FISA: Yes We Can!

(updated below)

This post is going to be hard to write, for after a day of reading all of the analysis of, various statements on, and articles about the Hoyer/Bond/Bush FISA revision I’ve got an anger in me that is this close to blowing straight out my fingers and through the intertubes in all kinds of vial and unflattering ways.

For instance, I was tempted to title this piece “Yes we can capitulate!”

But more on that later.

First, the House “compromise” FISA bill was finally allowed to see the light of day on Thursday afternoon. . . and will come to a vote before the full House less than 24 hours later. No reasonable period for members to read the legislation and talk to their districts, no hearings, no time for even a perfunctory national debate ala the Sunday talk shows. This is the insta-vote tactic we’ve come to expect from Republicans during the last—oh, what, wait a minute, what’s that you say? Yes, that’s right, Democrats now control the House of Representatives!

You might want to remind them of that.

Second, as I mentioned on Wednesday, all you really need to know about anything with the words “Republican” and “compromise” in the description is that it is no compromise at all. Don’t believe me? Then perhaps you’ll want to know what Republican Senator Kit Bond has to say about this latest, uh, deal: “I think the White House got a better deal than even they had hoped to get.”

Bond led the negotiations on this “compromise.” Imagine, Republicans in the Senate negotiating with the Bush Administration and giving the president more than he could have imagined. That’s just the kind of BS faux-process that the Republican Senate leadership has turned into business as usual—what, huh? Oh, I see, Democrats are now the majority party in the Senate!

You might want to remind them of that.

Third, some Democrats—the ones that remember that they are Democrats (not to mention that they swore to protect and defend the Constitution)—recognize a bad deal when they see it. Senator Russ Feingold, for instance:

The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President's illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.

Or Senator Christopher Dodd:

I cannot support the so-called ‘compromise’ legislation announced
today. This bill would not hold the telecommunications companies that
participated in the President’s warrantless wiretapping program
accountable for their actions. Instead, it would simply offer
retroactive immunity by another name.

As I have said time and time again, the President should not be above
the rule of law, nor should the telecommunications companies who
supported his quest to spy on American citizens. I remain strongly
opposed to this deeply flawed bill, and I urge my colleagues in
Congress to join me in supporting American’s civil liberties by
rejecting this measure.

These Senators remember the meaning of the phrase “rule of law.” You might want to thank them for that. . . and urge that they not only voice their displeasure but vow to stop this “compromise”—with a hold or a filibuster, if necessary—should it reach the Senate.

Fourth, the Speaker of the House, Democrat Nancy Pelosi, can’t quite bring herself to say what she thinks about this legislation (h/t GG), even though her chief deputy, Steny Hoyer, negotiated it.

Tomorrow, we will be taking up the FISA bill. As you probably know, the bill has been filed. It is a balanced bill. I could argue it either way, not being a lawyer, but nonetheless, I could argue it either way.

What the fuck was that??? I could argue it either way? What is this, Pelosi’s audition for a summerstock production of Fiddler on the Roof? On the one hand. . . but on the other hand. Well, let me put this in Tevye terms for you, Madame Speaker: On the one hand, there is the Bill of Rights, and the Fourth Amendment, which protects every American from things like warrantless surveillance, and on the other hand. . . THERE IS NO OTHER HAND!

You might want to remind her of that.

Fifth, the Democratic Party’s newly anointed standard-bearer, Senator Barack Obama has (as of this writing) been uncomfortably silent on this crucial issue of the day. If Obama wants us to follow him into November fighting for a change in Washington, if he wants us to see him as a new kind of leader who doesn’t represent the cynicism of politics as usual, then now would be a good time to start leading.

You might want to remind him of that.

Sixth, if you need some talking points while you are doing all that reminding, how about the words of the ACLU’s Amanda Simon:

Remember that horrible bill the Senate passed earlier this year? The one that had virtually no Fourth Amendment protections? Ok, now imagine Congressman Hoyer and Senator Bond putting a really pretty, really meaningless bow around it to distract you from what’s actually inside. Then they added a giveaway to the phone companies. There. Now you have the current FISA bill. Let me explain.

Court review? Pssh. Please. This is how it would work: The government wants to tap someone’s phone. It claims “exigent circumstances” and begins to do so. Then it goes to the FISA Court to be granted a warrant. “Hold up,” says the court. “This application is problematic and based on heresay [sic].” Now the government starts the appeals process and that goes on for heaven knows how long. When does the surveillance stop on the problematic target? Um, never. The government is allowed to begin tapping without the courts and continue tapping when the court says no, provided it appeals. Nice, strong and meaningful judicial review, huh?

Immunity? Yes. Yes, it is. Here’s why: This immunity “compromise” sets the bar so low that anyone can clear it. Immunity hinges on whether a document from the president or government exists asking the companies to comply? We know they have them. You know who told us? The president. Asking the phone companies to put on their Sunday best, waltz to the courthouse and present a note from the leader of the free world does not a full and fair airing of the facts make. It’s a farce and, frankly, it’s offensive to those of us who cherish our privacy rights. Congress will be opening a Pandora’s box if this provision becomes law. What’s to prevent these companies from handing over our information again? Absolutely nothing.

Or how about Kevin Blankston, senior lawyer for the Electronic Frontier Foundation: “No matter how they spin it, this is still immunity. It’s not compromise; it’s pure theater.”

Or, there’s the ever-intrepid Marcy Wheeler: “The ‘immunity’ provision here sucks ass.” (Actually, Marcy has a far more detailed rundown of the specifics here, like warrants, minimization, and exclusivity—please click on over to take a look.)

Then there’s the equally intrepid Glenn Greenwald:

The provision granting amnesty to lawbreaking telecoms, Title VIII, has the exact Orwellian title it should have: "Protection of Persons Assisting the Government."

. . . .

So all the Attorney General has to do is recite those magic words -- the President requested this eavesdropping and did it in order to save us from the Terrorists -- and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was.

. . . . It's full-scale, unconditional amnesty with no inquiry into whether anyone broke the law. In the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected.

And, Glenn adds after reviewing the full text of the capitulation:

Perhaps the most repellent part of this bill (though that's obviously a close competition) is 802(c) of the telecom amnesty section. That says that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal.

So basically, one day in the near future, we're all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we're never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won't we, the public, know that, neither will the plaintiffs' lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. Freedom is on the march.

And Josh Nelson:

Protecting the 4th amendment is an American issue, not a partisan one. Thoughtful Americans from across the geographic, demographic and political spectrum recognize the importance of fighting for the liberties that have served us for over 200 years. This is especially true in a time of war, when the temptation is great for those in power to abuse their responsibilities. There is no clause in the Constitution that says the executive branch can ignore provisions in the bill of rights when they deem it necessary, and for good reason.

And, if I might be so bold, me:

[T]he White House and its enablers [want] to hide their own grievous wrongdoing. And to do that, they must keep the lawsuits against the telcos from progressing in any way, for, as the Times understands: “Lawsuits against those companies are the best hope of finding out the extent of Mr. Bush’s lawless spying.”

This administration is committed to keeping the extent of that spying secret, of course, for if details came out, we would come to understand that the White House not only violated the Constitution, they did so not to protect us from any terrorist threat, but instead to protect their own hold on power. Remember, the warrantless surveillance started seven months before the 9/11 attacks, and was used to keep tabs on journalists and United States citizens inside the US. We know this much partly because of reporting in the New York Times, the Washington Post, and USA Today, among others, but we know more about the timing and targets because of what has come out in open court cases so far.

And, just to recap, there is that New York Times editorial from Wednesday:

The bill is not a compromise. . . . [M]any of its provisions are both unnecessary and a threat to the Bill of Rights. The White House and the Congressional Republicans who support the bill have two real aims. They want to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.

Seventh, don’t look for any similar words of discontent from anyone in the Bush-Cheney camp—you won’t find them.

So how does all of this make you feel, dear reader? Are you ready for your Network moment? Are you mad as hell? Well, don’t open a window and yell about it, and don’t just sit and type, either. If you are mad as hell and determined not to take it anymore, if you thought that you worked so hard in 2006 to elect all those Democrats in the Democratic majority in order to stop crap just like this then you might want to remind them of that.

And you might want to remind them of that today.

McJoan was kind enough to provide us with the numbers:

Call Barack Obama and urge him to make a public statement reiterating his opposition to telco amnesty. His opposition could kill this deal: Phone (202) 224-2854, Fax (202) 228-4260

Call Steny Hoyer and tell him this is a bad deal: Phone (202) 225-4131, Fax (202) 225-4300

Call Nancy Pelosi and urge her to pull the bill from the House schedule: Phone (202) 225-4965, Fax (202) 225-8259

Call your representative and tell them to vote no on the FISA rewrite tomorrow.

Here are the Blue Dogs who supported the House's good FISA bill, the one that did not include amnesty. Call them and ask them to hold tough and vote against this bill tomorrow:

• Rep. Leonard L. Boswell, D-Iowa -- Phone: (202) 225-3806, Fax: (202) 225-5608


• Rep. Marion Berry, D-Ark. -- Phone: (202) 225-4076, Fax: (202) 225-5602


• Rep. Mike Ross, D-Ark. -- Phone: (202) 225-3772, Fax: (202) 225-1314


• Rep. Earl Pomeroy, D-N.D. -- Phone: (202) 225-2611, Fax: (202) 226-0893


• Rep. Melissa Bean, D-Ill. -- Phone: (202) 225-3711, Fax: (202) 225-7830


• Rep. John Barrow, D-Ga. -- Phone: (202) 225-2823, Fax: (202) 225-3377


• Rep. Allen Boyd, D-Fla. -- Phone: (202) 225-5235, Fax: (202) 225-5615


• Rep. Joe Baca, D-Calif. -- Phone: (202) 225-6161, Fax: (202) 225-8671


• Rep. John Tanner, D-Tenn. -- Phone: (202) 225-4714, Fax: (202) 225-1765


• Rep. Jim Matheson, D-Utah -- Phone: (202) 225-3011, Fax: (202) 225-5638


• Rep. Brad Ellsworth, D-Ind. -- Phone: (202) 225-4636, Fax: (202) 225-3284


• Rep. Charlie Melancon, D-La. -- Phone: (202) 225-4031, Fax: (202) 226-3944


• Rep. Dennis Moore, D-Kan. -- Phone: (202) 225-2865, Fax: (202) 225-2807


• Rep. Zack Space, D-Ohio -- Phone: (202) 225-6265, Fax: (202) 225-3394

These are the Blue Dogs who were with the Republicans on the last vote. Tell them it's never too late to redeem themselves and vote against this bad bill:

• Rep. Dan Boren, D-Okla. -- Phone: (202) 225-2701, Fax: (202) 225-3038


• Rep. Christopher Carney, D-Pa. -- Phone: (202) 225-3731, Fax: (202) 225-9594


• Rep. Jim Cooper, D-Tenn. -- Phone: (202) 225-4311, Fax: (202) 226-1035


• Rep. Lincoln Davis, D-Tenn. -- Phone: (202) 225-6831, Fax: (202) 226-5172


• Rep. Tim Holden, D-Pa. -- Phone: (202) 225-5546, Fax: (202) 226-0996


• Rep. Heath Shuler, D-N.C. -- Phone: (202) 225-6401, Fax: (202) 226-6422

This is not some inside-the-beltway sideshow. This is the Bill of Rights. This is why we fight. So pick up your phone and start calling! We helped beat back this sort of FISA capitulation late last year and earlier this year, and we can do it again. With everyone pulling together, we can help save our Constitution. Yes we can!

****

Update: Disgusting. Why do Nancy Pelosi, Steny Hoyer and 103 of their colleagues in the Democratic caucus hate America? Call the Speaker’s office and let her know how very disappointed you are in her lack of leadership and her neglect of the Constitution.

It is now more important than ever that Barack Obama demonstrate leadership on this issue, so it is now more important than ever that you give him a call (Phone: 202-224-2854, Fax: 202-228-4260) and ask for a) his public condemnation of the bill, b) his pledge to stop it, and c) his support for a filibuster should this House version come to the Senate floor.




(cross-posted on The Seminal and Daily Kos)