This Week In Torture

Just because there are other things happening in the world today, I wanted to highlight some recent developments in the moral outrage that is this Administration's practice of torture.

Today an appeals court ordered the Defense Department to release all known photos depicting detainee abuse by US forces in Iraq and Afghanistan. Seymour Hersh and others have noted for years that the images from Abu Ghraib are just a sampling of the evidence that the military has in their possession, and now the government must release them. Kudos to the ACLU for having the persistence to uncover what has been done in America's name; this ruling is significant for the future of Freedom of Information Act requests in general as well as revealing the truth about torture in particular.

A few days back, the American Psychological Association prohibited its members from participating in any detention facility that requires them to operate in violation of international law. This is a major ruling from the APA, and it came from a vote of its membership. They had been at the forefront of

The APA was the focus of attention when it was revealed during military commission hearings in Guantanamo this summer that military psychologists belonging to Behavioral Science Consultation Teams (BSCTs), known as "Biscuit teams," took part in crafting the techniques used to torture and mistreat prisoners there.

The ACLU’s Jennifer Turner, who observed Mohammed Jawad’s hearing, where much of this information about the role of military psychologists was revealed, wrote in August:

Since 2002 BSCT psychologists have evaluated prisoners’ fears and psychological weaknesses to craft individualized blueprints for torture and other mistreatment, which they passed on to the interrogators. For instance, a Guantánamo psychiatrist advised interrogators to exploit one detainee’s severe phobia of the dark by deliberately keeping him almost totally in the dark.

Of course, those psychiatrists who have resigned from the APA will continue to staff the BSCT teams at Guantanamo and elsewhere. And I'm sure the military is paying handsomely for them.

This is of course supposed to be John McCain's major break with George Bush. The old warrior, his body broken from torture at the hands of the Viet Cong, stood up and said no to his party and extracted major concessions from the President. Except it's all bullshit.

McCain served four years in the House and has been in the Senate almost 22 so far. But he, too, has authored fewer than a half-dozen major laws. Trying to fix immigration counts for something, but nothing passed. So while McCain deserves credit for the landmark 2002 McCain-Feingold campaign-finance reform bill, the only other major law on which his office says his "name appears" (Palin's standard) is the "McCain Amendment" prohibiting torture in the armed forces. But that has little meaning because of a bill this year, supported by McCain, that allows torture by the CIA. Under longstanding government practice, military intelligence officers can be temporarily designated as CIA officers ("sheep-dipped" is the bureaucratic lingo) when they want to go off the Army field manual. In other words, the government can still torture anyone, any time. McCain caved on an issue he insists is a matter of principle.

It's the ultimate act of dishonor for McCain to knowingly allow Americans to do unto others what was done unto him.

"Giant Step Toward Fascism"

That lawsuit I mentioned the ACLU was planning in the wake of the FISA bill (now law.. pardon me while I cringe) has been made official.

The American Civil Liberties Union filed a landmark lawsuit today to stop the government from conducting surveillance under a new wiretapping law that gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - will be greatly compromised by the new law.

The FISA Amendments Act of 2008, passed by Congress on Wednesday and signed by President Bush today, not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.

"Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged," said ACLU Executive Director Anthony D. Romero. "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights. The new wiretapping law fails to provide fundamental safeguards that the Constitution unambiguously requires."

In today's legal challenge, the ACLU argues that the new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing.

Among the plaintiffs in the lawsuit is journalist Chris Hedges, who today doesn't hold back at all in explaining this new law:

During a conference call Thursday, Hedges recounted his work in foreign countries like the former Yugoslavia and El Salvador where his phone was bugged and government agents regularly followed him to prevent critics from speaking out. Now the same thing is beginning to happen here, he said.

"I have little doubt the passing of this FISA law essentially brings that type of surveillance system and the effectiveness of that system to the United States," he said.

According to the ACLU, the Democratic-controlled Congress has handed Bush a gift-wrapped grant of new domestic spying authority. The group says its lawsuit is perhaps the last chance to sustain Americans' confidence that a government snoop isn't listening in on every one of their international calls.

"This lawsuit is the ACLU at its best," said journalist and author Naomi Klein, another plaintiff in the suit. "It's defending the law even when the lawmakers won't." [...]

Hedges didn't know for sure that he was being monitored, but he couldn't say for sure that he wasn't. The chilling effect of surveillance he had become so familiar with while reporting in foreign countries had now scuttled his work at home.

"With that gone we take a giant step toward fascism," Hedges said during the call.

Absolutely. And yet the Establishment just wants to bury the bodies and move on. Kudos to the ACLU for at least trying to halt this maddening descent.

The 23,000-plus supporters of Barack Obama who pleaded with him - organizing through his own website - to get FISA right, to no avail, have not quit fighting either. Get FISA Right is their new home, and their mission is to hold those who voted accountable and push a progressive agenda on a future President Obama. This self-starting organizing group is going to be a powerful asset moving forward.

I don't like taking a crapshoot on a conservative judiciary to hold the tenuous strings of the 4th Amendment together, but those who are fighting for our Constitutional rights should be praised.

They're Suing

One thing this whole FISA business has taught us is that most of our friends are very likely not in the Congress, they're in the groups doing tireless work year after year to help protect our liberties. The ACLU is one such friend.

Today, in a blatant assault upon civil liberties and the right to privacy, the Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance. The FISA Amendments Act of 2008 was approved by a vote of 69 to 28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times.

“Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.” [...]

In advance of the president’s signature, the ACLU announced its plan to challenge the new law in court.

“This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.”

Another friend, the Electronic Frontier Foundation, will sign on to the lawsuit. Raw Story has more.

There are a lot of nodes of power in the political arena, and elected officials are just one of those nodes. The ACLU is so very important in this fight and so many others. You can consider to give them a donation at this link. Rather than throw money down a pit of campaign ads, it may be more beneficial to support the existing structures that do great work in holding government accountable.

UPDATE: In case you're unaware what a group like the ACLU is up against, let me bring you this:

When U.S. law groups announced in April that they were hiring the nation's top criminal defense lawyers to defend alleged al Qaeda terrorists at the war court here, one executive called the lawyers "The A Team.''

Now, they're the No-Pay Team.

The American Civil Liberties Union, which has pledged to cover costs of civilian lawyers defending alleged arch-terrorists, is in a struggle with the U.S. Treasury Department over a permit to pay $250-an-hour fees and other expenses to attorneys who have been shuttling to this remote U.S. Navy base from as far as Boise, Idaho.

The Treasury division, the Office of Foreign Assets Control, is the same unit that polices American citizens' travel to Cuba. Its authority to license defense costs at the war courts here, called military commissions, comes from anti-terror legislation.

Tuesday, ACLU director Anthony Romero accused the Bush administration of foot-dragging, noting civilian defense lawyers were slow to receive security clearances to meet accused terrorists held for years without access to attorneys.

Because they, like so many nonprofits, aren't blessed with unlimited funding, they have to, in this case, rely on the very group they're fighting in court for their survival. The lawyers working at Gitmo and in the courts to stop unconstitutional power grabs don't deserve this kind of treatment. They need our help.

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.

Rep. Hoyer, You're About To Be Money-Bombed

Steny Hoyer's pathetic lie about why he engineered a FISA bill that grants immunity to the telecoms and the Bush Administration is so laughably bad that you wonder how this guy ever got elected Majority Leader in the first place. He certainly wilts in the spotlight.

Asked why Democrats don’t put aside the surveillance legislation until a new president is elected in November, Hoyer said he would prefer to do so, but can’t because so many House Democrats are prepared to vote for the Senate bill that he and other top House Democrats oppose.

“Clearly enough Democrats have indicated in the House they would vote for the Senate bill if it came to the floor. The alternatives are either the Senate bill or a bill significantly better” reached through negotiations with the Senate and the White House, he said.

“Many Democrats have indicated to me they are willing to wait as long as an alternative is in sight. If not, they are prepared to vote for the Senate bill,” Hoyer said.

That's just not factually correct. They all voted with the stronger House bill just a few months ago. They don't have the ability to vote for the Senate bill unless Hoyer and the leadership bring it to the floor. The discharge petition that would force the bill to a vote has been largely dormant for the past two months. It's just completely disingenuous for Hoyer to suggest he's controlled by the rank and file.

Glenn Greenwald reports that his efforts to hold Hoyer accountable for sanctioning lawbreaking are growing.

First, the amount raised in the last 24 hours is now a truly extraordinary $90,000 -- bringing the total for this campaign over $170,000. The more that number goes up, the more potent this campaign will be, the harder it will hit its deserving targets. Contributions can be made here.

The ACLU Press Release announcing this new coalition, which is being called "Strange Bedfellows," is here. We expect to announce numerous other additions to the coalition -- many quite significant -- very shortly [...]

As a result, our campaign will be unveiled in two phases, with Phase I to entail an immediate ad campaign aimed at three key Democratic enablers of this bill -- Hoyer, Chris Carney, and Blue Dog Rep. John Barrow of Georgia. The reasons for targeting Hoyer are self-evident and were set forth yesterday, and the campaign against Carney -- who has long bee one of the Blue Dogs spearheading the effort behind this bill -- is already underway and will continue.

Rep. John Barrow was, like Carney, one of the 21 Blue Dogs who signed the letter to Nancy Pelosi back in March demanding that they be allowed to vote on the Rockefeller/Cheney Senate bill. In July, Barrow faces a very credible primary challenger -- Georgia State House Rep. Regina Thomas -- who is much more in step with the district's Democratic base.

All good enough. Carney doesn't have a primary opponent, but to be honest, he can have his negatives increased so he's replaced by a Republican. Really doesn't matter a bit to me.

What Hoyer ought to be worried about comes next.

Phase II will involve a massive money bomb, to be planned by the same people who were behind the money bombs that raised millions and millions of dollars for the Ron Paul presidential campaign. The dates and other details for that will be announced shortly.

The plan there is to raise an extraordinary amount of money -- dwarfing the $90,000 raised in the last 24 hours -- by going to all of the various constituents of each member of this coalition in order to fuel a real campaign in defense of civil liberties, constitutional protections and the rule of law. The money raised will be used to oppose and punish those vulnerable members of Congress who continue to support the evisceration of our constitutional framework and core civil liberties, while supporting candidates and office-holders who meaningfully oppose that assault.

Like the ACLU said, it's Strange Bedfellows. But if citizens with different views can come together on supporting civil liberties and the rule of law, I enthusiastically support it. You can become a strange bedfellow here.

A citizen-led to use millions and millions of dollars attacking Steny Hoyer is something I can get behind.

FISA Update

I'm starting to get worried with what I'm hearing about a FISA "compromise." Republicans in Congress have been supposedly shifting on the rules governing surveillance, and are claiming that this is their final offer. Steny Hoyer and Jello Jay Rockefeller have been working on this bill with Kit Bond, and it doesn't look good. Here's Ryan Singel's report.

As for amnesty, here's a compare and contrast between bill (.pdf) the Senate passed in February and Bond's compromise.

S. 2248: In any case brought against a telecom for allegedly helping the government spy on Americans, the Attorney General could then write a secret letter to the judge in the case. The letter can certify that the company didn't participate or that the companies had gotten a piece of paper from the government at some point, saying that the President thought the program was legal. The letter does not even have to say that the telecom's participation was legal, simply that the government's end was. The judge would be obligated to throw out the case, unless he found an "abuse of discretion" on behalf of the Attorney General.

Bond compromise: Under this proposal, the Attorney General's letter goes to the secret spying court, rather than to a normal federal judge. A FISC judge would actually be able see whatever requests or orders were given to the telecoms, and parties in the case could actually file briefs. The judge would then decide on a "preponderance of the evidence" whether the telecom secretly spied on Americans as part of a program authorized by president and that they got a letter at some point from the government.

In other words, the outcome in the compromise is as foregone as the original amnesty provision. Both essentially work like directives to the court to throw out lawsuits brought by Americans who allege massive violation of federal privacy laws.

This is pretty close to the Feinstein "compromise" on FISA from earlier this year. It allows a secret court to make the determination on allowing lawsuits to go forward - of course, it's a secret court, and the point of the lawsuits is not necessarily to bankrupt telecoms but to discover the extent of the spying on Americans by the White House, which this would short-circuit. In addition, it sets up FISA as the exclusive means for telecom surveillance, which is fine, but that's already the law, and the Bush Administration thinks they have the power to invalidate exclusivity by executive order and secert law, anyway.

There is no constituency for this bill other than the telecom industry, which has spent millions in lobbying fees already this year. There's supposedly a deadline in August after which some wiretaps set right now would have to be stopped, which could be fixed very easily with a patch covering international communications that go through a domestic switcher. There is absolutely no reason to give in on this. John McCain is flopping like a fish on this one because he doesn't even know what the independents want out of this - the truth is they want NOTHING and they care about their civil liberties. The right has already put up the TV ads and called Democratic members of Congress soft on terrorism and it DIDN'T WORK. Somehow the Dems are acting like it did. Of course, this is because they feel just as culpable for spying on Americans and want to eliminate any possibility of the extent of the spying getting out. So we're fighting against two parties on this one.

But fight we must. The ACLU has a petition calling on people to reject the Bond compromise. Progressive organizations like Blue Majority are running our own ads aimed at wayward Dems like the awful Chris Carney, taking them to task for supporting warrantless eavesdropping. They Work For Us is running radio ads in Bush Dog districts as well. Somehow these conservative Dems think they own the caucus but that's just because they aren't being scrutinized for their actions, which are substantially similar to the actions of the Bush Administration which the country has rejected.

Facial Challenges

The Supreme Court just rejected a court challenge to the Bush Administration's warrantless wiretapping program. And they did so in the most Kafka-esque way possible.

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.

ACLU legal director Steven R. Shapiro has said his group is in a "Catch-22" because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program, Shapiro has said.

This fits with the demise of "facial challenges," motions that a law is unconstitutional on its face. The 9th Circuit upheld the state secrets privilege last year even when the Islamic charity who sued had TRANSCRIPTS of their own conversations, which were inadvertently handed to them by the government.

We have, in addition to an extremely conservative Supreme Court, a national security state where official secrecy trumps Constitutional violations.

ACLU on FISA

The superior Judiciary Committee version of the FISA bill was defeated by a 60-34 count, with several Democrats voting in favor of the bill with amnesty (Sen. Feinstein voted against tabling the bill, significantly). The ACLU had this to say:

“It appears the Senate is buckling under pressure from the White House. The Judiciary Committee’s alternative included vastly improved privacy protections for Americans over both the Intelligence Committee bill and the Protect America Act. By rejecting the Senate Judiciary Committee’s language, the Senate has rejected the constitutionally superior bill.

“Under Democratic leadership, the Senate will now continue its debate on surveillance with a bill that resembles something from the administration’s playbook. Six months after being hoodwinked into passing the Protect America Act, Americans are still waiting for Congress to grow a spine.

“Instead of capitulating to the administration, senators should listen to their constituents who overwhelmingly oppose warrantless wiretapping and telecom immunity. As the FISA debate moves forward, we urge the Senate to wake up and realize it is a co-equal branch of government."

As if the people mattered in a debate of their betters in Congress. Hah!

For shame to these Democrats who voted to make American law irrelevant:

Rockefeller
Bayh
Mikulski
Pryor
Salazar
McCaskill
Nelson (FL)
Carper
Nelson (NE)
Landrieu
Inouye
Johnson

Guantanamo and Hiding The Evidence

Tonight I'll be at a bar in Los Angeles at an ACLU-sponsored "Un-Happy Hour" to recognize the 6th anniversary of the opening of the prison at Guantanamo Bay. (It's from 7-9pm at "The Bar" on Sunset and Bronson).

So much has been said about the legal black hole that is Guantanamo that I find it hard to expand upon it. Hundreds of human beings, the majority of them victims of bounties for terror suspects given by the US government to greedy Pakistanis, have been sequestered at Gitmo, without the rights of citizens that 800 years of history have granted. This has harmed irreparably our standing around the world and our fight against terror, to the extent that practically everyone in the Bush Administration has signaled the need to close Guantanamo, without actually going ahead and doing it. Here's an excerpt of Meteor Blades excellent post:

Prisoners have been dehumanized, brutalized and tortured. All of it excused as necessitated by the war on terror, all of it justified by tortuous legalistic rigamarole.

While Guantánamo has been transformed from a camp with buckets for toilets and mats for beds to one of the most high-tech prisons on the planet, several hundred of its captives have been released, in most cases after years of arbitrary detention. But many who have been cleared for release still haven’t been repatriated. In some cases, that’s because their home country doesn’t want them back, a situation exacerbated because U.S. officials repeatedly called the Guantánamo prisoners the "worst of the worst" and never admitted to mistaken detentions.

Some prisoners cannot be released because it is prohibited to send them to places – like China – where they might be tortured or otherwise abused. Yet some have been repatriated to countries such as Libya, where torture occurs frequently. The most recent release was of 10 Saudi nationals repatriated in late December. Another 13 Saudis could be released soon. As of today, about 275 prisoners remain at Guantánamo.

The ACLU is asking people to sign this pledge to close Guantanamo, to put an end to torture and indefinite detention. On this very anniversary, a US appeals court refused a lawsuit on behalf of 4 Guantanamo detainees, alleging torture, abuse, and human rights violations. The only desire for this Administration is to live out their lives without indictment. Their lawmaking over the last two years has simply served to immunize their own criminal behavior. Also today, the Lieutenant Colonel who was courtmartialed in the Abu Ghraib scandal, Steven Jordan, had his conviction thrown out. We're seeing the systematic protection of those who have done such great harm to this country.

Our next President will either sustain these policies or end them. They'll either restore this nation or break any last vestiges of it. The choice is clear.

Sign the pledge.

Ideology vs. Progress, Take 1

I've noticed a LOT of situations recently where progressive ideology has bumped up against incremental change that would have real-world effects, and while I'm sympathetic to the ideological argument, I have to say that we need so much change right now that we cannot wait for the whole enchilada and must take the opportunities that present itself.

This first example appears to be a case of mistaken identity. The New York Times leads with a faulty headline and tries to make House Democrats' latest FISA proposal look like a capitulation.

Two months after vowing to roll back broad new wiretapping powers won by the Bush administration, Congressional Democrats appear ready to make concessions that could extend some of the key powers granted to the National Security Agency.

Bush administration officials say they are confident they will win approval of the broadened wiretapping authority that they secured temporarily in August as Congress rushed toward recess, and some Democratic officials admit that they may not come up with the votes to rein in the administration.

The reality is much more complicated. The Democrats in the House drafted a bill that is far better than the cave-in on FISA temporarily granted in August. I don't have the highest hopes that this is the version that will make it all the way to the President's desk, but there are some key elements here which reflect the concerns of the Progressive Caucus and the ACLU. I don't think there's anyone sharper on these issues than Glenn Greenwald, and here's his take:

To begin with, the bill to be proposed today by the House Democratic leadership actually contains some surprisingly good and important provisions.

That bill would compel the administration "to reveal to Congress the details of all electronic surveillance conducted without court orders since Sept. 11, 2001, including the so-called Terrorist Surveillance Program." It would also require the maintenance of a data base to record the identities of all Americans whose conversations are surveilled. And it provides nothing at all in the way of amnesty or immunity for lawbreaking telecoms or administration officials. The bill introduced by House leadership is a bill the White House will never accept and would certainly veto, and it is vastly better -- in important ways -- than the atrocity they enacted in August.

It is important here to recall that there is actually an amendment to FISA that is at least arguably justifiable. Even the original FISA law never required warrants in order to eavesdrop on (a) foreign-to-foreign calls or (b) calls involving a U.S. citizen where the target was a non-citizen outside the U.S. (who just happened to call into the U.S.). But recently, technological developments resulted in such calls, even foreign-foreign calls, being routed through the U.S. via fiber optics, and a FISA court ruled this year that the language of FISA requires warrants for such calls.

Even civil libertarian stalwarts such as Russ Feingold agree that it was never the intent of FISA to require warrants for those categories of calls and that amending FISA strictly to fix that problem is justifiable. And the House bill (which, I should note, I have not been able to read yet because the bill has not been publicly released and people in DC love to keep things secret, but I have spoken with many people whose expertise I trust who have read it) makes that arguably necessary change. But the bill gives the White House little else, and imposes some important requirements that the White House would never accept.

It is definitely possible that this is all just deceit, that House leaders introduced this bill strictly to placate their Progressive Caucus and their base and that they have no real intention of fighting for these provisions, but instead will give Bush what he wants once Mike McConnell starts accusing them of Helping the Terrorists and they begin negotiating in secret again. But it seems that there are important House Democrats really ready to fight on these issues, to prevent Steny Hoyer and Rahm Emanuel (who unfortunately seem to be the real Speakers of the House) from conniving like they did in August to manipulate their caucus into supporting something far worse.

This is the beginning of the fight, not the end of it. We have a decent House bill and the looming spectre of the original atrocity expiring, reverting back to the initial FISA law. There's no need to hurry this or to offer anything beyond that fix on foreign calls re-routed to the United States. The Progressive Caucus has really stepped up and we need to support them, and exert influence on the leadership to ensure that the Senate provisions, which will probably include retroactive immunity for the telecom industry, are nixed.

If the Democratic Congress capitulates yet again, there will be plenty of time and opportunity for all sorts of recriminations. I think it is quite encouraging that much of the "netroots" is now devoting its energies and resources not to supporting Democrats, but to opposing Congressional Democrats who merit defeat.

Just because the New York Times characterizes Democrats in an article as "nervous" and "soft" doesn't mean they are; it means the NYT is following the same script on Democrats that they have for 20 years. We shouldn't buy into it, we should actively work against it. And if it happens to turn out that way, we speak out. But it's far too early for such a thing.

UPDATE: The ACLU sees one flaw:

"The ACLU sees one major flaw in the RESTORE Act. As drafted, the RESTORE Act still allows for the US government to collect phone calls and emails from Americans without an individual warrant.

Program warrants - sometimes called basket warrants, sometime called blanket warrants - included in the draft bill are a crucial sticking point. There is no specific target when you use basket warrants, which contradicts the heart of the Fourth Amendment. Essentially, a basket warrant really means no real warrant.

The "umbrella warrant" issue is sticky and should be removed. Anything that nonspecific is open to abuse. But again, we're 95% of the way to a good bill, and if the President vetoes we get the original system back in place. I would consider offering the foreign re-routing fix as a single amendment and moving on, in that case.

UPDATE II: I should add here that there's a tension between being an informed citizen, which means reasing and analyzing with deliberation, and being a blogger, which means getting to something as soon as possible. There's also a bit of a bias that everything put out by Democrats is necessarily a stab in the back, to which I don't subscribe.

Steny Hoyer, America's Worst Majority Leader

Apparently Hoyer was about to knife the progressive movement - again - by putting forward an update to the FISA bill, negotiated without the input from most of the rank and file, that would have enshrined the extreme power grab from back in August into permanent law, and which may have yielded retroactive immunity for telecoms like AT&T who payed ball with the Bush Administration and illegally gave up reams of data. Well, the progressive allies in the House banded together, and Hoyer had to back down.

Rep. Steny Hoyer (D-MD), the House Majority Leader, postponed a press conference announcing new reforms of the Foreign Intelligence Surveillance Act after progressive lawmakers banded together and said they would fight any legislation that did not include a set of eight principles on wiretapping that preserve the "rule of law."

"What's most significant is that the Progressive Caucus came together and said to the leadership that all 72 of us require that these provisions be included," said Caroline Fredercikson, Legislative Director for the American Civil Liberties Union. "This changes the dynamic significantly."

That's a major victory. Considering that the NSA has already grabbed all sorts of new eavesdropping powers (in the name of protecting government networks from hackers), considering that new technologies are being developed to eavesdrop on Internet calls and push ads at the user, the last thing we need is an expansion of the national security state. The Progressive Caucus is saying they will not accept a bill that doesn't roll back the Administration's power grab and restore the FISA court to the oversight responsibility it deserves.

It's nice to feel that progressives at least have a little bit of leverage to stop the sellout. And especially at a time when secret memos are flying back and forth in the White House licensing all sorts of illegal activity, the last thing the Democratic Party should be doing is sanctioning it.

Just Weights And Measures

Yesterday I managed to get myself to services for Rosh Hashanah, the Jewish New Year. The familiar rituals and rites of Judaism can be comforting but often lapse into rote recitation. But yesterday, the rabbi's sermon woke me up and put a new spin on the moral code that underpins all humanity, which is at the heart of not only Jewish teaching, but the foundational premises of our country, principles we are rapidly losing over the course of the Bush Presidency.

The rabbi talked about a little-remarked-upon section of the Old Testament. Leviticus is filled with a laundry list of commandments and guidelines for life in Biblical times. One section focuses on "just weights and measures."

35 Ye shall do no unrighteousness in judgment, in meteyard, in weight, or in measure. 36 Just balances, just weights, a just ephah, and a just hin, shall ye have: I am the LORD your God, which brought you out of the land of Egypt.

An ephah is a unit of dry measure, roughly equivalent to about 23 liters. The way that business was conducted in this time was that every shopkeeper would have their own ephah, and their own stone, and would parcel out portions of products based on how they filled the ephah or balanced against the stone. It was stressed in the Old Testament that you have ONE ephah, and that it be clean and untainted, so that the measure was the same everywhere anyone traveled. What was commanded was that you never substitute "ephah v'ephah": having one measure for some people, and a different measure for others.

The rabbi made a strong statement paralleling this commandment for just measures with our present policies on immigration. "You deal with the person in front of you, and you have mercy on them and deal with them and provide for them and care for them as you would anyone else." This is not a political accomodation but a moral imperative; to do any different would be to put our thumb on the scale. And then the rabbi paused, and said, "I should stop there but I won't. For I must not be silent about torture." This is also a violation of "ephah v'ephah." He said that locking up suspects indefinitely and coercing their confessions through prohibited tactics is a sin against God, an "abomination," as the Old Testament calls it, and one that was held in the highest seriousness to Hebrew scholars. "We know a lot about that other thing called abomination," he said, a clear reference to the oft-used line by conservative Christians that homosexuality is an "abomination." Unlike sexuality, using separate ephahs for separate people CANNOT be rectified through penance. It is as serious a sin as there is in Judaism. And this is perhaps because it gets at the very heart of the measure of a man. If we cannot treat others the same, no matter what the circumstances, we have no basis to call ourselves moral human beings.

The United States has their own "ephah," called the Constitution. We cannot profess to follow the rule of law while breaking it whenever convenient. We not only damage our credibility, but we do violence to the ancient concept of just weights and measures. For six and a half long years we have seen an Administration throw morality out the window while claiming to have the word of God on their side. They have eliminated the Great Writ of habeas corpus, they have spied on their fellow citizens without warrants, they have incarcerated terror suspects at Guantanamo and secret prisons indefinitely and without charges, they have nullified federal statutes through the questionably legal means of signing statements, and more. And we cannot stand idly by while they use one ephah for their friends and allies, and another ephah for anyone they deem a threat, be it militarily or politically. We must stand up for just measures.

This week, the ACLU of Southern California, in partnership with Calitics, is launching The Campaign for Our Constitution. It is an aggressive effort to restore our Constitution and our civil liberties and reverse the extreme policies of the Bush Administration that have made us less safe and called into question just what freedom we're supposed to be fighting for abroad. Bloggers, constitutional scholars and activists are joining together in the fight to recapture basic constitutional values. There are going to be a lot of action items you can take in the future, but for now I want to give you the schedule for the coming weeks.

The campaign officially kicks off Monday, Sept. 17, with a conference call with Salon.com contributor and New York Times bestselling author Glenn Greenwald. He will discuss the future of the Constitution with Cenk Uygur, co-host of Air America’s “Young Turks” morning show, and take members’ questions. The conference call is open to anyone who RSVPs through www.ourconstitution.net.

In the next month, the campaign will hold conference calls on Sept. 20 with Dr. Drew Westen, an Emory University psychologist, Huffington Post contributor, and author of “The Political Brain: The Role of Emotion in Deciding the Fate of the Nation” and on Oct. 4 with John Dean, former White House counsel for Richard Nixon and author of the new book “Broken Government: How Republican Rule Destroyed the Legislative, Executive and Judicial Branches,” just released by Viking Press. There also will be a free screening and discussion with director Robert Greenwald (“Outfoxed,” “Unconstitutional”) in Hollywood on Sept. 25.

“Southern Californians are itching for a fight,” said ACLU/SC field director Susanne Savage. “The U.S. Constitution is our core issue. We intend to lead a campaign that will expose the sad truths about our government’s policies, inspire people to act and give our electeds the political cover they need to stop legislating out of fear.”

There is no more important issue for our country moving forward than to regain the sense of justice and truth that's been sorely missing for too long. Please visit OurConstitution.net and see what you can do to help. We can and must return this nation to one where there are just weights and measures.

Civil Liberties, Checks and Balances Making A Comeback

This week we have seen a couple court cases that strike back at the Bush Administration's grabbing of new and extreme executive powers for the executive branch. A federal judge demanded that the Administration provide documents to the court relating to an ACLU lawsuit against the government's warrantless spying program. The government sought to dismiss the case based on the state secrets privilege, and denied even those in the court with security clearance to see the documents requested under the Freedom of Information Act.

While the court is certainly sensitive to the government's need to protect classified information and its deliberative processes, essentially declaring "because we say so" is an inadequate method for invoking Exemption.

Then, a major portion of the Patriot Act was struck down.

A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act "offends the fundamental constitutional principles of checks and balances and separation of powers."

This specifically deals with National Security Letters, which implements a gag order on those businesses summoned with one. No grand jury subpoena or judge's order was required to issue a National Security Letter, meaning the government could deploy them at will to force businesses to turn over customer records without oversight. These letters were previously shown to be misapplied by the FBI.

Even the long-ago-forgotten LEGISLATIVE branch got into the act by criticizing the new use of spy satellite technology.

Senior House Democrats called on the Bush administration yesterday to delay a planned Oct. 1 expansion of the use of powerful satellite and aircraft spy technology by local and federal law enforcement agencies, challenging the plan's legality and charging that the administration is failing to safeguard the privacy of Americans.

House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) and two Democratic subcommittee chairmen jointly asked the Department of Homeland Security to provide the legal framework for the domestic use of classified and military spy satellites, and to allow Congress to review privacy and civil liberties protections.

"You let this thing go, it may be another blank check to the executive. It may morph into things that will terrify you if you really understand the capabilities of satellites," said Rep. Jane Harman (Calif.), former ranking Democrat on the House intelligence committee.

Next thing you know, they'll start fighting efforts to give away massive new spying powers to the President!

Bringing The Heat

Good for the ACLU for showing some principles. They ran an ad criticizing Harry Reid and Nancy Pelosi in their own home papers for caving on the FISA bill.

When Democratic Leaders Allow the Bush Administration to Eavesdrop on Americans, It's BAAAAAAAAAD.

When Americans elected a new Congress last year, we expected the leadership to stand up to George Bush, to fight to restore the civil liberties we had lost in the previous six years. Instead, this summer, Harry Reid and Nancy Pelosi caved to yet another Bush assault on our freedoms.

They've enabled a revision of the Foreign Intelligence Surveilliance Act (FISA) that unbelievably gives new powers to Attorney General Gonzales, new powers to eavesdrop on American citizens without any meaningful court or Congressional oversight.

We don't need sheep protecting the Bill of Rights.

We need lions.

Reid and Pelosi need to understand that we cannot be content to be in the majority if we're not going to do anything with it but acquiesce to right-wing power grabs.

The Trial

In a scenario only Kafka could write, the US 6th Circuit Court of Appeals yesterday ordered a dismissal of the ACLU lawsuit against the President's warrantless wiretapping program, which a federal judge earlier ruled unconstitutional, because of lack of standing.

So, the appeals court is saying that, because the plaintiffs could not show that they were subject to surveillance, they could not bring suit. When the plaintiffs tried to determine from the government if their were being spied upon, the government claimed official secrecy. So you can't sue for having your civil rights violated through spying unless you KNOW that the government is spying on you. Which defeats the purpose of SPYING.

The government through the Congress can still investigate the spying program, but the President can cite executive privilege. And it doesn't seem like they can, as Jonathan Turley suggested, investigate it as a crime, since it's a crime without standing.

This is a casualty of the national security state, as official secrecy has been built out (and the courts have become very deferential), and what the courts are really saying here is that any program conducted in secret is by default legal, because nobody can prove that it exists. Is this how we want our American principles and ideals to be carried forward? If this ruling stands, the American experiment is actually over. It provides a blueprint for any successive Administration to perform any action that impinges on the rights and liberties of citizens: just don't tell anybody about it.

The ACLU has vowed to continue the fight, and they make a couple good points in the service of futility:

"We are deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

Which is all true, but the recent Extreme Makeover: Federalist Society Edition of the Supremes means that this argument of standing is likely to hold water with them, and so it doesn't matter if the judiciary doesn't uphold the legality of the wiretapping progam. It's certainly not ILLEGAL if it's unable to be stopped.

And, I would add that, as Glenn Greenwald says, the appeals court decision was legally sound.

But the fact that the decision's result is so unfair does not mean, unfortunately, that it was wrongly decided. The role of the judge is to apply the law as it exists, and a judge is not free -- nor should we want them to be free -- to disregard binding legal doctrine whenever the judge decides that doing so is necessary to avoid unfair results. In a society that exists under the rule of law, the solution to bad laws and bad legal doctrines is to change those laws democratically, not to empower judges unilaterally to disregard the law in order to produce (what the individual judge perceives to be) better results.

As technical-seeming as it is, "standing" is a critically important constitutional limitation on the power of the judiciary. Independently, whether one believes in the merits of this doctrine or not, it is a requirement that must be fulfilled before the Constitution permits a court to rule on any matter. And there is good reason for that.

Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act ("The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party"). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

This is essentially a crack in the Constitutional system that the Bush Administration has managed to exploit because of the accumulated buildup of the national security state and the continuing reverence for official secrecy. The Bush Administration never tries to make an argument that their spying program is legal, just that nobody has a right to challenge it. They understand that other branches of government will constrain themselves to the powers granted to them by the Constitution, even if they won't.

Here's the solution, as expressed by Greenwald:

There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program. Regardless of one's views on the legality of this program, obtaining a judicial ruling is urgently necessary. It should require little mental energy to contemplate the dangers of allowing our government leaders to spy on us (or take other actions against us) in secret and then simultaneously block any and all processes to determine whether they have broken the law.

Exactly. And Congress needs to act as quickly as possible. The powers of the executive have been constantly expanding over 230 years, and it's time for that process to stop.