FISA: Feingold And Dodd Throw Down

You get the sense that the FISA fight is moving to an endgame, when the two biggest defenders of civil liberties and the privacy of Americans in this debate send a letter to their leadership asking them to remember the Constitution.

Dear Majority Leader Reid, Speaker Pelosi, Majority Leader Hoyer, Chairman Leahy, Chairman Conyers, Chairman Rockefeller and Chairman Reyes,

As you work to resolve differences between the House and Senate versions of the FISA Amendments Act of 2008, we urge you to include key protections to safeguard the privacy of law-abiding Americans, and not to include provisions that would grant retroactive immunity to companies that allegedly cooperated in the President’s illegal warrantless wiretapping program.

With respect to immunity, we are particularly concerned about a proposal recently made by Senator Bond, and want to make clear that his proposal is just as unacceptable as the immunity provision in the Senate bill, which we vigorously opposed. As we understand it, the proposal would authorize secret proceedings in the Foreign Intelligence Surveillance Court to evaluate the companies’ immunity claims, but the court’s role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received “a written request or directive from the Attorney General or the head of an element of the intelligence community … indicating that the activity was authorized by the President and determined to be lawful.”

Information declassified in the committee report of the Senate Select Committee on Intelligence on the FISA Amendments Act, S. 2248, confirms that the companies received exactly these materials:

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

… The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.

In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

There's more at the link and I urge you to read the whole letter. The ACLU has also made their opposition known. There are still "basket warrants" in this compromise bill, which rejects the clear intent of the 4th Amendment by allowing surveillance on individuals without a case made in court as to the need for surveillance of that specific individual. There is also an exception to the exclusivity agreement in the bill for "exigent circumstances," which basically gives the executive the ability to trump any civil liberties protections and spy on whoever he or she wishes. And of course, as Feingold and Dodd note, it lets the telecoms and the government off the hook for illegal spying.

There are lots more problems with the bill but your government and your media doesn't want you to know about it, and so they are censoring free speech that tries to raise awareness.

Two weeks ago, the Blue America PAC submitted ads to numerous cable television stations, newspapers and radio stations criticizing Blue Dog Rep. Chris Carney (D-Pa) for his support of a bill to expand dramatically the President's warrantless eavesdropping powers and to immunize telecoms (such as Comcast) which broke the law in enabling the Bush administration to spy on their customers with no warrants. The ads also documented that several of the lawbreaking telecoms which would benefit most from the amnesty Carney advocates donated substantial sums to his campaign (with Comast being the largest such contributor to Carney).

The ads that were submitted were accepted by numerous newspapers and radio stations in Carney's district, as well as one television station operator (one much smaller than Comcast). None of the companies which own those media outlets were involved in the President's spying program nor were they criticized by the ad, and they have been running the ads for many days now.

By stark contrast, Comcast -- from the moment the ad was submitted -- was blatantly reluctant to broadcast the ad, insisting that numerous, extremely cumbersome "conditions" be met before they would consider accepting the ad. But even once those conditions were repeatedly met -- in the form of ample "substantiation" documenting the claims made in the ad -- Comcast continued to concoct additional barriers. When it was conveyed last week to Comcast's representative that it was becoming increasingly clear that they were refusing to broadcast the ad because it was critical of the role it played in the Bush administration's illegal spying program, and because the ad targeted a Congressman to whom Comcast representatives have contributed generously (and who is working hard to secure amnesty for Comcast), Comcast advised Blue America that it was retaining outside legal counsel to advise it on whether it should accept the ad [...]

Manifestly, Comcast is refusing to broadcast these ads for one simple reason: because they want to suppress any viewpoints critical of their behavior in this matter [...] Comcast has no legal obligation, at least that I'm aware of, to broadcast particular ads. But the danger of allowing corporations like Comcast to control the content of vital political debates by refusing to broadcast ads that are critical of them or their Congressmen is manifest, and that's particularly true where -- as is the case for Rep. Carney's district -- one company controls the bulk of the important television outlets. In an age where corporate consolidation of our most influential media outlets is increasing rapidly, companies such as Comcast can suppress the expression of political views it dislikes -- or conceal their own illegal behavior -- by censoring any political viewpoints that are contrary to their interests or to the interests of the political figures who receive substantial contributions from them and then serve them. Obviously, that is precisely what Comcast is doing here.

The fix really does look to be in on this one. That's why Feingold and Dodd are speaking up now. The Bush Administration and their corporate benefactors are desperate to immunize themselves for illegal spying on Americans, and they'll go to whatever lengths necessary to get the law passed. People power is going to need to be stronger than ever on this one.

UPDATE: I think Eric Lichtblau gets these issues pretty well, but his latest article is basically outsourced to Kit Bond fearmongering, with the attendant "we are going to lose intelligence-gathering capabilities" if we don't give Bush everything he demands. Lichtblau knows better, this is sad.

Joke Line, American Idiot

The Joke Line/FISA saga has reached car wreck proportions. It's painful to watch, and yet you can't look away.

To summarize, Klein wrote a pathetic piece for the Time print magazine, delivered to thousands of homes, about the new FISA bill, that included the demonstrable lie that the Democrats' bill would "give terrorists the same legal protections as Americans". When he was excoriated for buying Republican spin, he responded that telecom immunity is OK if they responded to direct orders from the President, which describes some different system of government, alien to the United States. Then he wrote this crappy correction wherein he admitted that he doesn't read the content of the subjects on which he reports.

But Klein, of course, never bothered to read the bill and still hasn't (even though he is published by Time to "report on" and opine about this bill). Instead, even now, he says that he has spoken with both Republicans and Democrats, and while Democrats insist that what he wrote was false, "the Republican Committee staff disagrees and says [his] reporting is correct."

In other words, Klein's GOP source(s) blatantly lied to him about what the bill does and doesn't do in order to manipulate him into uncritically feeding Time's readers the Rush Limbaugh Line -- namely, that Democrats are giving equal rights to Terrorists and preventing the Leader from eavesdropping on foreign Terrorists. And Klein dutifully wrote down what he was told in Time without bothering to find out if it was true and without ever bothering to talk to any of the bill's Democratic proponents. And no Time Editor knew enough or cared enough to bother correcting any of it. And thus, the unfortunate 4 million Americans who read and trust Time now think that the Democrats' FISA bill does the exact opposite of what it actually does.

After all of this - being burned by a source, buying Republican spin to repeat a lie - Klein then pulls the all-timer with this quote:

I have neither the time nor legal background to figure out who's right.

So this guy is paid to write about subjects and inform his readers, and he's basically throwing up his hands and saying he really can't figure it out so we should all have pity on him? Incredible. There is no dispute over the meaning of the RESTORE Act. Klein created one in order to hide his blatant falsehoods. And now, when they are revealed, he claims he can't possibly know anything about it. This is the problem with American journalism; you have a bunch of lazy dilettantes who aren't really interested in policy, who rely on official sources for their own opinions and then pass them on without comment.

Thus, for now, I just want to ask that everyone ponder the extreme lack of professionalism and corruption required for someone like Klein to write the article that he did accusing Democrats of wanting to give Terrorists the same rights as Americans (therefore showing, as always, that Democrats can't be trusted on national security), and then -- once he is exposed for having spewed outright falsehoods -- he announces that he really isn't interested in bothering to find out (and isn't even capable of determining) if anything he wrote was accurate.

As my post earlier today here demonstrates, that is hardly unusual behavior for Time. But that doesn't make it any less flabbergasting, or repugnant. Doesn't it go without saying: if Klein doesn't have the time or background to understand what he's writing about, then he ought not to write about it? Doesn't anyone at Time agree with that?

Turns out that the editor of the piece for the print magazine doesn't take well to criticism, hanging up on Jane Hamsher within ten seconds (Get the same treatment by calling her at 212-522-2022!). And now one of the authors of the bill has taken notice.

Let me repeat: our bill gives the intelligence community the tools and flexibility it needs to listen to the conversations between those who wish to do us harm. This bill provides exactly what the Director of National Intelligence asked for earlier this year: it explicitly states that no court order is required to listen to the conversations of foreigners that happen to pass through the U.S. telecommunications system. It does not grant Constitutional rights to foreign terrorists.

What we have not agreed to do is give this or any other President a permanent blank check to spy on you, your family, the members of your congregation, or any other American citizen without any judicial oversight - a position shared by an overwhelming majority of Americans according to the latest public opinion surveys on the topic.

If federal intelligence and law enforcement agencies want to read the email or listen to the phone call of an American citizen, they have to get - except in emergencies - a judge to issue a warrant allowing them do so, as the Fourth Amendment to our Constitution requires. Such a court order would be easy to get if there is cause to believe that the American's communications are important intelligence for the protection of our security. And in such "emergencies" there would be quick after-the-fact review by the courts. These are not "unimportant, obscure technical details" - this is the heart of the bill.

Look, Rep. Holt, Joke Line doesn't have the time to read your post. Just dress up as a Republican operative and write his column for him, that'll go much better.

In a sane world, this would be the end of Klein's career.

The Principles At Stake In FISA

I think it's important to note that the FISA bill which came out of the Senate Intelligence Committee would draw a Presidential veto because of Ron Wyden's amendment requiring a FISA warrant to wiretap Americans overseas. So as much as I admire Chris Dodd's principled stand on telecom immunity, even if he relented and the SSCI version of the bill became pre-eminent, it would be vetoed. Not to mention the fact that Wyden's amendment is I feel crucial, otherwise Americans abroad could be randomly targeted at the whim of the Attorney General:

One amendment, which we offered along with Senator Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court – and not just the Attorney General – must determine that there is probable cause that the American is an agent of a foreign power. Americans’ rights should not diminish when they cross the border, nor should the extent of those rights be subject to the whim of the executive branch without the checks and balances provided by the court.

All this does is add a layer of judicial review to determining who is an agent of a foreign power. It's a move the Founders would have pulled to ensure that no one branch predominate. But this is an Administration that literally believes the courts and the Congress have no role in many aspects of government. I'm glad Dodd is out there fighting, because telecom immunity is simply wrong. But this is an amendment worth fighting for as well.

Studs Terkel, himself a subject of government-encouraged blacklisting at one time, wrote an incredible essay for the New York Times on the subject yesterday:

In 1978, with broad public support, Congress passed the Foreign Intelligence Surveillance Act, which placed national security investigations, including wiretapping, under a system of warrants approved by a special court. The law was not perfect, but as a result of its enactment and a series of subsequent federal laws, a generation of Americans has come to adulthood protected by a legal structure and a social compact making clear that government will not engage in unbridled, dragnet seizure of electronic communications.

The Bush administration, however, tore apart that carefully devised legal structure and social compact. To make matters worse, after its intrusive programs were exposed, the White House and the Senate Intelligence Committee proposed a bill that legitimized blanket wiretapping without individual warrants. The legislation directly conflicts with the Fourth Amendment of the Constitution, requiring the government to obtain a warrant before reading the e-mail messages or listening to the telephone calls of its citizens, and to state with particularity where it intends to search and what it expects to find.

Compounding these wrongs, Congress is moving in a haphazard fashion to provide a “get out of jail free card” to the telephone companies that violated the rights of their subscribers. Some in Congress argue that this law-breaking is forgivable because it was done to help the government in a time of crisis. But it’s impossible for Congress to know the motivations of these companies or to know how the government will use the private information it received from them.

And it is not as though the telecommunications companies did not know that their actions were illegal. Judge Vaughn Walker of federal district court in San Francisco, appointed by President George H. W. Bush, noted that in an opinion in one of the immunity provision lawsuits the “very action in question has previously been held unlawful.”

I have observed and written about American life for some time. In truth, nothing much surprises me anymore. But I always feel uplifted by this: Given the facts and an opportunity to act, the body politic generally does the right thing. By revealing the truth in a public forum, the American people will have the facts to play their historic, heroic role in putting our nation back on the path toward freedom. That is why we deserve our day in court.

This is a really simple issue. If we allow the federal government to spy indiscriminately on Americans, to use "basket warrants" to suck up a whole bunch of data and figure out what to use it for later, to allow telecom companies who have massive legal staffs to assist in illegality with no cost, we have switched places with the Soviets.

Wiretapping Updates: Bush Sought Powers BEFORE 9/11

Right before the Congress makes updates to the FISA law and determines whether or not to give retroactive immunity to telecom companies who assisted in the efforts to wiretap Americans without a warrant, there's a lot of information coming out about just how pervasive Bush Administration surveillance has become, and how long they have sought these expansive surveillance powers.

We learned about Qwest CEO Joe Nacchio's contentions that his company was targeted by the NSA for refusing to participate in the wiretapping program back on Thursday. Today we learn more from the Washington Post:

A former Qwest Communications International executive, appealing a conviction for insider trading, has alleged that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal.

Former chief executive Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks, according to court documents unsealed in Denver this week.

Details about the alleged NSA program have been redacted from the documents, but Nacchio's lawyer said last year that the NSA had approached the company about participating in a warrantless surveillance program to gather information about Americans' phone records.

That's really the key statement. All along we have heard that the warrantless wiretapping program was necessary to protect America from the kind of terrorist attacks that we saw on September 11. But months prior, in February 2001, the NSA was approaching telecoms to get them to cooperate on spying. This is only a month or so after Bush's inauguration. And we know that terrorism was nowhere close to being on their minds at that time. So the question must be asked, why would the NSA need these phone records back in February if the goal was not protection from terrorism.

There are a couple possible answers, based on recent news. First, we recently learned that Senator Richard Shelby of Alabama sought information from NSA intercepts on a Clinton-era CIA nominee back in the late 90s. This was in George Tenet's book and was virtually ignored until this week:

[Former CIA Director George] Tenet also wrote that, “National Security Agency officials told us that [Republican Senator Richard] Shelby staffers had been asking whether there was derogatory information in their communications intercepts on [Clinton CIA-nominee Anthony] Lake.”

But the NSA refused Shelby’s entreaties, two sources said, and there was no derogatory information in the FBI’s files.

Shelby also demanded, and got, the FBI’s raw files on Lake.

And Washington Democrats wonder why we’re suspicious of unregulated NSA/FBI wiretaps and other surveillance?

There's credible evidence that Republicans were interested in obtaining evidence on political enemies through wiretaps, but they were stymied in the Clinton years. The transfer of power offered an opportunity. And that opportunity has been realized. Today, news comes that a law firm in Vermont which has been representing detainees at Guantanamo has had their phones bugged.

A law firm that represents clients at Guantanamo Bay, Cuba, and in Afghanistan is warning its Vermont clients that it believes the federal government has been monitoring its phones and computer system.

In a letter sent to clients of the St. Johnsbury firm of Gensburg, Atwell & Broderick, the three attorneys said they can’t guarantee their communications were confidential.

“Although our investigation is not complete, we are quite confident that it is the United States government that has been doing the phone tapping and computer hacking,” said the letter, dated Oct. 2.

The firm claims "hard evidence" that the government is tapping the calls. Verizon is the service provider, and a service technician did find "crossed lines" and disabled security software on all of their computers. Here's the key quote:

Sleigh said that under current federal law, he felt the U.S. Government could argue it was entitled to tap Gensburg’s phone and computer without a warrant.

This is precisely why the upcoming vote on surveillance is so important. Contrary to the stupidity of traditional media pundits, there are real concerns about spying on Americans without warrants, happening right now, with the legal protections conferred in the awful FISA bill passed back in August. What the Bush Administration seeks is the ability to eavesdrop on any phone call it wants, at any time, even if American citizens are caught up in that net, and they have wanted to do this since before 9/11.

Read what they write about government surveillance and the only argument one finds, literally, is that our Leaders need more power because they want to protect us. The very notion that such power should not be vested without oversight and safeguards is, to them, considered unserious, because we are talking here about officials who are good and responsible and would never abuse their power. That is why Congress in August all but gutted the Fourth Amendment and vested the Bush administration with the power of warrantless eavesdropping with barely a peep of protest from our Beltway elite. To the contrary, when they speak about it at all, they do so by warning Democrats not to impede these "important" protections.

The very real reason to be skeptical of these efforts is the lessons of history, when we saw warrantless surveillance without oversight abused and used to spy on political enemies. Which is why the Congress must hold the line in rejecting so-called "basket warrants," which allow the government to spy without a direct target, and rejecting retroactive immunity for those companies which illegally provided the means for the Bush Administration to spy on Americans. Dick Durbin today said he would not allow blanket immunity without knowing the scope of the program. What we're starting to learn is enough. There should be no immunity for breaking the law.

Don't Mourn, Nothing Died Yet

I know Matt Stoller wants to believe the worst about the coming debate on the FISA bill, but you'd think he'd at least notice that the House Judiciary Committee just rejected retroactive immunity for telecom companies who participated in illegal warrantless surveillance, by a 21-14 vote.

Critics say the program was illegal. The Electronic Frontier Foundation, a privacy advocacy group, sued telephone company AT&T Inc last year and accused it of illegally allowing the government to monitor phone calls and e-mails.

The White House maintains Bush acted within his authority in ordering the program.

Bush said the new bill "must grant liability protection to companies who are facing multibillion dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks."

But Rep. Jerrold Nadler, a New York Democrat, said the liability issue should be a court matter. "Let the courts decide whether these companies, or some of them, were acting patriotically with nobility and legally, or if they were breaking the law."

Bush can howl all he wants, but Nadler is right. The hope here is that he gets to make such a case in conference committee and fight the potential Senate inclusion of immunity. Steny Hoyer is a snake and needs to be watched, but stalwarts like John Conyers are fighting the good fight on this bill.

To those who would claim that this bill is weak on terrorism, I would say that protecting the civil rights and liberties of Americans does not show our weakness, but our strength. What the terrorists fear most is our constitution and our values, and that is what this bill protects.

To those who say that the bill is too weak on civil liberties, I say that if you trust an independent court and have faith in congressional oversight, those liberties will not be jeopardized. That is the premise our democracy was founded on, and that is exactly what this bill does.

I am concerned, along with the ACLU, about these "basket warrants" that aren't directed at anybody, which would seem to open the door to all kinds of abuse. But there is oversight over them, in the form of a quadrennial review.

Republicans are committed to stringing this out until the day before the August bill expires, and then playing the fear card to force the Democrats into submission. That may work, but the best defense would be a good offense, and the Progressive Caucus is mulling that one over.

According to House Dem aides, House liberals appear to be leaning in the direction of supporting the legislation -- though nothing is at all certain. Earlier today, an aide says, an internal count of House members showed very strong opposition among liberals to the bill unveiled today. But later in the day, some liberals appeared to be privately concluding that many of their demands -- which they unveiled amid last week's revolt in hopes of influencing the process -- had been met, this aide says.

Indeed, one key House liberal who'd taken a stand against earlier manifestations of the measure -- Jerrold Nadler -- announced today that he would support the bill. In a statement his office claimed the bill "reinforces the role of the Foreign Intelligence Surveillance Court in regards to electronic surveillance programs," and "requires that FISA warrants are required when targeting domestic communications," though it doesn't require them for foreign ones.

Still, things are in flux, and the aide cautions that a key sticking point for liberals remains -- the measure's embrace of "basket" wiretapping. House liberals are meeting behind closed doors as we speak to debate what their stance should be on the legislation. The House liberals' efforts are being coordinated by Bill Goold, an aide to Rep. Lynne Woolsey (D-CA), one of the key House libs behind last week's mini-revolt.

I'm hoping for some amendments on the basket warrants issue. At issue also is the privacy of Americans making foreign communications. But on balance, I've yet to see evidence that this is a craven sellout. We should be encouraging it in the right direction, not lamenting a capitulation before one exists.

UPDATE: Jerrold Nadler's full comments from the Judiciary Committee.