Please sir, can I have some more?

I suppose you want your FISA update, don’t you?

Well, Tuesday saw the House vote out a 15-day extension of the PAA before they go the hell out of Dodge. That leaves this again up to the Senate, specifically the Senate Republicans, who now have to do a small twist (rather than a full pivot) if they want to accept for a fortnight what they just yesterday swore they would not.

I expect that Senate Republicans, with a gleeful push from some of our less bright Democrats, will agree to the extension. And though this will probably permit a period during which the Senate will consider amendments to the miserable SSCI FISA bill, the chance of any of the truly good amendments passing are slim.

If, by some miracle, any one of a number of these amendments is accepted, it might render the bill unsignable in the eyes of President Bush. Which, again, would be pretty much a victory from my standpoint—assuming Democrats are willing to say “shut up” to what will almost certainly be a pathetic whining from the White House and its spook-happy allies about how vulnerable this Democratic need for oversight and accountability would make us.

Of course, it wouldn’t make us the least bit vulnerable, as Democratic Representative from New Jersey Rush Holt explains (as transcribed by Glenn Greenwald):

[Even if the Protect America Act] expires, a perfectly satisfactory eavesdropping framework called "FISA" is already in place, along with the PAA's authorization that any programs begun under it can continue for one year after expiration.

(Greenwald also has video of Holt)

Holt even opposed the 15-day extension of the PAA, favoring its expiration if the Senate won’t take up the House version of the act (which, again, is far superior to the SSCI version). And Holt is right to do so—the PAA is a black mark on our nation’s history, not to mention a low point in the history of the supposedly Democratic controlled 110th Congress. As Greenwald reminds us:

With all the focus on the travesty of telecom amnesty, it has been easy to forget just how Draconian the Protect America Act really is, how radical are the warrantless eavesdropping powers it vested in the President. In essence, that bill allowed the Government to eavesdrop on every single international telephone call made or received by an American with no restrictions or judicial oversight whatsoever, and further empowered the Government to read every international email sent or received by an American with no restrictions or judicial oversight.

I also believe (as I previously explained) that the PAA has basically made each and every one of our e-mails fair game for warrantless surveillance—no matter where they go or who their from. In fact, the FISA regime, or lack thereof, under the PAA has likely cast so big a net that it has (as has been previously reported it would) overwhelmed our analysts with too much noise to provide anything resembling actionable intelligence on terrorism. It does, however, give this administration all the tools necessary to repress dissent, undermine a free press, and do opposition research on political opponents.

Don’t trust me. It’s already happened. Just ask Lawrence Wright. The Pulitzer Prize winning author of The Looming Tower has pretty good evidence that his phones were tapped starting in 2002. (And that was under a less permissive FISA structure.)

No, you don’t have to trust me—but why would you ever trust the Bush-Cheney Administration? As Senator Russ Feingold explains in the Greenwald piece that I link to above, “trust us” is all the assurance the White House ever gives, and all the oversight they will accept. After all that has happened in the last seven years, however, it is the last version of “oversight” that the Democrats in Congress should accept.

Nor should they have to. Practically no one in the country trusts this administration anymore. Everyone knows they have a penchant for secrecy and a complete disrespect for the rule of law. Everyone knows they are alternately venal and incompetent. And vast majorities of Americans rate the president and practically everything his government does as just plain awful.

Every time that Bush has spoken over the past three years or so, his popularity has gone down. So let him rant and wail; let him demand a FISA law with provisions that polls show a majority of Americans reject. Let the PAA expire and do so in the name of our Constitutionally guaranteed rights, have the gumption to stand up to telecom lobbyists, their bought-and-paid-for legislators, and an unpopular, lame-duck president, and I promise you good things will come. (Fail to stand up, and most likely bad things will come. Does the Democratic leadership not remember how their PAA “blink” was received last August?)

No one sided with the proprietors of the workhouse in Oliver Twist. No one thought, “That cheeky boy, why is he not happy with his one glorious bowl of gruel? How dare he make noise!”

Instead of meekly accepting another bowl PAA/FISA gruel, why not look down Pennsylvania Avenue and demand more of something much more fulfilling? Please sir, can we have some checks and balances, proper oversight, our Constitutionally guaranteed rights to privacy and due process—can we have more of those? Ask for that, instead of cowering to the politics of fear, and the American people will eat it up.


(cross-posted on The Seminal and Daily Kos)

FISA: the worst of times

As the House leadership stumbles toward tumbling on FISA—giving the Bush Administration pretty much everything it has sought in this fight—I would like to urge those who are not regular readers of Glenn Greenwald to take a look at a few recent posts—first, because they say things that I have consistently found central to this debate as I have thought and written about it over the past couple of years, and second, because they say it so damn well.

Let me give you a taste of just a few of the central points.

On Friday, after President Bush held a presser to once again dissemble and fear-monger about warrantless surveillance (I posted some video of it here), Greenwald caught the president in a rare instance of frankness:

. . . Bush is finally being candid about the real reason the administration is so desperate to have these surveillance lawsuits dismissed. It's because those lawsuits are the absolute last hope for ever learning what the administration did when they spied on Americans for years in violation of the law. Dismissal via amnesty would ensure that their spying behavior stays permanently concealed, buried forever, and as importantly, that no court ever rules on the legality of what they did. Isn't it striking how that implication of telecom amnesty is never discussed, and how little interest it generates among journalists -- whose role, theoretically, is to uncover secret government actions?

It is, I suppose, comforting to know that the president has finally cottoned to what we all knew last fall.

Greenwald’s Sunday post observed that nothing so well exemplifies our political shift to the right than the debate over FISA. We forget today just how much of a departure the original FISA act was from our previous expectations of Constitutionally protected privacy. Imagine, a secret court where only the government is allowed to present evidence and only the executive branch and small number in Congress are ever privy to the court’s findings—does that sound like America to you?

It sure didn’t to many at the time. For instance, conservative NYT columnist, and former Nixon speechwriter, William Safire, who called FISA “the most sweeping authorization for the increase and abuse of wiretapping and bugging in our history.”

The telecom industry, which, back in 1977, went by the name “AT&T,” was also opposed to the process because it compelled them to cooperate with any order from the attorney general that was affirmed by the FISC. As described by Greenwald, this law turned Ma Bell into an active arm of Big Brother. As also noted on Sunday, the fact that the history shows that telcos have always been compelled to obey a FISC-ordered warrant lays waste to Bush Administration claims that without full amnesty, telecoms would be less inclined to help the government.

The confluence of Bush’s accidental candor and Greenwald’s careful excavation of the history does then beg the bigger question: What do Bush and his black-baggers have to hide?

As this chart (again, h/t Glenn) shows, FISC almost never refuses to issue a warrant. As the history shows, with a warrant, the telecom industry is compelled to cooperate. So, what does the White House want to do—more to the point, what have they been doing—that is so outside the bounds of the super-secretive and wildly permissive original FISA law?

Actually, the answer seems fairly clear to me. There has already been evidence of pre-9/11 spying introduced in court. There have already been published accounts of the current administration using spy agencies to pursue journalists and their contacts. And, there is ample documentation that the NSA has had most of the telecoms build splitters into their systems that would send copies of every electronic communication that passed though the network to the spy agency.

What would make a FISC judge blanche? What would give an entire justice department pause—as happened back when Abu Gonzales, Andy Card, James Comey, and John Ashcroft had their little hospital room contretemps? Let’s hazard a guess: Spying on United States citizens inside the United States without going through the standard warrant process in traditional courts as outlined in the US criminal code.

I get this. Greenwald gets this. I even suspect that you, dear reader, get this. So, the question is, why doesn’t the Democratic Leadership get this? (And, of course, why doesn’t the establishment media get this—or, at least, care? But that is almost a rhetorical question at this point.)

Which bring us to Glenn’s most recent FISA-related column.

Greenwald has long ago written off the desire of most of our Congressional leaders to stand up for the rights of Americans, to stand against an increased permissiveness under a new FISA, to stand against amnesty for the telcos and, in all reality and obviousness, the Bush Administration, and to stand with the majority of Americans who oppose warrantless surveillance and telecom immunity. Some electeds actually side with Bush, some want to cover their own tracks, and many just don’t grasp why this is important (or, some just don’t grasp it at all). But what baffles Greenwald, and has baffled me and so many others in the past as it does now, is why then have the Democrats played this fight as they have? These are professional politicians—if they wanted to simply score a political point, then why have they failed so miserably?

[W]hat is somewhat baffling in all of this is just how politically stupid and self-destructive [the Democratic Leadership’s] behavior is. If the plan all along was to give Bush everything he wanted, as it obviously was, why not just do it at the beginning? Instead, they picked a very dramatic fight that received substantial media attention. They exposed their freshmen and other swing-district members to attack ads. They caused their base and their allies to spend substantial energy and resources defending them from these attacks.

And now, after picking this fight and letting it rage for weeks, they are going to do what they always do -- just meekly give in to the President, yet again generating a tidal wave of headlines trumpeting how they bowed, surrendered, caved in, and lost to the President. They're going to cast the appearance that they engaged this battle and once again got crushed, that they ran away in fear because of the fear-mongering ads that were run and the attacks from the President. They further demoralize their own base and increase the contempt in which their base justifiably holds them (if that's possible). It's almost as though they purposely picked the path that imposed on themselves all of the political costs with no benefits.

Even with their ultimate, total compliance with the President's orders, they're still going to be attacked as having Made Us Less Safe -- by waiting weeks to capitulate, rather than doing so immediately, they opened up critical intelligence gaps, caused us to lose vital intelligence, made us less safe, etc. But now, they have no way to defend themselves against those accusations because, at the end of the day, they are admitting that the President was right all along, that telecom amnesty and warrantless eavesdropping are good and important things that the President should have had all along. So why didn't they just give it to him before the law expired? It was a loss for them on every level.

I doubt there are very many Americans who expect at this point that the Democratic leadership will take a stand against the President due to any actual beliefs. But shouldn't politicians be at least a little bit shrewd about their own political self-interest? As craven and ugly as their capitulation will be, the political "strategy" they chose is actually just more self-destructive than it is anything else. Obviously, they have no real political principles, but don't they have any strategic instinct at all?

Well, at this point, Glenn can’t answer it. And neither can I.

FISA: Watch, Read, Phone

First, as if you needed it, here’s a little pep talk, courtesy of Senator Chris Dodd (D-CT), on why this FISA fight still matters.

With that impassioned defense of the Constitution still in your head, filling you with a warm and fuzzy feeling about what it means to live in an active Democracy, you then might turn your attention to this:

House Democrats who flipped their votes to support retroactive immunity for telecom companies in last week’s FISA bill took thousands of dollars more from phone companies than Democrats who consistently voted against legislation with an immunity provision, according to an analysis by MAPLight.org.



In March, the House passed an amendment that rejected retroactive immunity. But last week, 94 Democrats who supported the March amendment voted to support the compromise FISA legislation, which includes a provision that could let telecom companies that cooperated with the government’s warrantless electronic surveillance off the hook.



The 94 Democrats who changed their positions received on average $8,359 in contributions from Verizon, AT&T and Sprint from January, 2005, to March, 2008, according to the analysis by MAPLight, a nonpartisan organization that tracks the connection between campaign contributions and legislative outcomes.

. . . .

The 116 Democrats who remained opposed to telecom immunity received an average of $4,987 from the telecoms during the three-year period, the analysis showed.

. . . .

The members who voted yes on June 20 received, on average, $9,659 from the big three phone companies while those who opposed the bill received an average of $4,810, MAPLight found.

Of course, that was the House; now this egregious FISA legislation is before the Senate—often called “the millionaires’ club.” But, why should a bunch of millionaires care about a measly five thousand bucks. . . or even four or five times that? Is it really worth the relative pocket change to side with a greedy corporation and a corrupt administration over the people and the Constitution they swore to protect?

Let’s find out.

The Senate is likely to vote on cloture at about 10am (what happens after that is somewhat dependent on the progress of other pending legislation). Why not give your senators a call and tell them what you—part of “we, the people”—want: A “no” vote on cloture; should cloture pass, a “yes” vote on the Feingold/Dodd/Reid amendment to strip retroactive immunity from the legislation; and, should that specific amendment fail, a determined effort to stop this bill at all costs.

And, while you’re at it, phone Senator and possible next president Barack Obama and demand the same things.

You only have a little time, so pick up that phone!


(cross-posted on guy2k and The Seminal)

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)

NYT calls BS on the FISA “compromise”

Here’s the skinny: When you see the words “Republican” and “compromise” in the same phrase, it should pretty much tell you all you need to know about a piece of pending legislation. Republicans don’t actually believe in compromise; either that, or they don’t understand what it means. The GOP, as it now stands, either gets its way, or, if it doesn’t, demands a recount or a do-over. Politics for this bunch is both blood sport and a zero sum game—they don’t play nice, and they don’t meet you half way. That’s been the case for the better part of the last fifteen years. . . at least.

That’s all you need to know, that’s all Democrats in Congress should need to know, but I’m going to tell you more.

In recent weeks, word has leaked out of a compromise on new FISA legislation drafted by Republican Senator Kit Bond (MO).

Republican.

Compromise.

This “compromise” [cough] has been mostly the stuff of rumor, so, even though I fancy myself a close watcher of things FISA, I have tried to keep my powder dry. Until Kit and his colleagues put it on paper—paper that we all could see—I figured my outrage would just be a fusillade of concerned citizen energy expended against a barricade of plausible deniability. At the time of this writing, nothing about this Bond plan has been made any more concrete, official, or real, but the faux-compromise is apparently real enough for the New York Times to sound the alarm. . . and so I will, too.

The lead editorial in today’s Times spells it out pretty simply:

In the waning months of his tenure, President Bush and his allies are once again trying to scare Congress into expanding the president’s powers to spy on Americans without a court order.

This week, the White House and Democratic and Republican leaders on Capitol Hill hope to announce a “compromise” on a domestic spying bill. If they do, it will be presented as an indispensable tool for protecting the nation’s security that still safeguards our civil liberties. The White House will paint opponents as weak-kneed liberals who do not understand and cannot stand up to the threat of terrorism.

The bill is not a compromise. The final details are being worked out, but all indications are that many 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.

I will add a rather important third aim: they want to give a legal shield to themselves.

Sure, Republicans (and, sadly several Democrats, too) like to help out their corporate cronies, but if the Bush-Cheney team truly wanted to help the telecoms defend themselves in court, all they would have to do is provide the records and correspondences sought by lawyers on both sides of the surveillance lawsuits. If the telecommunications companies can show that they were ordered by the Bush Administration to wiretap without a warrant, or if they could show that they were deceived by the administration as to the existence of a warrant or the legality of the spying, then (warning: IANAL) the liability of the companies would be severely limited or might disappear altogether.

But the White House and its enablers aren’t really concerned about their pals in the private sector—not that much. Much more important is 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.

The “compromise” that Kit crafted has a federal district court deciding questions of retroactive telecom immunity—however, the court would be required to decide the matter based on a presidential “certification” that telcos were told that the spying was legal.

No real public hearing, no evidence read into the public record, just a piece of paper with George Bush’s John Hancock saying “trust us.” It guarantees the lawbreakers—public and private—will get off scot free, and allows the Bush Administration to say it was all legal “because we said so.” It neither helps expose past transgressions nor constrains future ones.

The (theoretical) bill has other big problems:

It gives the government too much leeway to acquire communications in the United States without individual warrants or even a showing of probable cause. It greatly reduces judicial review, and it would remain in force for six years, which is too long.

I could throw out some inside baseball terms like “basket warrants” (it allows them) and “minimization” (it doesn’t require it), but suffice it to say that this proposal is neither a good fix for FISA or a legitimate compromise.

Besides—and the Democrats that hold the majority in both houses of Congress need to hear this—there is no compromising the Constitution.

That could and maybe should be the final word, but I want to include a few of the final words from the NYT editorial, because some people need to hear this, too.

At a minimum, the House speaker, Nancy Pelosi, and the Senate majority leader, Harry Reid, should oppose FISA expansion and pledge to revisit it next year. If any significant changes are going to be made, they should be made under the next president.

There are clear differences between the candidates. Senator John McCain, who is sounding more like Mr. Bush every day, believes the president has the power to eavesdrop on Americans without a warrant.

Senator Barack Obama opposes immunity and voted against the temporary expansion of FISA. We hope he will show strong leadership this time. He might even take time off from the campaign to vote against the disturbing deal brewing in the back rooms of Congress.

* * * *

I might have been keeping my powder in its flask, but others have been more on the ball. Lovers of our Constitution from a diverse set of groups are organizing to show our elected officials where we stand. Please read this Greenwald post for some important background and more information on how you can help.


(cross-posted on Daily Kos and The Seminal)

Too pissed to blog

I really thought that with the elevation of Democrats to the leadership of both houses of Congress that the worst of my politicocentric rages were behind me—but today, my cardiovascular system and I discovered that I was wrong.

WASHINGTON, Oct. 8 — Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.

Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval.

Say what??? Are you fuckin’ kidding me? Have we learned nothing. . . again? Did the Democratic leadership fail to read the editorials back in August that shot their cavalier strategizing square through the strangely missing moral core? Did they fail to read my blog???

Sadly, everything—absolutely everything—that I, the New York Times, the Washington Post and Rep. Jerrold Nadler (D-NY) said back in August still applies (please take a moment to click back to that post—I can’t bear to write it out again). And that leaves me seething to point of crimson face and bulging eyes.

Today, even the previously resolute and admirable Rep. Nadler seems to be showing his jelly-leg.

Mr. Nadler said that he was worried the Senate would give too much ground to the administration in its proposal, but that he was satisfied with the bill to be proposed on Tuesday in the House.

“It is not perfect, but it is a good bill,” he said. “It makes huge improvements in the current law. In some respects it is better than the old FISA law,” a reference to the foreign intelligence court.

Not perfect, in this case, is not good enough. . . and not at all good. Calling the proposal an improvement on the current law is like calling a stake through the heart an improvement on water-boarding followed by a stake through the heart. I will remind everyone, including Mr. Nadler, that all the Democrats have to do (like all they had to do in August) is NOTHING. This colossal capitulation mistake is set to expire around Valentine’s Day—this no time to pen another love letter to the Bush Administration and its cowardly pals in Congress.

Jerrold Nadler is my Representative, and I plan to give him a piece of my mind. I urge all of you to do the same with the men and women that claim to represent you. . . especially if he or she is a Democrat. (I can’t believe I just wrote that. . . I can’t believe I just had to write that.)

Remind them that you support moral representatives that uphold their oath to defend the Constitution against all enemies, foreign and domestic—including the Bush/Cheney Administration.

Remind them that our most basic liberties hang in the balance. Tell them that you will stand by them if they stand strong themselves. Teach them what you and civil liberties experts already know about this purported FISA compromise:

‘This still authorizes the interception of Americans’ international communications without a warrant in far too many instances, and without adequate civil liberties protections,” said Kate Martin, director of the Center for National Security Studies, who was in the group that met House officials.

Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union, said she was troubled by the Democrats’ acceptance of broad, blanket warrants for the security agency rather than the individualized warrants traditionally required by the intelligence court.

“The Democratic leadership, philosophically, is with us,” Ms. Frederickson said. “But we need to help them realize the political case, which is that Democrats will not be in danger if they don’t reauthorize this Protect America Act. They’re nervous.

“There’s a ‘keep the majority’ mentality, which is understandable,” she said, “But we think they’re putting themselves in more danger by not standing on principle.”

Indeed, they are putting us all in danger. Let we the people try not to let that happen.

(Gosh, I guess that you just can’t really be too pissed to blog—who knew?)


Update: Apparently things are at least a little grayer than the Gray Lady would have us believe. According to Glenn Greenwald and Christy Hardin Smith, there is much to feel good about in the House version of this legislation. Christy is urging folks to call their Reps in support of the work of the House Progressive Caucus in restoring some safeguards and adding some new requirements to the FISA process.

Serves me right to go on record after only reading the paper of record.

Of course, the proof is in the endgame, which will involve the Senate and some serious backroom bullying and front room grandstanding by the likes of GW, Dick, and Mike McConnell. I am still uncomfortable with the idea of “umbrella warrants,” and, frankly, the whole idea of a secret FISA court strikes me a singularly anti-American, but, from a lobbying and calling your Representatives standpoint, perhaps it is best we keep our powder dry for the moment, and call to support what we like about this Conyers-Reyes proposal.


(cross-posted on guy2k and Daily Kos)

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 thankyoudodd.com 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)

Intel abuse: as if you needed more evidence

For all you scared, greedy, stupid, or cynical Representatives and Senators who voted for the FISA revisions last month, here’s a little something that got lost in the Friday Olympics-vs.-sex-scandal news dump:

WASHINGTON — The Federal Bureau of Investigation said Friday that it had improperly obtained the phone records of reporters for The New York Times and The Washington Post in the newspapers’ Indonesia bureaus in 2004.

Robert S. Mueller III, director of the F.B.I., disclosed the episode in a phone call to Bill Keller, the executive editor of The Times, and apologized for it. He also spoke with Leonard Downie Jr., the executive editor of The Washington Post, to apologize.

F.B.I. officials said the incident came to light as part of the continuing review by the Justice Department inspector general’s office into the bureau’s improper collection of telephone records through “emergency” records demands issued to phone providers.

The records were apparently sought as part of a terrorism investigation, but the F.B.I. did not explain what was being investigated or why the reporters’ phone records were considered relevant.

While these cases probably didn’t fall under the direct purview of FISA/FISC (though we really have no way of knowing), it is yet another example of Bush Administration spying on journalists (Lawrence Wright, Christiane Amanpour). And, it should serve as a yet another wake-up call to lawmakers and citizens alike, reminding them that the Bush/Cheney obsession with warrantless surveillance has little to do with the legal pursuit of terrorists, and a lot more to do with the suppression of information and dissent.

The FBI now says that they have corrected the problem that led to this latest known incidence of illegal spying, but as both the New York Times and the Washington Post make clear, the Department of Justice has continued to reenact the same sorts of abuses, just under a different name. Without aggressive congressional oversight and investigation, the arrest and prosecution of lawbreakers, and a rewriting of a decade’s worth of Constitution-eroding laws, there are simply no guarantees that this sort of abuse won’t happen again—indeed, there is no real guarantee (beyond the occasional and absurd “trust me”) that the abuse has ever stopped. Be it the Patriot Act (I & II), the Military Commissions Act, the Protect America Act, or the recent FISA capitulation, Congress has repeatedly chosen the coward’s path—synonymous with the White House’s path—rather than exercise its rights as a coequal branch of government.

I have argued in the past that if we know of illegal administration spying on journalists and other non-suspects, and we know of pre-9/11 surveillance, then we for all intents and purposes know that these are not programs designed to fight some foreign terrorists threat. I have often wanted to ask Democratic leaders if they realize that their phone calls and e-mails are being swept up in Bush Administration dragnets—and then I want to ask them if they care.

You see, while the New York Times and the Washington Post have their lawyers to turn to when they are the victims of intelligence abuse (and the lawyers have been brought in for this current case), most of us only have our elected representatives to watch out for our Constitutionally guaranteed rights. If Congressional leaders can’t be convinced of the gravity of this situation, we’re all screwed.

And that’s a gold medal scandal.


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

WaPo gets it 25% of Half Right

It started about thirty hours ago, or so, when I read a Washington Post article by Walter Pincus where Attorney General Gonzales sought to justify the Federal Government’s gathering of domestic telephone records by pulling a three-decades-old court case, Smith v. Maryland, out of his ass (without confirming or denying the existence of said ass, of course).

Gonzales would not confirm the details of a May 11 story in USA Today, which said the National Security Agency had collected phone records of millions of Americans and analyzed them to search for terrorism plots. But Gonzales told reporters that, under the Smith v. Maryland ruling, "those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records."

Let’s skip, for the time being, that Pincus’s summarizing the NSA program as one where the NSA analyzed the records for “terrorism plots” is kind of a stretch (go back and read the original story. . . I linked to it earlier), and let’s instead focus on the fact that this entire page A6 article exists only to explain Abu Gonzales’s point of view, without the hint of an idea that it might not be indisputable fact.

The problem was, I knew it wasn’t fact. I remembered reading about Smith v. Maryland the day the NSA story broke, and I remembered reading that it didn’t apply. I remembered, but I couldn’t find it anywhere to provide a proper citation, so I let it go, hoping someone else in the blogasphere would pick up the ball.

Well, Wednesday morning, Think Progress did.

This is a classic case of misdirection. The issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it’s legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.

Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date:

1. The Stored Communications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland.

2. The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: 1) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or 2) the government obtains a certification from the Attorney General that the program is legal under FISA. According to the USA Today article, neither action was taken.

To reiterate, Wednesday’s WaPo article says none of this. Pincus lets the AG’s assertions go unchallenged. Did it not occur to seasoned reporter like Pincus that maybe Abu Gonzales—the author of many a signing statement and torture memo—has a casual relationship with the law? Would it have been so hard for Pincus or his editors to do a little checking before they went to press?

Well, today, on page A8, Pincus and the Post try to make amends. . . sort of. Without acknowledging that perhaps Think Progress or someone else in the ‘sphere tipped him off, Pincus first reiterates Gonzo’s garbage for a couple of graphs before turning to G. Jack King of the National Association of Criminal Defense Lawyers, who first says Gonzales is right about the Fourth Amendment before getting to the fact that the Government’s actions violate the 1986 Stored Communications Act.

The article then turns to Kate Martin, director of the Center for National Security Studies, to state something you think would be obvious, but given the times, I guess it bears saying:

The government is bound by the laws Congress passes, and when the attorney general doesn't even mention them, it is symptomatic of the government's profound disrespect for the rule of law.

(I know there is more to the quote, but I can’t help but feel the Post needed a quote to buttress the idea that “The government is bound by the laws Congress passes.”)

The article then gives the next four paragraphs to a refutation of King’s opinion—essentially reasserting the point made by the Attorney General. There is no mention in either WaPo article of the 1978 FISA statute.

So, to recap: Two articles. Thirteen paragraphs making the point asserted by Alberto Gonzales. Two paragraphs (one-and-a-half, really) positing that what the AG says is not relevant.

In sum: one really lousy job of reporting.


(Cross-posted at Daily Kos)

A heartbreaking work of staggering cynicism

There have been many terrible, abhorrent, un-American, unacceptable, and unconstitutional laws passed over the last seven-and-a-half years (The Patriot Act, the AUMF, and the Military Commissions Act come immediately to mind), but today’s vote to codify the Bush Administration’s illegal surveillance program could top them all.

I have many reasons to feel that way; only one of which is the red raw emotion and strong sense of betrayal I feel as a Congress supposedly controlled by Bush’s opposition bends over backwards to give a president with a record low approval rating everything he could have ever wanted—even after so many of the Democrats’ own rank and file worked so hard for so long to fight the villainous activities of Republican rule.

As Senator Russ Feingold has pointed out, there are numerous ways in which this bill seriously erodes our Constitutional protections against unlawful search and seizure. The law provides little protection against reverse targeting, no prohibition of bulk collections, a giant loophole that allows intelligence agencies to spy without FISC approval virtually without end, no limits on the use of illegally obtained evidence in court, and few protections for citizens inside the US that correspond with parties outside of our borders.

As I have written in the past, the debate about changes to FISA has gone forward with little respect for what should now be common knowledge: The Bush Administration began its expansion of warrantless domestic surveillance within weeks of taking office—seven months before the attacks of 9/11/01. This is almost certainly (you know what, never mind “almost”—it is certainly) a program or collection of programs designed with an intent other than protecting America from foreign terrorists, and likely has made the fight to shield America from future violent acts more difficult.

There have been published accounts of how the Bush Administration used spy agencies to investigate journalists and their contacts. I would deem it likely that the White House used illegally obtained information to target Democratic politicians and civil organizations. It is even believed that the hospital contretemps between John Ashcroft, Andy Card, James Comey, and Alberto Gonzales was provoked by White House orders to illegally use intelligence agencies to spy on American citizens inside the US without a court order.

Also noted in the past, a majority of Americans oppose retroactive immunity and warrantless domestic surveillance. Democrats who fall in with the Bush Administration today are actually not only stepping on the Constitution, they are stepping across the line that divides the will of the American people from the interests of wealthy telecom executives and a political party that is bracing for record losses this November.

Many Democrats will also vote today to side with Bush and Cheney against the judgment of what’s left of this country’s independent judiciary, which, almost every step of the way, has tried to uphold the Fourth Amendment, force adherence to the original FISA restrictions, and insist that the White House turn over evidence explaining the timing and scope of their illegal spying endeavors.

Congress and the President will also be ignoring the advice of countless constitutional scholars who, like Jonathan Turley, have labeled this bill an act of “political convenience—not compromise” that shows “not an ounce” of respect for the Fourth Amendment. Democrats today will also turn a deaf ear to the calls of noted Americans such as Studs Terkel, who, having experienced nefarious government repression himself, has challenged the leadership to let other Americans who believe that they have had their rights abridged have their day in court.

And it is that day in court, and the very real probability that with the passage of this devilish capitulation none of us will have one, that has me thinking this the very darkest day of a very dark decade. Without a loyal opposition loyal to the interests of the American people, or a body of elected officials loyal to the oath that they took to protect and defend the Constitution, without a professionally (as opposed to ideologically) staffed Justice Department loyal to the rule of law instead of to the man that approved their hires, it is only through concerned citizens and through the civil courts that any of us can hope to uncover what really took place behind the thick, green glass of the Oval Office or inside the slick marble corridors of power that crisscross the Capitol.

If we are ever to know the who, what, where, when, and how of the Bush Administration’s illegal domestic spying program, we will need the civil suits currently making their way through the federal courts to go forward. It is the cessation of this process—first, foremost, and forever—that drives the urgency Bush and his enablers convey every time they address FISA. Indeed, President Bush has vowed to veto any bill that does not include retroactive immunity for the telecoms, and, by fiat, for him and his staff, too. He could get every other radically permissive spy tool he has ever sought, but without retroactive immunity, he has no interest in making this bill law.

And with the granting of this immunity by his own presidential pen, with a big thank you to Democrats Jay Rockefeller, Steny Hoyer, and many, many more, that Bush will make sure that American citizens’ options for justice will be severely and permanently limited. While any of the other aspects of this law could, theoretically, be revisited by the next Congress—while any of the other egregious laws passed during the Bush presidency can be (again, theoretically) revised, reformed, or overturned by a future Congress working with a different executive—once the government grants immunity, it cannot move to take it back. Retroactive immunity might be permissible, but retroactive criminalization is prohibited by the Constitution.

It is that irreversibility, that unredeemable point, that has me so inconsolably bereft today. Though looking up the page forbids me from saying that I am left without words, looking forward to an America without as many Fourth Amendment protections or without the same respect for the law that existed prior to this vote does leave me without any good explanation. It is a vote that can only be seen through the lens of beltway myopia, a political calculation born of cynicism and hubris. Democratic leaders might think that they are moving forward, putting a difficult national security issue behind them before the November election, but this is a giant step back, a closing of the door on years of actions that so badly need to be brought out into the open, without so much as a glimmer of hope.


(cross-posted on The Seminal and Daily Kos)