this is tragic for so many reasons, not the least of which is the perplexing readiness of Senate Majority Leader Harry Reid (D-NV) to ignore a hold placed by Dodd on the Senate Select Committee on Intelligence version of the bill which contains immunity. That the SSCI, chaired by alleged Democrat Jay Rockefeller (WV), reported out a FISA bill that included retroactive immunity represents another titanic failure of the Democrats to show leadership and provide the constitutionally mandated check against Bush executive branch abuses of power.

Yet, in the face of so very many of those abuses over the past seven years, why is this time, this issue, the one that requires Dodd’s filibuster—and our support?

The battle over retroactive immunity contains numerous storylines that embody Bush Administration efforts to usurp power, consolidate it, and preserve it at the expense of the liberties that go to the very definition of what we are as a nation. It also exemplifies the over-close relationship that has developed between our government and corporate interests.

Writing in Sunday’s New York Times, James Risen, Eric Lichtblau, and Scott Shane—the reporters that originally broke the illegal domestic surveillance story two years ago—bring to light several new facts about the warrantless surveillance, as well as the relationship between the NSA and the Bush Administration on one side and several telecommunications providers, such as AT&T, Verizon, and Qwest Communications, on the other.

First up: if there were any doubt before, the article now makes clear that long before the attacks of 9/11/01, the Bush Administration sought to rapidly and massively expand the surveillance of communications between US citizens within the United States, and did so without using the legally prescribed processes laid out either in the FISA law, the criminal code, or the US Constitution.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

This adds detail to existing knowledge (documented—with multiple links—in two posts that I wrote in November) that within two weeks of taking office in 2001, the Bush Administration sought the cooperation of the nation’s largest telcos in order to collect a broad array of communications data generated and received by American citizens residing in the United States.

It has been noted that a program to collect phone records from citizens inside the US who called Latin America began in the mid Nineties as part of the “war on drugs,” but a) this program was ramped up significantly as soon as Bush came into office, b) such surveillance still requires some legal certification (so-called “basket warrants” or something similar), and there is no report that the Bush Administration is producing these warrants to defend the increased surveillance, and c) as noted in the above paragraph (if you look at it in the context of the NYT article) the warrantless access which was sought from Qwest was for a separate project.

Why is this timeline so important? As I wrote in early November:

It is not simply a matter of scheduling; it goes to the root of all arguments both for and against the surveillance programs. Since the telecommunications companies were approached by the administration in February of 2001, then none of this is a response to the attacks of 9/11. And, since the spying is not a response to those events, then what were the NSA and the White House looking for?

I added at the time that if they were trying to be proactive on terrorism, the tragedies that befell America seven months later prove the program an abject failure, but as we know (and know more assuredly with every revelation, biography, or ex-White House-staffer tell-all) Bush, Cheney, Rumsfeld, and Rice came into power with less than a passing interest in terrorism, and multiple attempts by outgoing Clinton officials to grab their attention did nothing to motivate the Bush bunch to ramp up their concern or actions.

So, with the drug war and terrorism ruled out as possibilities, what else could the Bush White House want to learn? Though anything I write at this point would by the rules of journalism be classified as speculation, I don’t think it’s too wild a stretch to say “everything.”

What I mean by “everything,” is that this group waltzed into the White House with dreams of a permanent Republican majority, and quickly sought to put in place an infrastructure that they thought would help them build and maintain it.

The consolidation and maintenance of power is a theme that runs through many of the outrages that now hound (or should hound) the administration. It encompasses the replacement of experts with ideologues, illegal detentions, rendition, and torture, the politicization of the Justice Department and federal bench, the accelerated consolidation of the media, the influence peddling and K Street scandals, the diminution of voting rights, and the sophistry involved in perpetuating what, for lack of a better term, I will call the permanent fear economy—and this is to name only a few.

A bulked-up surveillance network operating outside the law and the knowledge of oversight bodies gave the Bush Administration the tools to accumulate whatever information they might deem necessary for any number of projects. It is likely journalists have been the subject of some of this surveillance, and it is not beyond the bounds of logic to assume that others who have sought to dissent or challenge Republican power might also find themselves under the warrantless watchful eye of Bush Administration spooks.

It is this final point that seems to escape so many now engaged in the debate over new FISA legislation—not the least of them being members of the Democratic leadership. Does a Senator Reid or a Senator Rockefeller, who have both often railed against the lies and bad faith efforts of the White House, not believe that if given the opportunity, this administration would use all the tools in its possession to destroy Democrats or disrupt their agenda? If they can’t quite muster the strength to stand for the rule of law and the rights guaranteed by the US Constitution, you think that they could at least get it up to act in their own self-interest.

Self-interest of a different kind has shown itself to be important to the current debate. As I, and others, have noted, too many of the parties involved have a financial stake in acting in the interests of the telecommunications lobby. Jay Rockefeller has done particularly well (in terms of donations from the telecom lobby) since immunity became an issue.

The problem is, of course, that immunity stands in direct opposition to the interests of the nation and its people. As the Sunday Times article notes, there are several pending cases against the telcos that would shed necessary light on the cooperation between the industry and the administration in the building and operation of Bush’s illegal surveillance regime. Because the administration has been so secretive, and because the oversight has been so lax, the pending law suits against the likes of AT&T and Verizon are some of the few options left to those of us that want to restore protections guaranteed under the Constitution.

That members of both the intelligence community and the telecommunications industry tell the Times that a lack of retroactive immunity will make the relationship between the two more difficult—that telcos might not give their “full-hearted help” to the administration—is the very reason why liability should be preserved. After all, if the programs implemented by the Bush Administration were legal—if the White House had sought proper authority through the FISA court or other more open avenues—then the telecom industry would have nothing to worry about. If the legal documentation were in place, then the telcos would be in the clear.

Somebody (or some body) has to hold law-breakers accountable. If the administration won’t police itself, if the Justice Department has been turned into a White House rubberstamp, and the Congress won’t intervene with the power with which it has been endowed, then it is up to the people to protect their rights, themselves. It would show the utmost disrespect (for the people and for our laws) if the Senate were to take away these rights. One might even call the behavior criminal.

* * *

And, if Senators are gong to behave like criminals, where does that leave the rest of us? I would posit it leaves us as victims—or, as the surveillance regime might put it, as “targets.”

Christy Hardin Smith brings to our attention a post from early in 2006 about a provision of the Patriot Act that has been interpreted to apply to what used to be called “pen registers” and “trap and trace” devices that would make it easy and remarkably likely that pretty much anyone’s e-mail could be the target of secret surveillance without any specific warrant.

As I understand it, it is now permissible for the intel community to search the e-mails of anyone that has been connected to a target of an investigation. What constitutes a connection? An e-mail from the alleged “terrorist” or “drug kingpin” to the new party would do, but so would the appearance of the e-mail addresses of the original suspect and the new party in the header of an e-mail sent by a third party.

In other words, if I were to e-mail you, then you are connected to me. If I were to e-mail you and some guy you don’t know, let’s call him Ignatz, you are connected to me, Ignatz is connected to me, AND, in the eyes of the government, you are also connected to Ignatz—and that makes you fair game for a more intrusive level of surveillance, without additional court order.

To my mind, it’s a horrifying scenario. It would be possible—and easy—for the government to decide it wanted to target you, and then simply contract a third party to spam you and a “known” “terrorist” or “drug kingpin” with the same e-mail. With that connection made, your e-mail is now an open book. It precludes counter-arguments of “fishing expeditions” by providing a legal (or, really, “legalistic”) way to “narrow” the search. They don’t just bait the hook; they reach into the tank and wrap the fish in the line.

* * *

But in order to carryout any of this, the Bush Administration needs (needed?) the initial access to the digital systems maintained by telecom companies like Verizon, AT&T, and Qwest for their paying customers. How they wanted to gain access and what they then wanted to do was dodgy enough to give pause not only to former Qwest CEO Joseph Nacchio, but, as the Times now tells us, at least one other telecom company, as well.

Nacchio contends that his reticence cost Qwest valuable government contracts—that is up for debate. But the companies that did not pause likely did benefit from the increased level of cooperation between them and the NSA. In fact, Mike McConnell, who was in charge of the NSA, then went to the consulting firm Booz Allen Hamilton and worked on behalf of private intel-sector industries, and is now the Director of National Intelligence, has made it a crusade of his to privatize much of the government’s signal intelligence infrastructure. And, having done that, he now argues that we must grant immunity to these private concerns for fear that if they don’t have it, they will not allow the government access to their equipment.

In starker terms, McConnell is now insisting immunity be granted retroactively to the parties that he worked for during the time that the alleged crimes were committed.

All of this—the lies about when and why the surveillance began, the likely misuse of the surveillance infrastructure, the legal gymnastics used by the Bush Administration to cast the broadest of dragnets, and the cozy relationship between the government and the telco industry that it should regulate—all of this merits, indeed, requires the greatest degree of scrutiny from the Congress and the courts. That so many in Congress would choose not only to abdicate their rights to oversight, but now seek to strip that power from the people is either the height of ignorance or insolence. Either way, it should not be tolerated.

And, at least one Senator has said that he will not. Christopher Dodd, who is also a candidate for President, has taken time away from his campaign to stand up to a corrupt White House and its corporate cronies. He will spend this Monday (and perhaps many more days) filibustering a bill that his own Majority leader has forced to the floor in defiance of his party’s rank and file, and the vast majority of Americans at large. Where the former boxer Harry Reid would not fight, Chris Dodd has entered the ring. Let’s all let Senator Dodd know we are in his corner.

There are several ways to help:

Go to where you will find suggestions on many ways to help and links to much more information.

Call your senators and ask that they support Sen. Dodd’s filibuster. Ask them to refuse to support any FISA reform that grants immunity to the telecommunications industry.

Give the Senator something to read. Chris Dodd has some time to kill, but he’d like to do it with meaningful statements that show just how much we all care about this issue, about our laws, and about our Constitution as a whole. Crooks and Liars and Firedoglake are collecting statements, and Dodd’s office will look for comments that can be used by the Senator on the floor.

You can also e-mail Chris Dodd with your support.

And, if you want to watch your government at work, Dodd’s filibuster will be carried on C-SPAN2 today (starting at 11am, I believe).

(cross-posted on guy2k, The Seminal, and Daily Kos)

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