Pat On The Head

I've been busy and such so I never got around to writing about Barack Obama's note to his supporters that are questioning his position on FISA. It's been pretty well covered by Glenn Greenwald, Kagro X and emptywheel, so I don't know that I have too much to add. The short version is that Obama felt the need to address this issue when otherwise he would never have had to do so, and for that reason alone the FISA group at my.barackobama.com is a success. Also the fact that he took the time to address and acknowledge supporters is nice. That said, the statement itself is not sufficient, as it makes the same rejected claim that "exclusivity" is somehow a reason to support the bill (FISA already was the exclusive means for electronic surveillance), and it focuses on telecom immunity rather than the expanded wiretap provisions in the bill.

Obama promises that the Inspector General report would provide some accountability on the Bush Administration's past sins, and to an extent that's true, but while there may be public knowledge arising from that, Administration officials will probably never be held accountable (it'll fall outside the five-year statute of limitations, they'd be out of office, and the IG can't enforce any laws). He promises a "comprehensive review of all our surveillance programs" once he's President, but of course since that's not a given, relying on that is weak tea. The idea that he would, as John Dean hopes, pursue criminal investigations after the fact is negated by the aforementioned statute of limitations, as well as the fact that Bush could pardon the whole gang on the way out the door (I think staying out of prison will override any concerns about tacit admissions of guilt).

All of that we knew, but this part actually got my goat a little bit:

Now, I understand why some of you feel differently about the current bill, and I'm happy to take my lumps on this side and elsewhere. For the truth is that your organizing, your activism and your passion is an important reason why this bill is better than previous versions. No tool has been more important in focusing peoples' attention on the abuses of executive power in this Administration than the active and sustained engagement of American citizens. That holds true -- not just on wiretapping, but on a range of issues where Washington has let the American people down.

Essentially, Obama is saying, "All of your hard work is why we didn't allow a really really crappy bill and only this really crappy one! Aren't you pleased?" It's kind of insulting to the intelligence of those civil libertarians who engaged in this debate. It's a wave of the hand, a silly attempt to placate and then a big brush-off.

I'm pleased with the debate but obviously not the result. Clearly Obama wants this behind him along with the rest of the party. We're going to have long memories about this one, however. The fight will not end on July 8.

FISA Fallout

As I try to keep it in check on the Obama cave-in, Hunter crystallizes my thoughts, particularly on the exclusivity argument.

OBAMA: It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.

No, it really doesn't. Because FISA never went away -- it doesn't need "restoring". FISA is FISA. It was FISA, it is FISA. The only reason FISA would need "restoring" is if we are all willing to accept that it had been invalidated entirely by the president's actions -- that the president was not only able to simply break the law, but managed to erase it from the books entirely on his own say-so.

That's absurd. That's asinine. A law does not need "restoring" when it is violated, it needs enforcing. And given that the Democrats have latched onto a piece of legislation designed explicitly to prevent that from ever happening in any meaningful way, there is nothing to be the slightest bit proud of. It is complete acceptance of an illegal program, dressed up as hard-fought victory, and by God the Democrats responsible for it and voting for it, Obama included, naturally presume that if they type up some lovely-sounding bullcrap about it, they'll be able to pretend it is something other than strategically planned and executed cowardice in the face of lawbreaking [...]

...FISA was not expiring. FISA was not falling into a legislative black hole. It continued to exist, as the exclusive means for electronic surveillance of the American people, and all it required was a warrant, and all the warrant required was probable cause. That's it. That's what this entire, months-long parade of panic, bluster and torn hair has been about, that it was just too damn difficult for the administration to be asked to show two sentences of probable cause to a judge in a secret hearing before collecting whatever electronic information about you, your neighbors, your family, your friends, everyone in your town, everyone in your social organizations, everyone in every restaurant you've ever been to, etc., etc., etc. they wanted to collect.

That's about as concise as you can make it. We had a law. The President decided he didn't want to follow it. In response, the Congress immunized the President and his partners for their conduct, on the grounds that now, future Presidents will have to follow it. But if that was true, Bush wouldn't have broken the law in the first place. "If men were angels, no law would be necessary," the saying goes.

The only reason that the President wouldn't follow the law regarding FISA and couldn't be bothered to write up a warrant is because they were spying on people with no intelligence value. Maybe political enemies. Maybe activists or grassroots leaders. Maybe foreign diplomats. Who knows? We certainly won't, because this horrible deal shuts down any ability to find out. And this bill actually ratifies a lot of the warrantless spying in which Bush and his cronies have engaged since 2001. It allows for "bulk collection" - the mass sweeping up of all communications into a giant drift-net. And it has an exception for "exigent circumstances" - to be judged by the Attorney General and the Director of National Intelligence - in which case the executive wouldn't need to consult any judge before commencing with spying. That's what eviscerates the Fourth Amendment and renders the rest of the bill kind of impotent. And quoting a fact sheet from Sen. Feingold's office:

If the government goes forward with surveillance before obtaining court approval, and the court subsequently determines that the government’s surveillance violated the law, the government can nonetheless keep and use any information it obtained. The compromise does not include a provision from the Senate Judiciary Committee bill that gives the FISA Court discretion to impose restrictions on the use of information about Americans acquired through procedures later determined to be illegal by the FISA court.

This is a better bill than some of the FISA fixes offered previously. But FISA, itself a rubber stamp most of the time for electronic surveillance, needed fixing only in TIGHTENING civil liberties protections, and the end result of this bill loosens them.

As for Obama, it's important to understand that he is no saint who is the perfect vessel of all things sweet and good, nor is he a depraved animal of the same stripe as a John McCain on failed conservative ideology. He's somewhere in the middle - and when we disagree with him, we have to let him know. For all the disappointment, one thing that has held so far throughout this election is that Obama listens to criticism and mostly reacts to it. Thereore, that criticism must be sustained and loud. If we truly are the change we've been waiting for, then we must be diligent in forcing Obama in the direction we desire.

The Speaker's Lost Her Conscience

We're seeing a real separation of those on the side of justice and those on the side of cover-ups in the FISA fallout. On the side of justice, for example, is Patrick Leahy:

But after months of negotiations, the House today unveiled a new FISA bill that I cannot support. While I applaud the fact that this legislation includes some of the important surveillance protections we wrote into the Senate Judiciary Committee bill last year, it fails to hold the Bush-Cheney Administration accountable for its illegal wiretapping program.

I will oppose this new FISA bill when the Senate votes on it next week. We must do everything we can to protect Americans from the Bush-Cheney Administration's erosion of our civil liberties and callous disregard for the rule of law -- and this new FISA bill fails that test.

Of course, he was cut out of the decision-making on this "deal."

On the side of cover-ups is Nancy Pelosi:

Tomorrow, we will be taking up the FISA bill. As you probably know, the bill has been filed. It is a balanced bill. I could argue it either way, not being a lawyer, but nonetheless, I could argue it either way. But I have to say this about it: it's an improvement over the Senate bill and I say that as a strong statement. The Senate bill is unacceptable. Totally unacceptable. This bill improves upon the Senate bill.

But you probably know that. What you may not know is that it's improvement over the original FISA bill as well. So it makes progress in the right direction. But these bills depend on the commitment to the Constitution of the President of the United States and of his Justice Department. So while some may have some complaints about this, that, or the other about the bill, it is about the enforcement, it is about the implementation of the law where our constitutional rights are protected.

But I'm pleased that in Title I, there is enhancement over the existing FISA law. Reaffirmation, I guess that's the word I'd looking for. A reaffirmation that FISA and Title III of the Criminal Code are the authorities under which Americans can be collected upon. It makes an improvement over current law and the Senate bill in terms of how you can collect on Americans overseas.

It's an improvement over the Senate bill in terms of – the Senate wanted to say, “Okay, we will agree to exclusivity,” which is, in my view, the biggest issue in the bill, that the law is the exclusive authority and not the whim of the President of the United States. They said, “We will agree to exclusivity, but only a narrow collection of things will fall that that category. Under the rest, the President has inherent authority under the Constitution.” That's out. That's out, thank heavens.

And it is again in Title II, an improvement over the Senate bill in that it empowers the District Court, not the FISA Court, to look into issues that relate to immunity. It has a strong language in terms of an Inspector General to investigate how the law has been used, is being used, will be used.

So that will be legislation that we take up tomorrow. We will have a lively debate I'm sure within our caucus on this subject and in the Congress. It has bipartisan support.

She's out of her mind. She says that the problem was with implementation of the bill, yet the bill lets the White House off the hook for 7 years' worth of illegal implementation of warrantless spying. She won't say that the District Court will assuredly immunize the telecoms because they are empowered only to see if the President gave them a piece of paper which said "this is legal." She thinks exclusivity is the most important part because that's what Feinstein told her, but if the President can hand over a piece of paper and make the illegal suddenly legal, there's nothing exclusive about FISA.

Before Pelosi became the Minority Leader in 2003 she was the ranking member of the Intelligence Committee. She was briefed on these activities and knew at least the colors of what was taking place, if not the details. She's protecting her capo Steny Hoyer and protecting herself. This is what Nancy's allowing to go forward:

Reports of the newest FISA compromise indicate that, on telecom immunity, a federal court would be compelled to grant the telecoms immunity if there was substantial evidence that the Bush administration assured them that the warrantless surveillance program was legal. Doesn't that actually endorse and extend to private actors the Nixonian view that if the president says it's legal, it's legal, regardless of what the law says and the Constitution says? Wouldn't that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?

Despite authorizing a monarchy today, Pelosi managed to swear in Rep. Donna Edwards, a real progressive that tossed out her telecom-money-besotted chum Al Wynn, and actually used the words "Do you solemnly swear to support and defend the Constitution of the United States?"

To which I would have said, "I don't know, Madam Speaker. Do you?"

...incidentally, we're hearing that Sen. Obama's staff is reviewing the FISA issue. His staff has known what was about to happen for some time. He can still end this tomorrow. He can make sure this never sees the light of day in the Senate. I know it would be terribly partisan to stand up for the rule of law and the Constitution, but it's well within his capacity. We'll have that test of his conscience in the coming days.

Pathetic, Corrupt, Spineless Democratic Leadership

I congratulate Barack Obama on his primary win and think he has the opportunity to bring forward meaningful change in America. In fact, he can start today. He can go to the well of the Senate and demand that the party he now leads not authorize new powers to spy on Americans and immunize corporations who broke the law with their illegal spying in the first place.

The House Intelligence Committee's top Democrat disclosed late Tuesday that he is ready to accept a Republican-brokered deal to rewrite the nation's electronic surveillance laws, signaling that a long-running congressional impasse could soon be coming to an end.

House Intelligence Chairman Silvestre Reyes told CongressDaily that he is "fine" with language offered by Senate Intelligence ranking member Christopher (Kit) Bond and other Republicans to overhaul the Foreign Intelligence Surveillance Act.

Notably, the GOP language, which was offered a day before the recent congressional recess, would leave it up to the secret FISA court to grant retroactive legal immunity to telecommunications companies that have helped the Bush administration conduct electronic surveillance on the communications of U.S. citizens without warrants [...]

"It's about finding middle ground and we have middle ground," Reyes said of the compromise offered by Republicans. "It's not going to please everyone but let's get on with it."

Reyes said he believes enough Democrats will support the proposal to pass it in the House.

Barack Obama could put an end to this today if he wanted. He could tell his colleagues in the House and the Senate that they should not work so hard to codify into law what his opponent is calling for - the ability for an executive to secretly spy on Americans.

If elected president, Senator John McCain would reserve the right to run his own warrantless wiretapping program against Americans, based on the theory that the president's wartime powers trump federal criminal statutes and court oversight, according to a statement released by his campaign Monday.

Monday, McCain adviser Doug Holtz-Eakin, speaking for the campaign, disavowed those statements, and for the first time cast McCain's views on warrantless wiretapping as identical to Bush's.

"[N]either the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001. [...]

We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution."

The Article II citation is key, since it refers to President Bush's longstanding arguments that the president has nearly unlimited powers during a time of war. The administration's analysis went so far as to say the Fourth Amendment did not apply inside the United States in the fight against terrorism, in one legal opinion from 2001.

This really is identical to George Bush's position and now the Democrats in the House are signaling their willingness to go along with it. Obama positions himself as a new kind of Democrat who wants to change Washington and has a background as a Constitutional scholar. There is no other issue which both shows the rot of the Democratic leadership and their disinclination to enforce or even recognize the Constitution than this one.

Senator Obama has the power to end this. I'm sorry to not give him a honeymoon after the primary victory but events on the ground are moving quickly. There are a few decent elements in the compromise bill, like exclusivity for the FISA Court and an IG report on the legality of the current surveillance program, but it's not nearly good enough. This is another in a long series of caves, and an excellent opportunity for Obama to show his leadership skills and where he stands on civil liberties and Constitutional issues. We know that McCain is a mirror of Bush on that score.

Senator Obama, you are the party's leader. Do something about this. Today.

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.

FISA Developments

Glenn Greenwald sez that the Dems are about to cave on FISA. TPM Muckraker has more and the details are quite different from what Greenwald reported.

The proposal, the contents of which the aide described to me, does not contain a measure granting retroactive immunity to the telecoms for their participation in the warrantless surveillance program. The aide also stressed that the bill "is in the exact same ballpark" in terms of civil liberties protections as the RESTORE Act, the bill which the House passed last year. The draft as described by the aide:

-- requires an audit by the Department of Justice's inspector general of the administration warrantless wiretapping program (not in the Senate bill)

-- has a two-year sunset, as opposed to the Senate's surveillance bill, which has a six-year sunset

-- has an "exclusivity" provision, which specifies that the President cannot circumvent the bill with claimed Constitutional powers (not in the Senate bill)

-- has guidelines to prevent the NSA from tapping foreigners' communications into the U.S. when the real intention is to target a U.S. person, which is called "reverse targeting" (not in the Senate bill)

-- requires pre-approval by the Foreign Intelligence Surveillance Court of the "basket warrants" (surveillance of entire terrorist groups, as opposed to just individuals) allowed by the House and Senate bills, except in emergency situations, where the government must seek approval within seven days after initiating surveillance. (also in contrast to the Senate bill)

The compromise bill does not have immunity, but there's still a possibility that they'll ping-pong the bill back and forth from the House to the Senate to get it back in. I'd have to look further, but the compromise bill does look to me to be "in the ballpark" of the RESTORE Act, which was a good bill. We're not out of the woods on this and all your reps. deserve a call. But it's not clear to me that this is a bad development... yet.

Conflicting Statements On FISA

There's considerable evidence that House and Senate negotiators are deadlocked on whether to give Bush everything he wants, including immunity for his lawbreaking, on FISA.

House Majority Leader Steny H. Hoyer said Wednesday the House will not take up an electronic surveillance measure this week, further delaying any decisions on the controversial measure.

Hoyer said in his weekly press conference that he hoped to wrap up work on an update to the Foreign Intelligence Surveillance Act; “towards the end of this week or the beginning of next week.”

However, the majority leader acknowledged that there were “still disagreements” within the Democratic caucus over the issue of granting immunity to telecom companies who aided the government in the wiretapping program [...]

Although Democratic leaders insist they are working feverishly to iron out their differences, one House member—speaking on the condition of anonymity—suggested it could be a long time, if ever, before the bill was brought for a vote.

“A lot of people think the politics of doing nothing on this issue are very good for both sides of the political spectrum,” they said.

Behind the scenes, it appears that there are internal differences between Democrats over the immunity issue. However, House Speaker Nancy Pelosi pointed to exclusivity as the real issue.

In a conference call with bloggers today, House Speaker Nancy Pelosi (D-CA) made it clear that her highest priority for a surveillance bill was that it contain a so-called "exclusivity" provision -- a measure that would explicitly state that the bill would be the "exclusive means" by which the government would conduct surveillance, or in other words, the president does not have the power to ignore the law if he/she so pleases.

"Exclusivity is the issue," she said.

Of course, the original FISA bill had "exclusivity" in it. Bush broke the law. Making FISA the exclusive means for intelligence gathering and surveillance is nice, but it just says you can't break the law. Amnesty says that breaking the law doesn't matter.

I think what's causing this new-found concern against amnesty within the Democratic caucus are the stories about major privacy violations as a result of national security letters, which allowed the FBI to illegally obtain personal information of Americans, and this new question about emails, which puts the fight over FISA into an entirely new context:

The fight in Congress and the big push for expanded wiretapping powers has nothing to do with intercepting foreign-to-foreign phone calls inside the United States without a court order. In fact, it turns out that the nation's secret wiretapping court is fine with that.

That extraordinary admission came from Assistant Attorney General for National Security Kenneth Wainstein at a breakfast on Monday, according to the Washington Post.

"At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States."

That would make sense since email doesn't go directly to a device in most cases, it goes to a server that holds the email until the recipient(s) come to pick up the email -- which could be and often is from different parts of the world -- think of any business traveler.

DNI Michael McConnell, the serial exaggerator who claims to be a non-political straight shooter, himself kept saying the NSA lost 70 percent of its capabilities after the ruling.

If that's the case, that means that 70 percent of what the NSA does is collect emails inside United States telecom infrastructure and service providers.

Really? If that's what tens of billions of dollars are going to the NSA for annually, we don't need to give them more power to read emails, we need to get them to learn to do real intelligence collection.

I think that Democrats took a look at the loss of privacy on all these other fronts and decided that they want to actually know the breadth of it with regard to telecom surveillance. You cannot give cover to the executive to gather intelligence at his discretion without oversight or judicial review and expect there to be no abuses. This is all devastating evidence in favor of stopping any talk of immunity. DFA is fighting very hard against those who would give the President and his corporate buddies full carte blanche to break the law. We need to fight for justice on this one. No amnesty.