FISA and SOU: rule of law v. lame duck

January 28th, 2008

We have a sort of gestalt thing happening in Congress, finally … a culmination of all our hard work on blogs and lists [and thanks to Senator Dodd.] We actually seem to be making a difference — although the odds, as always, are against us. CALL/FAX today, even if you’ve done it before. My own Dem moderate Senator is in the obstructionist position with this … she needs to hear again and again that she wasn’t sent there to play games, but to UPHOLD THE CONSTITUTION.

Still, the Congress seems to suddenly realize we’re out here and we’re PISSED.

Dubby has threatened to veto any attempt to change the FISA plan, he wants it as is, permanent and even bigger. And … evidently … he’s still deluded enough to think we CARE what he wants. He will deliver his State of the Union tonight calling Dems obstructionists putting the country in danger, even though letting the program sit in limbo will not have any real consequence.

George is picking his reality — I’m picking mine; I’ll be missing his grand [and last] estimate of our well being because I’m going to hear John Edwards, campaigning in the nearest city. I want to hear sane conversation about accountability and reform … whatever occurs on the toob tonight will be the last tired wail of a loon.

I’ll report on John tomorrow.

Here’s the current state if our push for the return to rule of law … and you are NEEDED to let the players know your concerns, even if you’ve done it before. We’ve got traction … push harder!

Last piece is a rant on the SoU … it resonates big time for me, perhaps you too.

Jude

FISA Action: Calls And FAXes Needed
Christy Hardin Smith, FireDogLake
January 28, 2008

Quick reminder to everyone: keep those calls and FAXes coming to your Senators. Tell them to stand up for the rule of law and for the balance of powers between Congress and the executive branch — and to vote NO on Sen. McConnell’s cloture motion today.

Glenn has background on why this is important — and the games the Bush Administration is playing (and on how gullible Mike Allen is with an utter failure to fact check):

…The administration explicitly admits that the President won’t allow an extension because he wants to repeat the success of last August — when Congressional Democrats capitulated to every Bush demand because they were told they had to act within a matter of days, i.e., before their recess, lest they cause us all to be killed by The Terrorists.

“They need the heat of the current law lapsing to get this done,” said a senior administration official, courteously granted anonymity by The Politico’s Allen to issue these threats.

This veto threat is one of the President’s most brazen acts ever, so nakedly exposing the fun and games he routinely plays with National Security Threats. After sending Mike McConnell out last August to warn that we will all die without the PAA, Bush now says that he would rather let it expire than give Congress another 30 days. He just comes right out and announces, then, that he will leave us all vulnerable to a Terrorist Attack unless he not only gets everything he wants from Congress — all his new warrantless eavesdropping powers made permanent plus full immunity for his lawbreaking telecom partners — but also gets it exactly when he wants it (i.e., now — not 30 days from now)….

We have a President, not a king — and in this nation, the rule of law is sovereign, not a petulant little man and his behind-the-scenes manipulative number 2, bent on creating a unilateral executive empire borne of a grudge nursed since the Nixon Administration. Just say no.

True leaders understand the need to balance civil liberties concerns with national security needs. They are not, nor should they be, mutually exclusive. Let’s get to work!
[... open link to finish article]

The FISA Follies, Redux
The New York Times Editorial
Sunday 27 January 2008

The Senate (reportedly still under Democratic control) seems determined to help President Bush violate Americans’ civil liberties and undermine the constitutional separation of powers. Majority Leader Harry Reid is supporting White House-backed legislation that would expand the administration’s ability to spy on Americans without court supervision and ensure that the country never learns the full extent of Mr. Bush’s illegal wiretapping program.

The 1978 Foreign Intelligence Surveillance Act, or FISA - which Mr. Bush decided to ignore after 9/11 - requires a warrant to intercept telephone calls and e-mail messages between people in the United States and people abroad.

It needed updating to keep pace with technology, and the technical fixes were included in a bill that Congress passed last summer. The problem was that Mr. Bush managed to add measures that sharply undercut the court’s role in monitoring eavesdropping. Fortunately, lawmakers gave them an expiration date of Feb. 1.

The House has passed a reasonable new bill - fixing FISA without further endangering civil liberties. But Mr. Bush wants to weaken FISA as much as he can. And the Senate leadership has been only too happy to oblige.

With the help of Republican senators and the misguided chairman of the Intelligence Committee, Jay Rockefeller, the White House got a bill that, once again, reduces court supervision of wiretapping. It also adds immunity for telecommunications companies that cooperated with the illegal spying.

Mr. Bush says without amnesty, the government won’t get cooperation in the future. We don’t buy it. The real aim is to make sure the full story of the illegal wiretapping never comes out in court.

Mr. Reid - who is still falling for the White House’s soft-on-terrorism bullying - set up deliberations in a way that ensured that a better Judiciary Committee version of the bill would die a procedural death and that the Intelligence Committee bill would pass.

The Judiciary bill died this week, with the help of other bullyable Democratic senators like Mr. Rockefeller, Claire McCaskill, Mary Landrieu and Ben Nelson. The Republicans repaid them by announcing they would block any further attempts to reach a compromise.

It is now up to the House to protect Americans’ rights. Mr. Bush has already started issuing the ritual claims that if his bill is not passed instantly, Osama bin Laden will be telephoning his agents in the United States and no one will know. Let us be clear, Mr. Bush has always had the authority to order emergency wiretaps - and get court approval after the fact. That has never been the problem with FISA.

The House should vote to extend last summer’s flawed rules for at least 30 days and go on recess, forcing the Senate to do the same thing, and then bring the whole matter to a conference committee. There will then be plenty of time for a real debate.

Lawmakers and the rest of the nation should bear this in mind: Mr. Bush’s version of this law does not make intelligence-gathering more robust. Opponents like Senators Christopher Dodd and Patrick Leahy want to spy on Al Qaeda, too. They’re just not willing to do it in a way that undermines the very democracy that the spies, Congress and the president are supposed to be protecting.

More Disruptions to The Cheney/Rockefeller FISA Plan
Glenn Greenwald, Salon
Saturday, January 26, 2008

Regardless of the ultimate outcome of the FISA and telecom immunity conflict, there is something quite unique about how things have proceeded that I think is worth noting. Telecom immunity and warrantless eavesdropping powers are exactly the types of issues that normally generate very little controversy or debate. Identically, the bill advocated by Dick Cheney, Jay Rockefeller and Mitch McConnell is the type of bill that is normally passed, quickly and quietly, by Congress without any trouble. That isn’t happening this time, and it’s worth looking at why that is. [emphasis added - j]

The establishment media has virtually ignored these matters from the beginning. Most establishment-serving pundits who have paid any attention — the David Ignatiuses and Joe Kleins and Fred Hiatts — have done so by advocating, as usual, the Establishment position: retroactive immunity and warrantless eavesdropping powers are the right thing to do. Although there is no citizen-constituency whatsoever crying out for telecom immunity or new warrantless eavesdropping powers, the forces behind those provisions are the ones which typically dictate what Congress does: namely, the largest corporations and their lobbyists, who have been working, as always, in the dark to ensure that the law they want is enacted.

That’s typically the way Washington works — the most significant laws are seamlessly enacted with little real debate or attention, driven by corporations and lobbyists working in secret with Senators, cheered on by the Serious media pundits, with bipartisan pools of lawmakers silently and obediently on board. And once those forces line up behind any measure, it is normally almost impossible to stop it — not just stop it, but even disrupt it at all. That’s the insulated Beltway parlor, virtually impervious to outside influences, least of all the opinions of the
citizen-rabble.
* * * * *

All of those standard Beltway forces are squarely lined up behind telecom immunity and new eavesdropping powers, and yet, things are not proceeding smoothly for them at all. Back in December, Harry Reid, Jay Rockefeller and Mitch McConnell scheduled just a couple of days for the FISA debate because they assumed that was all that would be needed to deliver quickly and quietly to the President everything he demanded.

But when Chris Dodd and others impeded that plan by obstructing and filibustering, Reid just cynically assumed that once Dodd was out of the presidential race, he would cease with the “grandstanding” and allow the Senate to function the way it is supposed to: collegially delivering to the Establishment what it wants, without disruption.

But Dodd’s commitment to impede these corrupt and lawless measures is clearly authentic and was not grounded in cynical political concerns — as was obvious to anyone uninfected by the jaded Beltway Virus. Dodd’s willingness to join Russ Feingold in single-mindedly pursuing what are considered extreme and alienating steps in the Senate to stop this bill — holds, filibusters and withholding of unanimous consent agreements — along with Dodd’s increasingly eloquent and relentless advocacy on behalf of the Constitution and the rule of law, has disrupted the Cheney/Reid/Rockefeller plan just enough so that it may now unravel altogether.

Dodd has been in the Senate for 24 years. As he will the first to acknowledge, engaging in filibusters and obstruction and defiance of his party’s leadership are things he has almost never done. Dodd isn’t Russ Feingold. He has been the picture of the establishment Senator in the party’s “liberal” wing, rarely deviating and almost never standing alone to oppose the party leadership. So what has changed? Why has he been so willing so tenaciously to pursue this fight — even in the face of overt though anonymous threats that he could alienate his party’s leadership and lose influence as Banking Committee Chairman if he persists?

Dodd himself provided the answer in his Senate floor speech (h/t Kitt):

I’ve promised to fight those scare tactics with all the power any one senator can muster. And I’m here today to keep that promise. For several months now, I’ve listened to the building frustration over this immunity and this administration’s campaign of lawlessness. I’ve seen it in person, in mail, online — the passion and eloquence of citizens who are just fed up. They’ve inspired me more than they know.

That is exactly what happened. When the administration first demanded retroactive immunity in the wake of the passage of the Protect America Act, nobody was talking about that issue outside of blogs and grass-roots and civil liberties organizations — the roster of annoying citizen-groups that are typically ignored. But the pressure built; it became increasingly intense and relentless; it found a political official in Chris Dodd willing to ride it; and it unquestionably has altered the course of how all of this has played out. As a result, even the three presidential candidates have become increasingly attentive to it — not enough, to be sure, but more than before. Strictly in response to calls from blog readers, John Edwards issued a series of statements against telecom immunity this week, even sending out a mailing to his email list solely on this topic, despite the fact that he is in the middle of a critical primary fight in South Carolina. Both Bill and Hillary Clinton have been making commitments to increase their involvement, with Hillary even vowing to speak out against it today. This week, Barack Obama also made his most emphatic statement to date: “I strongly oppose retroactive immunity in the FISA bill. . . . That is why I am proud to stand with Sen. Dodd and a grassroots movement of Americans who are standing up for our civil liberties and the rule of law.”

The lead Editorial in The New York Times this morning is devoted to lambasting Harry Reid and Jay Rockefeller for their active efforts to ensure passage of the Cheney/Rockefeller FISA bill. After failing to do so the first time around, the House in November passed a decent bill that contains no immunity and has numerous safeguards on eavesdropping powers, and — at least as of now — appears unlikely to capitulate. The only reason any of that happened is because enough citizens were sufficiently intense and active to catapult this issue to the fore and prevent the quiet and easy enactment of telecom immunity and new warrantless eavesdropping powers. In the absence of that, this would have all been over with, easily and without trouble, back in December.
* * * * *

There is never any shortage of super-sophisticated cynics to come along and say how none of this matters, how it’s so pitifully naive to think that any difference can ever be made, how the System is so Corrupted and the Deck So Stacked Against Us that everything is doomed and defeat is the inevitable option. And there is an element of truth to the premises of that defeatist mindset. The principal reason blogs exist, after all, is precisely because all other institutions intended to provide some adversarial check on what our government does — the establishment media, the “opposition party,” the Congress — typically do the opposite: they serve as enablers of it rather than checks on it. That’s all true enough.

But what incidents such as this one conclusively demonstrate is that it is always possible, if enough citizen intensity is mustered and the right strategy is formulated, for citizens to disrupt and defeat the best-laid plans of our corrupt political establishment. There’s a comfort and temptation in denying that truth. Those who insist that defeat is inevitable and All is Lost are relieved of the burdensome task of trying. But defeat occurs because the right strategy isn’t found, not because it is inevitable.

As always, the significance of what has occurred here shouldn’t be overstated. The only reason Senate Democrats became angry on Thursday is because Republicans actually refused to allow Democrats to capitulate, as they were ready and eager to do. Senate Republicans blocked Democrats from caving in completely to Bush because they didn’t want this issue resolved.

They want to ensure that Bush, in Monday’s State of the Union address, can accuse Senate Democrats of failing to act on FISA, and thus attack and mock them as being weak on national security and causing the Terrorists to be able to Slaughter Us All.

And, rather pitifully, some Democrats are shocked — so very upset — that, yet again, their demonstrated willingness to give the Republicans everything they demanded has not prompted a Good, Nice, Courteous Response. “We did everything you told us to do. Why are you being so mean and unfair?” That sad posture is what led even Jay Rockefeller apparently to announce that he will vote against cloture on his own bill.

Worse, even if Democrats prevent the Republicans’ cloture vote on Monday, that will mean we’ll just be right back to where we were before that happened: with a series of votes that will almost certainly end in the Senate with some form of retroactive immunity and vastly expanded warrantless eavesdropping powers. So it isn’t as though there is some victory here yet that is complete or even all that meaningful.
* * * * *

Still, it is very worth doing what’s possible to encourage Democrats to sustain a filibuster on Monday and prevent a cloture vote on the Senate Intelligence Committee bill, which will mean that there will be no new law in place before the Protect America Act expires (February 2). Bush will then have to choose — at least as Reid is boldly promising — between some short-term extension of the Protect America Act (with no immunity) or have the bill lapse altogether.

Even just a two-week or one-month extension will allow more time to marshall the opposition to telecom immunity and a new FISA bill and to do what’s possible to encourage the House to stand firm behind their bill — in exactly the way that the Dodd Delay in December prevented quick and easy resolution. The longer this drags on without resolution, the more possible it is to push the opposition to a tipping point, and sometimes unexpected developments or even some luck (such as McConnell’s overplaying his hand on Thursday) can prevent it all from happening.

As the events of the last two months demonstrate, if citizen opposition is channeled the right way, it can make a genuine difference in affecting the course of events in Washington. Defeating telecom immunity will keep alive the lawsuits that will almost certainly reveal to some extent what the Government did in illegally spying on Americans over the last six years or, at the very least, produce a judicial adjudication as to its illegality. And, in turn, the effects from that could be extremely significant. Because victories are so rare, it’s easy to get lulled into
believing that none of these campaigns are ever effective and that citizens can never affect any of it, which is precisely why it’s so important to remind ourselves periodically of how untrue that proposition is.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy”, examines the Bush legacy.

The End of Privacy
Elliot Cohen, TruthDig via CommonDreams
Friday, January 25, 2008

Amid the controversy brewing in the Senate over Foreign Intelligence Surveillance Act (FISA) reform, the Bush administration appears to have changed its strategy and is devising a bold new plan that would strip away FISA protections in favor of a system of wholesale government monitoring of every American’s Internet activities. Now the national director of intelligence is predicting a disastrous cyber-terrorist attack on the U.S. if this scheme isn’t instituted.

It is no secret that the Bush administration has already been spying on the e-mail, voice-over-IP, and other Internet exchanges between American citizens since as early as and possibly earlier than Sept. 11, 2001. The National Security Agency has set up shop in the hubs of major telecom corporations, notably AT&T, installing equipment that makes copies of the contents of all Internet traffic, routing it to a government database and then using natural language parsing technology to sift through and analyze the data using undisclosed search criteria. It has done this without judicial oversight and obviously without the consent of the millions of Americans under surveillance. Given any rational interpretation of the Fourth Amendment, its mass spying operation is illegal and unconstitutional.

But now the administration wants to make these illegal activities legal. And why is that? According to National Director of Intelligence Mike McConnell, who is now drafting the proposal, an attack on a single U.S. bank by the 9/11 terrorists would have had a far more serious impact on the U.S. economy than the destruction of the Twin Towers. “My prediction is that we’re going to screw around with this until something horrendous happens,” said McConnell. So the way to prevent this from happening, he claims, is to give the government the power to spy at will on the content of all e-mails, file transfers and Web searches.

McConnell’s prediction of something “horrendous” happening unless we grant government this authority has a tone similar to that of the fear-mongering call to arms against terrorism that President Bush sounded before taking us to war in Iraq. Now, Americans are about to be asked to surrender their Fourth Amendment rights because of a vague and unsupported prediction of the dangers and costs of cyber-terrorism.

The analogy with the campaign to frighten us into war with Iraq gets even stronger when it becomes evident that along with the establishing of American forces in Iraq, the cyber-security McConnell is calling for was, all along, part of the strategic plan, devised by Dick Cheney and several other present and former high-level Bush administration officials, to establish America as the world’s supreme superpower. This plan, known as the Project for the New American Century, unequivocally recognized “an imperative” for government to not only secure the Internet against cyber-attacks but also to control and use it offensively against its adversaries. The Project for the New American Century also maintained that “the process of transformation” it envisioned (which included the militarization and control of the Internet) was “likely to be a long one, absent some catastrophic and catalyzing event-like a new Pearl Harbor.” All that appears to be lacking to make the analogy complete is the “horrendous” cyber-attack-the chilling analog of the 9/11 attacks-that McConnell now predicts.

Apparently, the Bush administration had hoped to continue its mass surveillance program in secret, but as many as 40 civil suits were filed against AT&T and other telecoms, threatening to blow the government’s illegal spying activities wide open. Unable to have these cases dismissed in appellate court by once again playing the national-security card, the administration drafted and tried to push through Congress a version of the FISA Amendments Act of 2007 that gave retroactive immunity to telecom corporations for their assistance in helping the government spy en mass on Americans without a court warrant. The administration’s plan was to use Congress’ passage of this provision of immunity to nullify any cause of civil action against the telecoms, thereby pre-empting the exposure of the administration’s own illegal activities.

Two versions of the FISA bill emerged, one from the Senate Intelligence Committee drafted largely by Cheney himself, which contained the immunity provision, and another from the Senate Judiciary Committee that did not contain the provision. Although Senate Majority leader Harry Reid inauspiciously chose the former to bring to the Senate floor, the bill was surrounded by much controversy. There had been well organized grass-roots pressure to stop it from passing, and the House had already passed a version that did not include the retroactive immunity provision. Thus, in the face of a filibuster threat by Sen. Chris Dodd (D-Conn.), Reid postponed the discussion until the January 2008 session.

Now Reid has tried to put off the FISA Amendments Act once again by asking Republicans to extend, for one more month, the Protect America Act of 2007, an interim FISA reform act that is due to sunset in February. However, Cheney has urged Congress to pass his version of the FISA Amendments Act now. “We can always revisit a law that’s on the books. That’s part of the job of the elected branches of government,” Cheney said. “But there is no sound reason to pass critical legislation … and slap an expiration date on it.”

Cheney’s point about the possibility of later revisiting the FISA Amendments Act after it becomes law may foreshadow replacing it in the coming months with a law based on McConnell’s plan, which is due to emerge in February. This would mark a gradual descent into divesting Americans entirely of their Fourth Amendment right to privacy-first by blocking their ability to sue the telecoms for violating their privacy and then by giving the government the same legal protection. After all, the FISA Amendments Act still requires the government to get warrants for spying on American citizens even if it does not afford adequate judicial oversight in enforcing this mandate. McConnell’s proposal, on the other hand, would make no bones about spying on Americans without warrants, thereby contradicting any meaningful FISA reform.

President Bush has already made clear he would veto any FISA bill that did not give retroactive immunity to the telecoms. However, if McConnell’s soon to be unveiled spy-at-will plan is turned into law, a separate law giving retroactive immunity to the telecoms would be unnecessary. All Bush and Cheney would need to do to protect themselves from criminal liability would be to make the new spy-at-will law retroactive in effect from the inception of the illegal NSA surveillance program. This would also be sufficient to deflate the civil suits filed against the telecoms because the past illegal spying activities that these companies conducted on behalf of the government would then become “legal.” Indeed, the Bush administration has already done this sort of legal retro-dating and nullifying of civil rights and gotten it through Congress. For example, the Military Commissions Act of 2006 conveniently gave Bush the power to decide whether someone-including himself-is guilty of torture, irrespective of the Geneva Conventions, and it made this authority retroactive to Nov. 26, 1997.

Whatever the final disposition of FISA in the coming weeks or months, the administration is now bracing to take a much more aggressive posture that would seek abridgement of civil liberties in its usual fashion: by fear-mongering and warnings that our homeland will be attacked by terrorists (this time of the menacing hacker variety) unless we the people surrender our Fourth Amendment right to privacy and give government the authority to inspect even our most personal and intimate messages.

It would be a mistake to underestimate the resolve of the Bush administration. But it would be a bigger mistake for Americans not to stand united against this familiar pattern of government scare tactics and manipulation. There are grave dangers to the survival of democracy posed by allowing any present or future government unfettered access to all of our private electronic communications. These dangers must be carefully weighed against the dubious and unproven benefits that granting such an awesome power to government might have on fending off cyber-attacks.

Elliot D. Cohen, PhD, is a media ethicist and critic. His most recent book is “The Last Days of Democracy: How Big Media and Power-Hungry Government Are Turning America Into a Dictatorship.” He is a first-prize winner of the 2007 Project Censored Award.

State of the Outrage
Marty Kaplan, HuffPo
January 27, 2008

Because Barbara Bush taught him to “use your words, George,” her son the president, rather than actually mooning some Senate Democrats at the joint session of Congress on Monday night as he would like to do, will instead call them terrorist-lovers for refusing to give retroactive immunity to lawbreaking telecoms in the FISA bill, and he will call them partisan obstructionists for wanting to extend unemployment benefits in the economic stimulus bill now pending.

Because the political media’s machismo depends on admiring cynicism as realpolitik, when the Clintons claim victory in the Florida primary this Tuesday, the mandarins will pronounce it a brilliant chess move, rather than revealing it as a desperation-borne contempt for the rules of the nomination game they had previously agreed to, and as condescension toward those who still naively care about playing by them.

Because there is no accountability in punditry — outside, that is, of Jon Stewart and Keith Olbermann — Rudy Giuliani’s flameout in Florida, like Fred Thompson’s before him in South Carolina, will occasion no reminders and no regrets for the jock-sniffing musk-addled crushes once harbored toward them by the Chris Matthewses and Bill Kristols of the political locker room.

Because there is nothing like necrophilia and hagiography to prolong our national addiction to historical amnesia, this week’s Republican debate at the Reagan Library will prompt no admission that the sub-prime meltdown now dragging Americans into a painful recession, except for the nouveau gazillionaires insulated from it, is the godchild of the Reagan religion of faith-based deregulation, fundamentalist market worship, and a massive government-engineered transfer of wealth from the middle to the top.

Because “the surge is working” — because, that is, of the indefinitely long presence of more than 150,000 American troops in Iraq, paid for by trillions of dollars that even the Bush administration no longer has the nerve to put in its budget, combined with the absence of any meaningful progress toward the administration’s own benchmarks for political success, coupled with the media’s inability to cover the war as anything except the kind of occasional traffic fatality story found on local TV news — a presidential campaign that might have been a referendum on Republican deceit and incompetence, and a frank conversation about America’s real security interests in the world, will instead be a moronic barrage of empty slogans about change.

And because the Framers were unable to anticipate the genius at gaming the Constitution possessed by the power-mad viceroys of a future King George named Cheney and Rove, nor could the Founders conceive of a corporate press hooked on revenue-generating junk and intimidated into abandoning its role as Fourth Estate, the year of onanistic Legacy coverage and good-poodle bipartisanship that will be kicked off this week by the State of the Union address will be left unspoiled by erased emails, unmarred by unenforced contempt citations, unsullied by unacknowledged high crimes and demeanors, and unblemished by disgraces that cannot be rectified by pardons for the past and pay packages for the future.

But hey, it’s gonna be a great Super Bowl, Romney sure is good-looking, I wonder what kind of cake Jenna and Henry pick, Joe Lieberman really understands how to reach across the aisle, and did you know Obama’s middle name is Saddam?

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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