submitted without comment (almost)

WASHINGTON — A Justice Department plan would loosen restrictions on the Federal Bureau of Investigation to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion, Democratic lawmakers briefed on the details said Wednesday.

. . . .

The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.” The plan “might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities,” the letter said. It was signed by Russ Feingold of Wisconsin, Richard J. Durbin of Illinois, Edward M. Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island.

As the end of the Bush administration nears, the White House has been seeking to formalize in law and regulation some of the aggressive counterterrorism steps it has already taken in practice since the Sept. 11 attacks.

. . . .

The Democratic senators said the draft plan appeared to allow the F.B.I. to go even further in collecting information on Americans connected to “foreign intelligence” without any factual predicate. They also said there appeared to be few constraints on how the information would be shared with other agencies.

[emphasis added]

Of course, I said "almost." To get the few choice words I just couldn't suppress, please head on over to capitoilette.

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.

one amendment down; nine to go

Oh, hell, why stop with the Bill of Rights—why not go for the entire Constitution?

Here is a less than comprehensive assortment of clips on Wednesday’s Senate vote to gut the Fourth Amendment. . . .

New York Times reporter Eric Lichtblau:

The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.

. . . .

Even as his political stature has waned, Mr. Bush has managed to maintain his dominance on national security issues in a Democratic-led Congress. He has beat back efforts to cut troops and financing in Iraq, and he has won important victories on issues like interrogation tactics and military tribunals in the fight against terrorism.

Caroline Fredrickson, Director of the ACLU’s Washington Legislative Office:

This [new legislation] represents a fundamental shift in the notions of freedom and democracy that have defined our nation for well over 200 years. Americans will no longer have any expectation of privacy in our communications - leading many to be fearful about what they say and write so it is not misconstrued by some computer data mining program or overzealous government agent.

Glenn Greenwald:

With their vote today, the Democratic-led Congress has covered-up years of deliberate surveillance crimes by the Bush administration and the telecom industry, and has dramatically advanced a full-scale attack on the rule of law in this country.

. . . .

Will Democrats ever learn that the reason they are so easily depicted as "weak" isn't because they don't copy the Republican policies on national security enough, but rather, because they do so too much, and thus appear (accurately) to stand for nothing? Of course, many Democrats vote for these policies because they believe in them, not because they are "surrendering." Still, terms such as "bowing," "surrendering," "capitulating," and "losing" aren't exactly Verbs of Strength. They're verbs of extreme weakness --- yet, bizarrely, Democrats believe that if they "bow" and "surrender," then they will avoid appearing "weak." Somehow, at some point, someone convinced them that the best way to avoid appearing weak is to be as weak as possible.

Sen. Hillary Clinton (D-NY):

There is little disagreement that the legislation effectively grants retroactive immunity to the telecommunications companies. In my judgment, immunity under these circumstances has the practical effect of shutting down a critical avenue for holding the administration accountable for its conduct. It is precisely why I have supported efforts in the Senate to strip the bill of these provisions, both today and during previous debates on this subject. Unfortunately, these efforts have been unsuccessful.

What is more, even as we considered this legislation, the administration refused to allow the overwhelming majority of Senators to examine the warrantless wiretapping program. This made it exceedingly difficult for those Senators who are not on the Intelligence and Judiciary Committees to assess the need for the operational details of the legislation, and whether greater protections are necessary. The same can be said for an assessment of the telecom immunity provisions. On an issue of such tremendous importance to our citizens – and in particular to New Yorkers – all Senators should have been entitled to receive briefings that would have enabled them to make an informed decision about the merits of this legislation. I cannot support this legislation when we know neither the nature of the surveillance activities authorized nor the role played by telecommunications companies granted immunity.

Congress must vigorously check and balance the president even in the face of dangerous enemies and at a time of war. That is what sets us apart. And that is what is vital to ensuring that any tool designed to protect us is used – and used within the law – for that purpose and that purpose alone.

Sen. Chris Dodd (D-CT):

Today, the United States Senate faced a very fundamental question that has been asked for generations: Does America stand for the rule of law, or the rule of men? But by passing FISA legislation that grants retroactive immunity to the telecom companies that allegedly participated in President Bush’s warrantless wiretapping program, we gave the wrong answer.

. . . .

I believe we best defend America when we also defend its founding principles.

. . . .

By sanctioning retroactive immunity, we have allowed the actions of a handful of favored corporations to remain unchallenged in a court of law. The truth behind this Administration’s unprecedented domestic spying regime will now never see the light of day.

Bruce Afran, a New Jersey lawyer representing several hundred plaintiffs suing Verizon and other companies:

The law itself is a massive intrusion into the due process rights of all of the phone subscribers who would be a part of the suit. It is a violation of the separation of powers. It’s presidential election-year cowardice. The Democrats are afraid of looking weak on national security.

And, last but not least, Senator Russ Feingold (D-WI) with Rachel Maddow and on Countdown:

You will notice there is no comment from Sen. John McCain (R-AZ). That is because he didn’t have one—he skipped Wednesday’s proceedings (just as he has skipped previous FISA debates) to campaign. McCain has made it clear in the past that he supports the Bush policy, but just in case, he decided to keep it off the record.

You will also notice there is no comment from Sen. Barack Obama (D-IL). I didn’t see anything new from Obama on Wednesday, but honestly, with his votes in favor of this capitulation, he’s already said more than enough.

. . . .

This sad chapter is almost over, but the fight is just beginning. Both the ACLU and the Electronic Frontier Foundation plan to challenge the constitutionality of this law. You can sign a letter in support of the ACLU here. Strangebedfellows continues to organize around this issue to fund primary challenges to Democrats that fail to defend our core beliefs. They are planning an August 8th moneybomb, and you can find out more about that here.

the fix is in

Professor Jonathan Turley appeared Tuesday on MSNBC's Countdown to bemoan the imminent capitulation by Democrats on new FISA legislation.



Please listen to what Turley has to say. . . then please click over and read my thoughts on capitoilette.

writing to the radio

Most broadcast programs have done a less than spectacular job covering the Bush Administration’s illegal domestic surveillance programs or the ongoing fight over FISA revisions. Sadly, WNYC’s Brian Lehrer has been part of the poorly informed pack. I am hoping that the appearance today, in the 10am EDT hour, of Glenn Greenwald will help improve matters some, but with a vote on final passage of a terrible bill possible at any hour, it is most certainly too little too late.

With all that in mind, though, I was still inspired to shoot off this e-mail to Mr. Lehrer (much) earlier this morning:

In listening to the late night broadcast of the Tuesday show, I was quite surprised by Brain's remark that it was news to him to hear that the illegal domestic surveillance program was initiated by the Bush Administration prior to the attacks of 9/11. This was suspected for some time, and was confirmed during the trial last year of Qwest head Joseph Nacchio. Such information has previously been reported in the Rocky Mountain News and the New York Times, and discussed on To The Point (which WNYC aired daily prior to last week).

I, myself, have been writing about this for much of the last year (I humbly ask that you read a few of these posts, listed here. In those posts, I link to more reports about pre-9/11 domestic surveillance and some of its possible targets.), and I am sure that one as expert as your guest Glenn Greenwald would be happy to shed more light on the subject if asked.

Believe me, I hate even sounding vaguely like a conspiracy theorist, but I am well within the mainstream with my belief that the Bush Administration’s illegal domestic surveillance program is not and has never been primarily about keeping us safe from foreign terrorists. Senators Russ Feingold, Chris Dodd, Ron Wyden, and Ted Kennedy have expressed similar doubts. So have NYT reporters Risen and Lichtblau. Mr. Greenwald and many other very prominent bloggers have plumbed the depths of this subject, as has Wired magazine and Editor and Publisher.

The ACLU’s legislative director, Caroline Fredrickson, protested the speciousness of administration arguments for expanded spy capabilities with minimal oversight back when it became apparent that the NSA started domestic spying early in 2001, “How then will that keep us safer if 9/11 followed the expanded capability?”

There are many, many problems with this FISA "fix"--not just retroactive immunity for the telcos and the Bush Administration--but the fact that it codifies a program that was started, illegally, mind you, before 9/11/01 proves this to be a capitulation, and not a compromise. We already had a working FISA law when the Bush team took over, with provisions for surveillance in advance of a hearing, and a super-secret court that almost always approved executive branch requests. Yet, the White House still went outside the system, and did so when it had demonstrably little interest in the likes of al Qaeda. It makes you want to ask: what then is all this spying for? That a Democratic Congress--and now, the Democratic Party's presumptive standard bearer--would choose political convenience over asking this one tough question is both disheartening and disturbing.

Thank you for your time and consideration.

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 The Seminal and capitoilette)

cynicism is a sorry kind of wisdom

“Cynicism is a sorry kind of wisdom.”

That was said in a February speech by the same guy that just released this statement:

Statement of Senator Barack Obama on FISA Compromise

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act.

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people.

That’s the entire statement—I wanted to make sure I gave you the whole thing—and I gotta say, nothing says “change” like rewriting the Fourth Amendment after an hour’s debate on a summer Friday after the primary season is over.

Obama does say that he is opposed to telecom immunity, and that he will “work to remove that provision” when the bill gets to the Senate, but he also says that he supports the "compromise," and this "compromise" includes immunity. Will Obama vote against the “compromise” if he fails in his attempt to remove retroactive immunity? From the way this statement is phrased, I sincerely doubt it. Will you see Obama take a lead role in any attempt to stop this bill if it includes immunity? Not on your life.

Obama proudly invokes the grassroots in his statement, but to be clear, by supporting this so-called compromise, the grassroots and Barack Obama are on opposite sides on this issue.

McCain on warrantless surveillance: the more he McFlip-flops, the more he’s McSame

Memo to John McCain: Republicans run to the right in the primaries, and to the left in the general.

That would be the usual pattern, anyway, but this is not a usual year, and because John McCain stands for little more than getting himself elected, he is still trying to shore up his rightwing base long after he clinched the Republican nomination. Which leads to articles like this:

Adviser Says McCain Backs Bush Wiretaps

WASHINGTON — A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team.

Review this week, the adviser, Douglas Holtz-Eakin, said Mr. McCain believed that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international phone calls and e-mail without warrants, despite a 1978 federal statute that required court oversight of surveillance.

Mr. McCain believes that “neither the administration nor the telecoms need apologize for actions that most people, except for the A.C.L.U. and trial lawyers, understand were constitutional and appropriate in the wake of the attacks on Sept. 11, 2001,” Mr. Holtz-Eakin wrote.

OK, then, if you vote for McCain, you are voting for four more years of the Bush Administration’s illegal domestic surveillance programs. That seems clear enough. Except that just six months ago, McCain said something kind of different.

In an interview about his views on the limits of executive power with The Boston Globe six months ago, Mr. McCain strongly suggested that if he became the next commander in chief, he would consider himself obligated to obey a statute restricting what he did in national security matters.

Mr. McCain was asked whether he believed that the president had constitutional power to conduct surveillance on American soil for national security purposes without a warrant, regardless of federal statutes.

He replied: “There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.”

Following up, the interviewer asked whether Mr. McCain was saying a statute trumped a president’s powers as commander in chief when it came to a surveillance law. “I don’t think the president has the right to disobey any law,” Mr. McCain replied.

David Golove, a New York University law professor who specializes in executive power issues, said that while the language used by Mr. McCain in his answers six months ago was imprecise, the recent statement by Mr. Holtz-Eakin “seems to contradict precisely what he said earlier.”

While McCain’s imprecise language probably represents his incomplete understanding of the issues at hand, McSame’s recent voting record pretty much tells you where his ambitious, pandering, and (for a man who’s been through so much) remarkably empty heart lies:

In February, for example, Mr. McCain voted against limiting the Central Intelligence Agency to the techniques approved in the Army Field Manual on Interrogation, which complies with the Geneva Conventions. Mr. McCain said the C.I.A. needed the flexibility to use other techniques so long as it did not abuse detainees.

He also voted for legislation that would free telecommunications companies from lawsuits alleging that they illegally allowed the N.S.A. to eavesdrop on their customers’ phone calls and e-mail without a warrant. The legislation would also essentially legalize a form of surveillance without warrants going forward.

As the Times article notes, the folks at the National Review are thrilled no end that McCain has obliterated any daylight that might have existed between himself and George W. Bush. And, as Glenn Greenwald says in the same article, the new McCain spying doctrine is a “complete reversal” designed to “shore up the support of right-wing extremists.”

The misadventures of some McCain surrogates over recent weeks (again, detailed in the article) seem to show that their standard-bearer lacks a clear understanding of all that the current illegal surveillance debate encompasses—or likely doesn’t care to know much beyond whatever it takes to get McCain’s big money telecom donors off the hook. But the “evolution” of McCain’s position on warrantless wiretaps does teach an important lesson about McCain’s broader instincts: First, check with the interested corporate lobbyists; if still in doubt, just do the same as Bush.


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

exposure of warrantless wiretap program by NYT did not damage national security, says McClellan.

I know what you’re thinking: You are certain that in the 29 gazillion press availabilities that you have watched, you have heard everything that former White House press flack Scott McClellan has to say about George W. Bush’s great American truth killing machine. But there he is, on the radio, on the TV, up in the sky. . . and you find yourself looking and listening again.

OK, I didn’t see him up in the sky, but I did see and/or hear three additional interviews with Scotty Mac on Monday, and there are the odd interesting moments that are differently interesting enough to keep you coming back. For instance, McClellan’s appearances on both Fresh Air and The Daily Show each had moments where he was challenged more than he was during any of what I heard or saw last week.

Also interesting was McClellan’s appearance Monday afternoon on WNYC’s The Leonard Lopate Show (and no, I’m not talking about the two times that Leonard tried to out Scott). Lopate asked McClellan about White House attempts to silence what it saw as bad or inopportune publicity (just after the 24 minute mark on the audio):

Lopate: Didn’t the administration forcefully threaten the press, especially when the New York Times revealed the NSA’s warrantless wiretapping program?

McClellan: Well there were certainly some strong words there that if you do this you’re going to expose some national security secrets; I can’t find any that would be harmful to our national security. I can’t find any evidence that it has been with its exposure. And in fact those investigative reporters did a great job and their article was delayed for about a year because of the pressure that the president and other top people put on the editors of the New York Times.

With Congress gearing up for another go at new FISA legislation (or, more like, Republican fear mongers and their BushDog enablers gearing up for another attempt to force retroactive immunity through the House), it would be good to add Scotty’s words to the overwhelming consensus of opinion (and the overwhelming lack of countervailing arguments that can site, you know, facts) that revelations about the administration’s illegal wiretaps did not harm our national security, and that warrantless surveillance does nothing to make us safer.

And now you don’t have to take the word of former intelligence officials, first amendment lawyers, federal judges, and scores of freedom-loving activists for it, you have the testimony of the guy that was fully briefed on the program the night before he had to go out and defend it.

(Which, of course, means that several folks at the Times knew about this program a year before the Press Secretary did. . . but that’s a whole other issue.)


(cross-posted on The Seminal)

outsourcing the surveillance state

With a scant nine months left to the Bush Administration, the push to open every single minute in the lives of every single American to the watchful eyes of the federal government is in crunch time. Obviously, in order to fight The Global War on Terror ™, it is crucial that everything we say and do is documented, recorded, analyzed, and stored for future use against us in a court of law military tribunal. But total surveillance is expensive, and with the Iraq War siphoning about a half-million dollars from the GWOT™ every minute, our watchful minders are now having trouble finding the necessary cash to pay all their bills to the great and patriotic telecommunications companies and related industrialists and war profiteers.

Here’s where you can help.

With the Quik Pod Pro ™, you now can fill in some of the all-seeing eye’s blind spots. Simply extend the telescoping, lightweight, aeronautical-grade aluminum Quik Pod shaft, and you can make sure that you capture every waking moment in wide angle. You never again have to ask a friend, family member, or random passerby to handle your surveillance (which means that you only have to carry one camera, because if a friend, family member, or random passerby is photographing you, it is only fair, after all, that you take over photographing them).

There’s no need for a macro lens because the Quik Pod extends to a full 18.5 inches—and there’s a built in mirror to make sure that you, as a loyal and patriotic American, are always in the frame.

So, do your part John and Jane Q. Public! Help George and Dick keep you out of the sights of the terrorists by keeping yourself in the sights of George and Dick. Pick up your Quik Pod Pro for $29.95 (a Quik Pod tax deduction is in the works) wherever fine surveillance equipment is sold.

Quik Pod: because Uncle Sam and Ma Bell can’t always be there.

Help us help you help us.

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.

(continued on capitoilette)

president Bush threatens not to leave if house doesn’t submit to his will

I’m sorry, but I am just so amused this morning as I hear over and over that George Bush is threatening not to leave for Africa unless the House of Representatives rolls over and whitewashes his wrongdoing by passing without amendment the Senate version of the FISA rewrite. Think about it—if you don’t vote, I won’t go.

Putting aside that his fear mongering is nothing but a shameless pack of lies. Putting aside that it’s the President that has set up this showdown. Putting aside that the apparent issue that he has with the House version is that it doesn’t grant telecom immunity, so, as Senator Kennedy says, Bush’s logic says that phone companies are more important than American lives. Putting aside that nothing will happen to any surveillance project if the egregious PAA is allowed to pass from law. Putting aside that Bush’s Africa visit is supposed to do things like promote peace in Kenya and AIDS prevention across the continent, but somehow, this FISA food-fight is more important. Putting aside all of that. . . .

The apparent biggest threat that Mr. 29% approval rating has left in his nasty, self-serving, partisan arsenal is threatening not to leave!

I think I speak for at least 71% of America when I say, “Go, George, Go.”


(OK, I can’t quite let it go yet. . . . Seriously, what is he going to do if he stays? Talk about it? Oh, no—an entire news cycle of George Bush talking! In case no one has noticed, this guy’s poll numbers go down pretty much every time he opens his mouth. Reminding America about Bush and his failed presidency, especially over the long President’s Day weekend, is like the gift that keeps on giving. Nothing could be better for Democrats this election cycle than to have Bush on TV every other freakin’ minute saying, “Hello, remember me, the Republican architect of your misfortune?” So, Georgie, you wanna stay home and blow hot air? I say, “Bring it on!”)


(cross-posted on The Seminal)

a tale of two constituencies

As you have no doubt heard by now, the Democratic Caucus in the Senate handed President Bush-Cheney a huge victory on Tuesday, passing the un-amended SSCI version of the FISA bill, 68 – 29.

Let me just remind everyone, because, frankly, it is sometimes hard to remember, that the Democrats are the majority party in the Senate.

This bill contains retroactive immunity for the telecommunications industry, which, as previously explained, is really a “get out of jail free” card for the President and his henchmen. This bill also contains many other egregious planks that do more damage to our Constitution than any bill I could have ever imagined coming out of a supposedly democratic body. As Senator Chris Dodd put it, “We’ve just sanctioned the single largest invasion of privacy in American history."

That what passes for a Republican party voted in lock step to cover up this administration’s wrongdoings is not a surprise, but what can we say about the Democrats? Specifically, these Democrats:

Conrad, Rockefeller, Baucus, Webb, Kohl, Whitehouse, Bayh, Johnson, Bill Nelson, Mikulski, McCaskill, Lincoln, Casey, Salazar, Inouye, Ben Nelson, Pryor, Carper, and Landrieu.

I will also add Feinstein to this list. She voted against the final bill, but that was just a cover, since she voted for cloture—which was as good as signing off on it. Lieberman also voted with the coward caucus, but that’s no surprise.

Many of these same Dems voted for the Military Commissions Act back in 2006, and the last FISA “fix”—the Protect America Act—last year.

I would also like to nominate Majority Leader Harry Reid to this hall of shame, for if Reid had wanted to, he could have stopped this piece-of-crap bill (and the PAA, for that matter) cold. Reid made a big deal about his opposition to the SSCI version, but he ignored Chris Dodd’s hold on it, and allowed this bill to come to the floor ahead of the better Judiciary Committee draft. Shame!

It should also be noted that among the Presidential aspirants, Obama showed up to vote to strip telecom immunity from the bill, and voted against cloture—and I extend due thanks for those votes—but he left before the final roll call. Clinton missed all of the votes on Tuesday. And, John Asshole McCain—ever the maverick—didn’t show up, either.

Now that’s what I call leadership for the future!

I am surprised by the votes of Webb and Whitehouse. They are both over four years away from reelection and have been critics of the Bush Administration on other so-called “war on terror” issues—they should both know better.

As for most of the rest—oh, hell, ALL the rest—what were you thinking?

This is not a rhetorical question.

Polls show that voters are against telecom immunity and warrantless surveillance by solid margins. They despise and distrust George W. Bush even more. So, Senators, you clearly were not acting in the interests of the American people.

We also know that this bill does little (likely nothing) to enhance our nation’s ability to catch “potential terrorists” (whatever the fuck that is), but it gives the administration vast powers to do opposition research, limit a free press, and stifle dissent. So, Senators, you clearly were not acting to protect the nation or the Constitution.

And, as has been established, this version of the legislation lets the Bush bunch off the hook for what is now over six years of illegal behavior when it comes to domestic spying. So, you were clearly not acting to defend the rule of law.

So, what the fuck were you doing? Who the fuck are you working for?

Could it be that you really work for the telecommunications lobby?

Could it be that you harbor some vague future ambition?

Or, could it be that you are just acting out of stupidity or cowardice?

Really, I see no other options.

Of course, this exercise in incompetence/cowardice/greed is not quite over. There is still the superior House version of this bill to be dealt with in conference. There is a petition over at FDL asking House members to stand firm. If you have not yet seen it, please click on over and sign it. Then keep your ear to the ground—or whatever we do these days—and watch for another vote on something before the PAA expires on Friday. (And, I will continue to contend, simply letting the PAA expire would really be the very best option. I can dream, can’t I?)

As for all the Democrats that have failed us, I recommend that they pick up a paper and read about The Fourth Congressional District of Maryland, for it was there on Tuesday that progressive Donna Edwards beat eight-term Bush-dog Al Wynn in the Democratic primary.

Incumbents should now think long and hard about whom they really represent. Thanks to the increasingly sophisticated organizing skills of the grassroots and netroots, it not enough to simply label yourself a Democrat, grab a seat, and then hold on to it. Corporate money might have gotten you to where you are, but it will not always keep you there. Not any more.

Every one of the Democrats that help the Bush administration abrogate the Constitution, every one of you that votes for the rule of men over the rule of law, every one of you that chases the money instead of leading the way out of the last decade of darkness, you now have a time clock, and it is counting down to your next primary.

So, each of you, ladies and gentlemen of the United States Congress, the clock is ticking. It’s time to decide: which constituency do you represent?


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

bleak senate, bleak house

Tuesday represents the last dance for senators wishing to significantly amend or stop the abysmal SSCI (Senate Select Committee on Intelligence) version of a FISA bill that could radically alter the level and quality of Americans’ rights to privacy for a very long time. Matt Browner Hamlin does an excellent job of teaching us today’s steps—please give it a read—it is no walk in the park.

Senator Pat Leahy has signed on to support Chris Dodd, and likely a few other Senators such as Feingold and Kennedy, to “filibuster” the bill if it is not changed in some very real ways. (“Filibuster” is in quotes here because under the UC—again, read Matt—there is no real filibuster in the talk-till-you-drop sense.) Most notably, these Democrats seek to strip retroactive immunity from the bill, a blanket amnesty that adds an extra-legal level of protection for the telecom industry, but, most importantly, a complete amnesty for Bush and Cheney and other officials that collaborated to break numerous laws in order to assert unitary power and spy on anyone they damn please.

Leahy has a tool to contact your elected officials here.

Though the establishment media can’t seem to understand the importance of this issue beyond repeating White House talking points about “national security,” and maybe throwing in a “some say” regarding the importance of civil rights, the editorial page of the New York Times has made the connection between this horrible FISA “fix” and last week’s tortured torture testimony from the new AG. If you haven’t been reading along with me on FISA and warrantless surveillance, the Sunday editorial will clue you in to some solid reasons to lobby your congressional representatives. As the Times concludes:

This whole nightmare was started by Mr. Bush’s decision to spy without warrants — not because they are hard to get, but because he decided he was above the law. Discouraging that would be a service to the nation.

This debate is not about whether the United States is going to spy on Al Qaeda, it is about whether it is going to destroy its democratic principles in doing so. Senators who care about that should vote against immunity.

As Matt explains, today’s Senate action is not the very last waltz, but Republicans and blue dogs will march to the beat of Cheney’s fearmongering drum, and the telecommunications industry has bought and paid for Senators like Jay Rockefeller—and he who pays the piper calls the tune.

There still exists a better House version of this legislation, which will have to be reconciled with the Senate bill, so not all hope is lost. I continue to contend that the very best outcome for this will be for the legislation to stall in both houses so that we can revert to the original FISA law, but if you follow the steps as laid down by Matt, the chances for that are, alas, bleak.


(cross-posted on The Seminal)

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.

(And if you want some more, you'll have to click on over to capitoilette. . . .)

a FISA carol

Thanks to some enlightened members of the Senate and the hard work of grass- and netroots organizers all over the country (world?), the Republican-sanctioned move for cloture on the SSCI version of the new FISA legislation failed, and failed soundly. Only a handful of Democrats went over to the dark side. The importance of all the phoning and faxing done by us average American defenders of the Constitution should not be undersold—several Democrats seem to have crossed back over the abyss to rejoin the likes of Chris Dodd and Russ Feingold on the correct side of this issue. Everybody give themselves a hand.

After that cloture vote, Majority Leader Harry Reid then proposed a 30-day extension of the despicable Protect America Act, but Republicans, marching to the beat of a partisan White House drum, rebuffed a cloture vote on that “compromise.” They and the administration apparently would rather see this self-described important tool in the GWOT™ expire than give the Senate time to debate any amendments that might be seen as a (minor) Democratic victory.

So, what’s next? The House, which had already sent up a better FISA restoration last month (one that had no telecom immunity, among other small miracles), will likely vote Tuesday on its own 30-day extension. If that passes, the question will be to Bush/Cheney and the Senate Republicans: What’s more important, destroying the Fourth Amendment or scoring political points?

That is a question I dare not answer.

The Senate could also try to vote out a different FISA bill or short-term extension, but with the House only meeting this one day before the PAA sunsets, it is hard to figure how any Senate action could be turned into law before February.

Now let me rain on our parade a little bit. While the concerted efforts of all should be applauded, this is only a step, and a tiny one at that, toward surveillance sanity. There is still a good chance that when (and it is likely a “when” and not an “if”) a new FISA revision is allowed an up-or-down vote, it will contain many of the same indignities we rallied against on Monday. As Glenn Greenwald laments:

The only reason Democrats were able to hold their caucus together today to filibuster is because The Senators were offended that their inalienable Senatorial Right to vote on amendments was deprived by the GOP's premature Cloture Motion. The one (and only) "principle" that can really inspire many of these Senators to take a stand is the protection of their Senatorial prerogatives. Many of them don't actually have any beliefs other than that.

. . . .

Senate Democrats today took a stand for their procedural rights, not against telecom immunity or warrantless eavesdropping. After all, many of the Senate Democrats who voted to filibuster this bill were more than ready last week to vote for that bill, and they will vote for it again soon enough. Moreover, while they were upset that they were denied the right to vote on these amendments, many of them intend to vote against those very same amendments and will ensure that most, if not all of them, fail, so that the bill arrives at the White House in a form acceptable to the Leader.

I tend to share Greenwald’s pessimism, but I also like to remember the words of the Ghost of Christmas Yet to Come: These are only shadows of what could be—not of what will be.

What gives me the smallest amount of hope is that we only have to stop legislation—we don’t have to pass anything. Should the PAA expire, we simply revert to the 1978 FISA law—one that was already plenty permissive enough to allow for all the kinds of surveillance that the White House likes to pretend they need a new law to initiate. The original version just requires the smallest amount of oversight and records keeping—and that would stand in the way of what this group really wants to do with these sweeping spy powers.

Someday, I would actually like to see more oversight than that provided for in the 30-year-old law, but for now, I am content to stand by the original FISA act. We have been able to beat back attempts to codify a very bad set of new “GINOs” (guidelines in name only) twice this session, so there is always the chance that we can do it again.

Right?

Write: If you contacted your Senators yesterday and you liked the results, let them know. Thank them, and remind them that you will continue to watch progress on this matter, and that you expect them to continue to stand against telecom immunity and for our Fourth Amendment rights.

let’s talk about sex. . . and FISA

If you tuned in last Thursday, then you might know that there is a crucial cloture vote on the revisions to FISA as reported out of the Senate Select Committee on Intelligence scheduled today for 4:30 PM. As you probably have read by now, the SSCI version of the bill is bad news on may levels, the most obvious of which is the proposed amnesty for telecommunications companies that cooperated with the Bush Administration in breaking the original FISA law and violating the Fourth Amendment.

Republicans have moved for cloture to cut off amendments to this bill and to preclude a vote on a one-month extension of the (frankly terrible) Protect America Act, due to expire on February 4th. It is crucial to the legislative process and to our civil liberties that at least 41 Senators vote against cloture.

Now you think that would be easy, given that the Democrats theoretically control 51 seats, that this version of the bill gives Dick Cheney and his henchmen retroactive cover for past wrongs, and everything they want to exploit their power in the future. Alas, securing these 41 votes will actually require effort.

You can play your part. Call your senators. Fax your senators. Write your favorite presidential candidate—tell them all that this is important to you. (Information on how to do all of this can be found here.)

Senators Clinton and Obama are in Washington for the State of the Union speech, and have both said that they will be present to vote “no” on cloture. But, they could do more, as Ari Melber points out, each have several colleagues that have endorsed their candidacies, but who, at present, have not committed to a vote against cloture. It is crucial for any senator auditioning to be president to show some leadership skills on this issue. Both Clinton and Obama need to expend some political capital to make sure that the Senate does not vote out a bad FISA bill.

(For the record, as I noted on Thursday, former Senator John Edwards weighed in against telecom immunity and this version of the bill last week. I should also note that Republican Senator and presidential candidate John “Asshole” McCain is skipping both this vote and the SOTU.)

Now, perhaps you think this is all academic. “What’s the big deal?” you say. “I lead a clean life; this won’t affect me.” Well, think again.

Finally, if you still want to talk about sex. . . and race. . . then click through to my post on capitoilette.

woke up it was a FISA morning

This morning, at approximately 9:30, Connecticut Senator Chris Dodd continues his fight to prevent George Bush, Dick Cheney, rubberstamp Republican senators, and a troubling number of Democratic Senators from taking another bite out of the Constitution. In other words, he is fighting to stop the horrible SSCI version of the FISA revision that includes retroactive immunity for the telecommunications industry.

Because of jaw-droppingly bad “leadership” by Majority Leader Harry Reid, Dodd is forced to threaten filibuster against his own party. Dodd has shown real leadership on this issue, taking time away from his presidential campaign in Iowa, the last time this bill hit the Senate floor.

This time around, Dodd is out of the presidential race, but two other sitting senators are still claiming they have what it takes to lead us out of our Bush/Cheney-authored hell. Yes, I am talking about you, Barack. . . and you, Hillary.

You don’t need a vision for change, and you don’t need experience, you just need to be in Washington, DC, on the floor of the Senate, doing the job that voters elected you to do.

Why? Well, how about because a clear majority of Americans are opposed to telecom immunity and two-thirds believe that the government should have to get a warrant before it taps into the communications of its citizens (even if those Americans are calling overseas).

Or, how about because absolutely anything that Dick Cheney is for is something that you should be against. And Vice President Cankles has a hard-on (well, whatever passes for hard-on in his sclerotic world) for telecom immunity.

Or, how about because US code already provides cover for companies that can demonstrate that they acted in good faith, so telecom immunity is really Bush/Cheney immunity—pure and simple.

Or, how about because the only good faith that the telcos ever show is their good faith in the almighty dollar—if they’re so hell-bent on doing their patriotic duty, then how come they are disconnecting the wiretaps because the government hasn’t paid their bills?

Or, how about because your hard-charging competition for the Democratic nomination has dared you to step up and show America that you would really fight for our interests when Bush comes to shove.

John Edwards:

“In Washington today, telecom lobbyists have launched a full-court press to win retroactive immunity for their illegal eavesdropping on American citizens. Granting retroactive immunity will let corporate law-breakers off the hook and hamstring efforts to learn the truth about Bush's illegal spying program.

"It's time for Senate Democrats to show a little backbone and stand up to George W. Bush and the corporate lobbyists. They should do everything in their power -- including joining Senator Dodd's efforts to filibuster this legislation -- to stop retroactive immunity. The Constitution should not be for sale at any price."

Or, how about because it is just plain and simple the right thing to do—and if you can’t see that on an issue as clear as this one, then how am I supposed to trust your judgment down the line?

(Obama and Clinton have made “statements” opposing telecom immunity in response to inquiries made by Markos for his Wednesday post on The Hill, but BHO and HRC are both sitting senators, so it’s time they put their butts where their mouths are. . . or something like that.)

In December, both Barack and Hillary pledged to support Chris Dodd’s filibuster, but neither of them left their presidential campaigns to return to DC and actually do so. Today is their chance at a do-over. As Jason has noted, Obama, Clinton, and twelve other senators pledged their support for Dodd’s filibuster in December—why not give them a call to se where they stand (and where they are literally standing) today.

Fax / Phone

Feingold (202) 224-2725 / (202) 224-5323
Dodd (202) 224-1083 / (202) 224-2823
Obama (202) 228-4260 / (202) 224-2854
Sanders (202) 228-0776 / (202) 224-5141
Menendez (202) 228-2197 / (202) 224-4744
Biden (202) 224-0139 / (202) 224-5042
Brown (202) 228-6321 / (202) 224-2315
Harkin (202) 224-9369 / (202) 224-3254
Cardin (202) 224-1651 / (202) 224-4524
Clinton (202) 228-0282 / (202) 224-4451
Akaka (202) 224-2126 / (202) 224-6361
Webb (202) 228-6363 / (202) 224-4024
Kennedy (202) 224-2417 / (202) 224-4543
Boxer (415) 956-6701 / (202) 224-3553

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

how can a man without a gallbladder exhibit so much gall?

The New York Times gave a large chunk of their op-ed page over to what amounted to an unpaid advertisement for telecom immunity penned by former Attorney General John Ashcroft. I have some thoughts. . . .

Jay lies

(Updated)

It was apt that West Virginia Senator Jay Rockefeller chose Halloween to publish an op-ed in the Washington Post that once again tried to justify warrantless surveillance of US citizens by invoking the specter of 9/11.

In the immediate aftermath of Sept. 11, the Bush administration had a choice: Aggressively pursue potential terrorists using existing laws or devise new, secret intelligence programs in uncharted legal waters.

. . . .

Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president. These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.

Though I for one am not scared by the regurgitated talking points of the cowardly and oft-bunkered Vice President Dick-in-a-Box, I am terrified that a purportedly fully briefed Senator—a Democrat, no less—thinks that any of us should be satisfied with his contorted explanations for illegal spying and retroactive immunity.

Glenn Greenwald does a fine job of debunking the circular logic used by Jell-O Jay as he tries to distract us from his cozy relationship with the people and companies that he’s indemnifying, but he misses what is to me the most glaring fabrication.

In case you missed it, let me reprise a select sentence:

Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president.

Well, I’m tired of niceties on this one, so I’m just going to state it plain; THIS. IS. A. LIE.

As has been noted in books, newspapers (and here), magazines (and here, and here), wire services, and blogs (and here, and here, and here, and here, to link to but a handfull) repeatedly over the last two years, the Bush Administration, directly from the White House or through the NSA, approached telecommunications companies about eavesdropping and data-mining on US citizens within the United States over six months before the attacks of 9/11/01. This assessment has now been confirmed by documents unsealed in the case of former Qwest head Joseph Nacchio.

Since we believe that J-Rock, as a then ranking member of the SSCI, was briefed on some or all of these warrantless spy programs early on, and since he now assures us that he’s seen all appropriate documents concerning telco involvement, unless by “within weeks of the 2001 attacks” Rocky means within 27 weeks before the attacks, Senator Rockefeller is lying. He is not only invoking 9/11 to once again scare Americans into accepting unfettered violations of their privacy, he is using the terrorist acts of 2001 to directly deceive us about the nature and intent of the illegal surveillance programs.

I perhaps am not overwhelmingly shocked that another senator has been compromised by administrations bullying and corporate cash, but I am a little dismayed that critics of Rockefeller, the new Senate FISA re-write, and the Bush Administration’s domestic spying programs in general, still often fail to cite this very disturbing and revealing truth.

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?

If they were looking for terrorist conversations, then the September ‘01 attacks prove that the program was a flop. In fact, it is possible to go so far as to say that the giant dragnets cast by the intel/telco partnership flooded the NSA with so much data that it actually overwhelmed the system and buried much more valuable and readily apparent terrorist signal intelligence.

As I struggle to remain up to speed on illegal surveillance issues, I know all too well that there is a heck of a lot to read out there, but I think it essential that on this key point, all off us, the SSCI, the establishment media, and the blogosphere, need to be on the same page. Warrantless domestic surveillance of US citizens by the Bush Administration started long before the 2001 hijackings. Bush, Cheney, their attorneys, their intelligence bureaucracy, and the telecom industry may all have their reasons for collecting signal intelligence on Americans without a court order, but, back when the spying started, 9/11 wasn’t one of them.



. . .
(NB: I know this is light on links. I have many links for you, but no time right now. I promise I will come back later in the day to link up all the supporting documents.) Plenty of documentation now added!


(crossposted to capitoilette, The Seminal, and Dialy Kos)