Next Steps On FISA - July 8 and Beyond

As we all know, we're in kind of a holding pattern while we wait another week until the Senate is likely to lay down and give Bush more than he expected on warrantless wiretapping and immunity for lawbreaking. I know many of us are calling representatives and talking to them when they come in our communities and even organizing inside Barack Obama's social networking site (9,300-plus strong now). But the reality is that we're likely to come up short. The Beltway elites are determined to bury their sins and make sure nobody finds out about the extent of this illegal and unconstitutional spy program.

So what do we do? There's a lot of outrage and energy around this issue, certainly it needs to be channeled. I think there are a number of things we can do.

• If we keep organizing around the July 8 vote, the best opportunity for us is to encourage passage of the Bingaman amendment, which would put a stay on any immunity until 90 days after the completion of a Justice Department Inspector General report about the President's warrantless wiretapping program. This would be beneficial for a number of reasons. It's "sensible" enough - why give immunity before we know what we're immunizing? - to attract bipartisan support. The IG report would certainly take long past President Bush's exit from the White House, which is extremely beneficial. And the 90 days gives an opportunity to deep-six the immunity after the worst abuses are brought to light. Most important, this would be a change in the bill from the House, which would send it into a conference committee and require another round of votes after reconciliation, AND the President wouldn't be likely to sign anything with the Bingaman amendment in it because he wants his immunity and he wants it now. So for so many reasons, strategically speaking that amendment is the right one to push with your lawmakers.

• Keith Olbermann is right - the right will continue to make up some excuse to attack Obama for this vote on some grounds, so he owes it to his supporters to do the right thing and, if telecom immunity remains in the bill, vote against it. The fantasy of criminal prosecution for the telecoms, well, I'll get to that in a minute. But for those organizing around Obama from now to July 8, it should be around making sure he's at that vote and voting for the Dodd-Feingold amendment, for the Bingaman amendment, and against the bill if they fail.

• What happens AFTER July 8 strikes me as more relevant now - it's highly unlikely that we stop this freight train. Are there any next steps? First of all, we must continue to pressure the next President to investigate the program. The IG report will be made, and there must be a concerted effort to make that public. The bill's expanded wiretapping powers are arguably more pernicious than immunity, and so bringing them into full view could spark an outrage that would roll the whole system back, similar to the Church Committee's findings in the 1970s.

...the bottom line for the ACLU is that no president should have the power to monitor the phones and emails of Americans without a warrant, and telecommunications companies should not be let off the hook. No president should have the power to pardon companies that broke the law.

The ACLU calls on the next president to conduct an immediate investigation of warrantless wiretapping and calls on him to release documents relating to the legality of the NSA’s monitoring of American’s calls and email without warrants.

This issue has awakened a sleeping giant, a broad coalition of Americans worried about the creeping loss of their civil liberties for the last 50 years. Whether it's unwarranted spying or just catalog companies harvesting your emails and selling them off to advertisers, Americans desire their privacy and will fight efforts to take it away. The Strange Bedfellows coalition will live on beyond July 8 and will seek to hold those who limited freedom and curbed civil liberties accountable. But as a specific action, demanding a full, thorough, and public investigation is a good place to start.

• Litigation will not end if our efforts fail on July 8.

Lawyers for the Electronic Frontier Foundation and American Civil Liberties Union, two groups that have been leading the charge against dismissing the lawsuits, are working on possible legal challenges for the FISA bill that is expected to pass soon. That being said, no one is ready to throw in the towel on the continuing FISA fight happening in the Senate.

"Assuming that the immunity does pass, which right now we are not assuming, we are certainly preparing for litigation against the application of immunity in our case," Kevin Bankston, a senior attorney for EFF told RAW STORY [...]

While the precise sequence of events in unclear, Bankston said the challenges would take place in the Northern District of California Court, where the telecom lawsuits themselves are being litigated. He said he's pleased that at least the immunity question is not being decided by the secret FISA court, as was proposed in an earlier bill.

The ACLU is keeping its options open but has not decided how or if it will proceed with court challenges to an eventual FISA agreement, a spokesman says.

If the bill granting immunity is a violation of separation of powers, the courts could overturn it. Obviously we have a Supreme Court in hock to corporate interests so the odds would be long, but courts also don't really like their authority usurped so I'm not sure it's such a slam-dunk.

My larger point is that there's a lot of work to be done, both in the next week and beyond, to put us on a path where we have liberty and security, where privacy rights and civil liberties are sacrosanct, and where no man or corporation is above the law. We must continue the fight.