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.