Washington: Still An Accountability-Free Zone

Steny Hoyer has decided to take on the mantra of looking forwards and not backwards.

Sen. Chris Dodd (D-Conn.) and a handful of prominent Democrats said yesterday they would introduce legislation to strip telecom giants of immunity for possibly violating customer privacy by providing information to the government without a warrant.

But Hoyer seems uninterested in pushing the legislation through the House.

"I don't think revisiting that issue is going to get us anyplace," Hoyer told The Hill today.

Nope, sure won't! If you don't count a place of... justice and accountability.

Dan at Pruning Shears wonders if Hoyer is "the worst Democrat alive, or ever?" It's a very difficult question. Actually, he's just a front for corporate hegemony, in this case the telecoms.

I pretty much knew that Dodd's bill was going nowhere, but Hoyer's rationale is what got me.

Not Leaving It Alone

Chris Dodd and some colleagues have announced a bill to repeal retroactive immunity from the FISA law:

Senators Chris Dodd (D-CT), Patrick Leahy (D-VT), Russ Feingold (D-WI), and Jeff Merkley (D-OR) announced today that they will introduce the Retroactive Immunity Repeal Act, which eliminates retroactive immunity for telecommunications companies that allegedly participated in President Bush’s warrantless wiretapping program.

“I believe we best defend America when we also defend its founding principles,” said Dodd. “We make our nation safer when we eliminate the false choice between liberty and security. But by granting retroactive immunity to the telecommunications companies who may have participated in warrantless wiretapping of American citizens, the Congress violated the protection of our citizen’s privacy and due process right and we must not allow that to stand.”

Senator Leahy, Chairman of the Senate Judiciary Committee said, “Last year, I opposed legislation that stripped Americans of their right to seek accountability for the Bush administration’s decision to illegally wiretap American citizens without a warrant. Today, I am pleased to join Senator Dodd to introduce the Retroactive Immunity Repeal Act. We can strengthen national security while protecting Americans’ privacy and civil liberties. Restoring Americans’ access to the courts is the first step toward bringing some measure of accountability for the Bush-Cheney administration’s decision to conduct warrantless surveillance in violation of our laws.”

Let's make it clear up front: This isn't going to pass. Even if you could get 60 votes for it, which you can't, you have an occupant in the White House who voted for immunity, opening the possibility of a veto if it miraculously got through the Congress.

What this does signify is that some members of Congress will not be content to let the past remain in the past, especially if a great wrong was committed. Maybe they get 30 votes for immunity this year. Maybe 35 next year. And so on. But they keep offering it up, because they don't see the justice in allowing companies immunity for perpetrating a great error by aiding and abetting the government in illegal activities that violated the constitution. So they'll continue to push this at the legislative level. Meanwhile, at the judicial level, EFF and other groups continue to sue the government for real civil penalties to this lawbreaking.

It seems to me that, to succeed in politics, you have to be relentless. Introducing bills like this year after year is one example.

Prioritize The Populism

Out of nowhere, the Obama Administration and its federal agencies have started to crack down on speculation and monopolies, while improving individual safety. These populist positions deserve pride of place from the White House; they should talk a lot more about them.

Hold a press event about stopping oil speculation:

In a big departure from the hands-off approach to market regulation of the last two decades, the chairman of the Commodity Futures Trading Commission, Gary Gensler, said his agency would consider new limits on the volume of energy futures contracts that purely financial investors would be allowed to hold.

The agency also announced that it would pull back part of the veil on the oil and gas markets, publishing more detailed information about the aggregate activity of hedge funds and traders who arbitrage between domestic and foreign energy prices.

....Oil prices have swung wildly in the last year, hitting about $145 a barrel last summer, then plunging to $33 in December before rising to about $70.

....A growing number of critics have blamed some of the extreme volatility on the role of purely financial investors — those who are simply betting on the direction of energy prices, as opposed to those who actually use such products, like airlines....Non-commercial traders accounted for almost a fifth of the activity in several major oil and gas products for the week that ended June 30, according to data compiled by the commodities agency.

Matt Taibbi, in his great story on Goldman Sachs, writes about how last year, "a barrel of oil was traded 27 times, on average, before it was actually delivered and consumed." That's just unconscionable, and the CFTC has a role to play in dialing that back.

Furthermore, the President should deliver a live speech on telecom monopolies:

The U.S. Justice Department has begun looking at big telecom companies to try to determine if they have abused their market power, the Wall Street Journal reported in its online edition Monday.

The journal, which cited people familiar with the matter, said that the Antitrust Division's review was in its very early stages and was not official.

Lawmakers have recently raised questions about whether large wireless carriers were hurting smaller rivals by entering exclusive agreements with the makers of popular phones.

I think they could reel in a lot of people by telling them they shouldn't have to change carriers to use an iPhone.

Finally, rather than a fact sheet and a webcast, how about a prime-time special on food safety?

The Food and Drug Administration (FDA) is issuing a final rule to control Salmonella contamination of eggs during production. This rule is estimated to reduce the number of foodborne illnesses associated with consumption of raw or undercooked contaminated shell eggs by approximately 60%, or 79,000 illnesses every year, and will generate annual savings of over $1 billion [...]

Stepped Up Enforcement in Beef Facilities: FSIS is issuing improved instructions to its workforce on how to verify that establishments handling beef are acting to reduce the presence of E. coli. Also, FSIS is increasing its sampling to find this pathogen, focusing largely on the components that go into making ground beef.

Preventing Contamination of Leafy Greens, Melons, and Tomatoes: By the end of the month, FDA will issue commodity-specific draft guidance on preventive controls that industry can implement to reduce the risk of microbial contamination in the production and distribution of tomatoes, melons, and leafy greens. These proposals will help the Federal government establish a minimum standard for production across the country. Over the next two years, FDA will seek public comment and work to require adoption of these approaches through regulation [...]

Building a National Traceback and Response System: A system that permits rapid traceback to the source of foodborne illness will protect consumers and help industry recover faster. Yet despite the dedicated efforts of food safety officials across the country, our current capacity to traceback the sources of illness suffers from serious limitations [...]

Improving Organization of Federal Food Safety Responsibilities: Building a more effective safety system requires federal agencies to improve management of their food safety responsibilities and coordinate more effectively with each other.

I hear that the President's approval rating is sinking in Ohio. They are experiencing a terrible economy like the rest of the country, but they also see bank bailouts without the same attention paid to the auto industry, and think they're getting the shaft. Maybe if they knew that their government was trying to stop oil speculation to lower the price of their gas, stop the phone companies from ripping them off, and stop food manufacturers from making them sick, they'd have a little more comfort that their President is on their side.

It's Not Like There Would Be Anything Noteworthy In Bill Clinton's Email

Well here we go again.

WASHINGTON — The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said.

The agency’s monitoring of domestic e-mail messages, in particular, has posed longstanding legal and logistical difficulties, the officials said.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

As Rush Holt, one of the few in Congress who seems to know what he's talking about with this program, “Some actions are so flagrant that they can’t be accidental." In one instance, the NSA accessed Bill Clinton's email:

(An analyst) said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

I'm sure that investigation was completely stringent. And I'm sure that "ban" on explicitly singling out individuals was strictly enforced. Because why would anyone want to know what Bill Clinton's doing?

Don't B.S. us with the fig leaf of "inadvertent overcollection." This happens virtually the same way every time.

Every time new revelations of illegal government spying arise, the same exact pattern repeats itself: (1) euphemisms are invented to obscure its illegality ("overcollection"; "circumvented legal guidelines"; "overstepped its authority"; "improperly obtained"); (2) assurances are issued that it was all strictly unintentional and caused by innocent procedural errors that are now being fixed; (3) the very same members of Congress who abdicate their oversight responsibilities and endlessly endorse expanded surveillance powers in the face of warnings of inevitable abuses (Jay Rockefeller, Dianne Feinstein, "Kit" Bond, Jane Harman) righteously announce how "troubled" they are and vow to hold hearings and take steps to end the abuses, none of which ever materialize; (4) nobody is ever held accountable in any way and no new oversight mechanisms are implemented; (5) Congress endorses new, expanded domestic surveillance powers; and then: (6) new revelations of illegal government spying emerge and the process repeats itself, beginning with step (1).

And if you thought that the Congress or the Justice Department could at least revisit step (5) once step (1) re-occurs over and over again, Attorney General Eric Holder helpfully informs you that telecom immunity and the FISA Amendments Act is settled law, unable to be tweaked or fixed or even investigated. Holder wouldn't even stand by his statement that violating FISA breaks the law - he can't now, because as the Attorney General he would be obligated to act on his words.

FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration's warrantless wiretapping program. At the letter was prompted in part by a recent speech that I'm sure you're aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.

In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as -- as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard...

FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that's certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.

HOLDER: Yes, well what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with the dictates of -- of FISA, and I think I used the word "contravention," and as a result I thought that the policy was an unwise one. And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.

FEINGOLD: But did you think it was illegal?

HOLDER: Well, I thought that, as I said, it was inconsistent with -- with the FISA statute and unwise as a matter of policy.

And that sound you hear is the soul of Eric Holder breaking.

The rule of law was nice to have around for a while. But it's completely broken and it's not coming back.

Vaughn Walker Dismisses The FISA Lawsuits... Or Does He?

Looks like Vaughn Walker's hands were tied by the law.

A federal judge on Wednesday threw out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President George W. Bush after the 2001 terrorist attacks.

Chief Judge Vaughn R. Walker of Federal District Court in Northern California said that although consumer and privacy groups raised important constitutional issues in their claims, Congress had left no doubt about its “unequivocal intention” when it passed a measure last summer giving immunity to phone carriers in the wiretapping program.

The ruling represents a major victory not only for AT&T and other carriers, which faced potential damages of billions of dollars if they lost the cases, but also for intelligence officials in Washington who had fought assertively in their defense. Officials from both the Bush and the Obama administrations maintained that the cooperation of the phone companies has been vital to national security and that penalizing them for their participation would jeopardize important surveillance operations.

Lawyers for the plaintiffs, led by the Electronic Frontier Foundation, a privacy and civil liberties group, said they would appeal to the United States Court of Appeals for the Ninth Circuit.

They'll lose in the Ninth Circuit as well, given that they are bound by precedent, and in the Supreme Court as currently constructed, I'd find it unlikely that they'd turn over Congressional law. Although, they probably should, given the violations to the Fourth Amendment to the Constitution and the Congress taking over the functions of the judiciary in terms of holding companies liable.

However, in a separate ruling, Walker did cause some hackles to be raised inside the Justice Department.

A federal judge yesterday declined to penalize Justice Department lawyers for flouting his orders in a sensitive electronic surveillance case where the Obama administration sided with its predecessors to the alarm of civil liberties groups.

But U.S. District Judge Vaughn Walker did not give the government what it wanted, either. The San Francisco-based judge batted away fresh Justice Department attempts to appeal his rulings, which have been critical of President Obama's approach to protecting state secrets.

Instead, the judge directed attorneys for the administration and for a now-defunct Oregon charity to prepare court filings this summer about the legality of the government's warrantless eavesdropping program and the scope of the executive branch's authority.

Good for WaPo to focus on the full measure of Walker's rulings, which Marcy Wheeler discusses further. In addition, Wheeler notes that there's an additional case, Jewel, which sues Bush himself. While the Congress rules on holding the telecoms harmless, they did not do the same for the government.

Lest any further reassurance be necessary, the SSCI report states: “The committee does not intend for [section 802] to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program.”

The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v AT&T lawsuit (C 06-0672 VRW) are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge. Jewell v United States, C 08-4373 VRW, filed September 18, 2008. Jewell thus joins several other cases in this MDL which seek relief only against government defendants.

There's a lot going on with these lawsuits, and I would say that the Justice Department shouldn't close the file just yet.

Hey Schieffer, Incorporate Some Breaking News

Waiting on the debate, which I think has about a 50/50 chance of turning into a smear factory. But if it does, it would be nice if Bob Schieffer could work it around to one of today's top stories and see what the Maverick would have to say in his defense:

Early in 2007, just as her husband launched his presidential bid, Cindy McCain decided to resolve an old problem -- the lack of cellular telephone coverage on her remote 15-acre ranch near Sedona, nestled deep in a tree-lined canyon called Hidden Valley.

By the time Sen. John McCain's presidential bid was in full swing this summer, the ranch had wireless coverage from the two cellular companies most often used by campaign staff -- Verizon Wireless and AT&T.

Verizon delivered a portable tower know as a "cell site on wheels" -- free of charge -- to Cindy McCain's property in June in response to an online request from Cindy McCain's staff early last year. Such devices are usually reserved for restoring service when cell coverage is knocked out during emergencies, such as hurricanes.

In July, AT&T followed suit, wheeling in a portable tower for free to match Verizon's offer. "This is an unusual situation," said AT&T spokeswoman Claudia B. Jones. "You can't have a presidential nominee in an area where there is not cell coverage."

If you think this sounds perfectly reasonable, consider that Ted Stevens is facing jail time for pretty much exactly the same thing. Oh, and the McCain campaign's spin is that the Secret Service made him do it - which the Secret Service denies.

"The Washington Post story regarding Verizon providing a cell tower to the McCain Ranch is wrong," (Verizon PR guy) Thonis said. "Verizon received a request from Mrs. McCain, but declined.

"Subsequent to that, the Secret Service made a legitimate request for a temporary tower for its work and Verizon complied as is required by our contract with the agency. The Secret Service request, made on May 28, specifically said it needed the service urgently and requested that Verizon 'explore every possible means of providing an alternative cellular or data communications source in the referenced area and provide any short term implementation of any type as a solution in the interim."

But James Grimaldi, the Post reporter who broke the story, has the Secret Service saying they did not formally request the tower.

Secret Service spokesman Eric Zahren told the paper: "This was something that was being addressed before we were out there."

Just the Verizon flack's protestations are revealing. They confirm that Cindy McCain asked for a cell phone tower for her personal use - and pretty much only the McCain family's use, as there are few other homes in the area. They confirm that the request was in well before McCain took the nomination.

McCain, of course, regulates these phone companies as part of his day job, and mixes with their lobbyists on his campaign staff.

Ethics lawyers said Cindy McCain's dealings with the wireless companies stand out because Sen. John McCain is a senior member of the Senate Commerce Committee, which oversees the Federal Communications Commission and the telecommunications industry. He has been a leading advocate for industry-backed legislation, fighting regulations and taxes on telecommunications services. (he was a past chair of the Commerce Committee, too -ed.)

McCain and his campaign have close ties to Verizon and AT&T. Five campaign officials, including campaign manager Rick Davis, have worked as lobbyists for Verizon. Former McCain staffer Robert Fisher is an in-house lobbyist for Verizon and is volunteering for the campaign. Fisher, Verizon chief executive Ivan Seidenberg and company lobbyists have raised more than $1.3 million for McCain's presidential campaign and Verizon employees are among the top 20 corporate donors over McCain's political career, giving more than $155,000 to his campaigns.

McCain's Senate chief of staff Mark Buse, senior strategist Charles R. Black Jr., and several other campaign staffers have registered as AT&T lobbyists in the past. AT&T Executive Vice President Timothy McKone and AT&T lobbyists have raised more than $2.3 million for McCain. AT&T employees have donated more than $325,000 to McCain campaigns, putting the company in the No. 3 spot for career donations to McCain, according to the nonpartisan Center for Responsive Politics.

I don't know, rather than Bill Ayers, that might be something the public would like to know, Mr. Schieffer.

Or, you could mention the international terrorists tied to John McCain, otherwise known as "anti-Castro Cubans".

The Fundamentals Of McCain-Palin Lies Are Strong

People are really getting into the swing of chronicling the lies of the McCain-Palin ticket. Practice makes perfect, of course, and the team is giving us the equivalent of summer two-a-days.

Last night Sarah Palin retold a debunked lie about the TelePrompTer breaking during her RNC convention speech, when there is photographic and eyewitness evidence to the contrary.

Palin and McCain continue to tell the completely discredited story about Sarah saying "thanks, but no thanks" to the Bridge To Nowhere, and McCain compounded it yesterday by claiming that Palin vetoed earmarks as Governor of Alaska, which you can't do.

But now we have the great Magilla Gorilla, the one that should get the "serial liar" meme cruising to the top of the charts.

Asked what work John McCain did as chairman of the Senate Commerce Committee that helped him understand the financial markets, the candidate's top economic adviser wielded visual evidence: his BlackBerry.

"He did this," Douglas Holtz-Eakin told reporters this morning, holding up his BlackBerry. "Telecommunications of the United States is a premier innovation in the past 15 years, comes right through the Commerce Committee. So you're looking at the miracle John McCain helped create and that's what he did."

I think he's talking about spectrum policy which led to things like the Blackberry. The thing is that telecommunications is actually pretty poor in the United States. We're behind much of the industrialized world in broadband penetration and overall cellular signal strength. Also there's the little matter that Research in Motion, actual creators of the Blackberry, are in Canada.

I guess McCain is trying to disavow Holtz-Eakin's comment as we speak. But there's no reason to be so generous. Al Gore never claimed he invented the Internet yet the label became a punchline for the entire campaign. McCain's top economic adviser taking credit for a range of telecom innovations should be met the same way.

Also, do you really want to tie yourself that close to the hated telecom industry?

UPDATE: Obama campaign comments:

"If John McCain hadn't said that 'the fundamentals of our economy are strong' on the day of one of our nation's worst financial crises, the claim that he invented the BlackBerry would have been the most preposterous thing said all week," said Obama campaign spokesman Bill Burton.

Love them coming back to hammering the "fundamentals" theme.

UPDATE II: Documentary evidence!

Stupidest article of the Bush era

There have been a lot of incidents of appallingly bad journalism over the past eight years: those relentlessly focused on trivialities, stories inventing fake scandals out of whole cloth, the ones amplifying Bush lies and cheerleading for war. Yet for some reason, this story by Dan Eggen and Paul Kane in Sunday's Washington Post strikes me as the most unbelievable, factually incorrect and just plain stupidest article of the Bush era.

Headline:

Recent Political Wins Smell of Compromise

Lately, President Employs a Little-Used Tool

I don't know if you're aware of it, but getting full immunity for lawbreaking, expanded unchecked surveillance powers, and no-strings funding for endless war in Iraq is the result of compromise!

The Very Serious Journalists at the Post told me so.

The decider has become the compromiser.

President Bush has racked up a series of significant political victories in recent weeks, on surveillance reform, war funding and an international agreement on global warming, but only after engaging in the kind of conciliation with opponents that his administration has often avoided.

This must be the kind of conciliation where you threaten to veto everything unless you get exactly what you want and then the other side gives it to you. That is, after all, the best kind of conciliation.

Two weeks ago, for example, Bush signed a $162 billion spending bill for the wars in Iraq and Afghanistan that he hailed as a product of bipartisan cooperation. But the final legislation was far more expensive than Bush had said he would accept, and it included expanded G.I. Bill college benefits and other provisions that he had opposed.

The compromise, you see, was Bush accepting MORE money for war than he wanted. He wanted $100 billion and received $162 billion. There are absolutely no strings on this money, not even the fake "benchmarks" that were imposed last year. The domestic priorities attached to the bill are absolutely no different from last year, when the Democrats inserted minimum wage increases to the war funding bill. So this compromising compromiser got everything he wanted for an endless war where dozens of Iraqis and Americans continue to die every day.

A new surveillance bill signed into law Thursday also marked a significant victory for Bush, largely because the White House won legal immunity for telecommunications firms that helped in eavesdropping after the Sept. 11 attacks.

Yet even there, the compromise legislation included reforms that the administration had initially opposed, including language making clear that the measure is the exclusive legal authority for government spying. The changes allowed the bill to easily overcome opposition from Democratic leaders and civil liberties groups.

This is a bill that the President's lackeys in Congress have admitted gives them more than they ever expected to receive, a better deal that they managed to squeeze out of the Republican-led 109th Congress of Denny Hastert and Bill Frist. Take a look at this detailed flowchart to understand that this new law allows for mass untargeted surveillance of every piece of data between foreign and US recipients, without any requirement of probable cause, without even supplying a phone number or email address attached to the surveillance, and with the added bonus of hiding the lawbreaking warrantless wiretapping program approved by the President and immunizing their criminal activity.

This was a "compromise."

Then there's this whopper:

Bush's conciliatory mood extended to the Group of Eight summit last week in Japan, where the United States for the first time joined the other major industrialized countries in agreeing to try to halve greenhouse gas emissions by 2050. Although environmental groups said the deal lacked vital specifics, it marked a long journey for a U.S. president who came to office questioning the science of climate change.

Just TODAY, the White House announced they would defy a Supreme Court ruling and refuse to regulate greenhouse gases through the EPA, disavowing the agency's own reports:

To defer compliance with the Supreme Court's demand, the White House has walked a tortured policy path, editing its officials' congressional testimony, refusing to read documents prepared by career employees and approved by top appointees, requesting changes in computer models to lower estimates of the benefits of curbing carbon dioxide, and pushing narrowly drafted legislation on fuel-economy standards that officials said was meant to sap public interest in wider regulatory action.

The decision to solicit further comment overrides the EPA's written recommendation from December. Officials said a few senior White House officials were unwilling to allow the EPA to state officially that global warming harms human welfare. Doing so would legally trigger sweeping regulatory requirements under the 45-year-old Clean Air Act, one of the pillars of U.S. environmental protection, and would cost utilities, automakers and others billions of dollars while also bringing economic benefits, EPA's analyses found.

And the G8 pledge does nothing, it has no targets, provides no numbers, and would not bind any member nation to any policy. Furthermore, does this sound like some conciliatory figure?

President George Bush signed off with a defiant farewell over his refusal to accept global climate change targets at his last G8 summit.

As he prepared to fly out from Japan, he told his fellow leaders: "Goodbye from the world's biggest polluter."

It is almost impossible to believe that any journalistic enterprise could come up with such dreck on their news pages, attributing these massive rationalizations and misinterpretations as fact. But this is the Beltway mindset, that "bipartisanship" is supremely valued and always just, and if the dirty hippies are mad about it then Washington must have done its job properly. So they literally just make shit up to feed the narrative of Bush as some transactional compromising figure instead of pushing a radical agenda based on supreme executive power. This is the same guy threatening to veto this:

The House approved a homeless veterans housing bill overwhelmingly Wednesday, even though White House advisers warned they'd urge President Bush to veto it.

The bill sponsored by Rep. Al Green, D-Texas, authorizes spending $200 million on housing and services for veterans, requires 20,000 rental vouchers a year for low-income housing for veterans and authorizes $1 million for grants to nonprofit groups to provide housing and services for veterans.

The bill, which passed 412-9, also creates a job in the Department of Housing and Urban Development for someone to coordinate with Veterans Affairs on homelessness and make regular reports to Congress on the issue.

He wants to veto a bill designed to house homeless veterans. Yet the Very Serious Journalists of Washington wants to tell me that there's some great change here. They would love to see that so they can put their relentless cheerleading for this deeply unpopular oaf behind them, so they can believe the system worked, and so everyone can go have cocktails at the bar safe in the knowledge that the betters in the Beltway are doing the glorious and bipartisan work of the people.

The truth is that there has been a hostile takeover at all levels of government that is undermining the very fabric of the nation. But the Very Serious Journalists don't want you to peek behind the curtain. If I didn't know better, I'd think the writers of this fable were Mr. and Mrs. Aesop.

Feinstein's Epic FAIL

As bad a week as it's been for John McCain, it's been a TERRIBLE week for Dianne Feinstein. She watched in the Senate Judiciary Committee as Attorney General Michael Mukasey, who she voted to confirm, put on as bad a performance as Alberto Gonzales ever did, covering for the Administration's criminal actions, from torture to politicization of the Justice Department. Then, of course, there was the FISA vote, where she bowed to President Bush and voted to participate in a coverup. Despite this public statement just two weeks before the vote:

I believe the court should not grant immunity without looking into the legality of the companies' actions. So if there is an amendment that does support this, I would intend to vote for it.

When it came down to voting on precisely that amendment, she weaseled her way out of it.

Amendment Number: S.Amdt. 5059 to H.R. 6304 (Foreign Intelligence Surveillance Act of 1978)

Statement of Purpose: To limit retroactive immunity for providing assistance to the United States to instances in which a Federal court determines the assistance was provided in connection with an intelligence activity that was constitutional.

Feinstein (D-CA), Nay

And of course, she voted against stripping immunity, for cloture, and for the final bill.

Then there's this water bond which is more of a true compromise for DiFi, but still includes funds for building dams, and ignores unspent water funds from a 2006 bond issue. So the idea is to borrow on top of the borrowing.

Courage Campaign is considering whether or not to push censure, but CREDO Action isn't waiting to voice their displeasure. From an email:

On July 9th, sixty-nine senators voted to gut the Bill of Rights. They voted to hand President Bush the power to spy on Americans without warrants, and to grant retroactive immunity to the telecoms who allegedly helped him break the law in the past.

No wonder the Associated Press headline following the bill's passage read, "Senate bows to Bush."

So why does a president with the lowest approval ratings since the advent of polling have the power to eviscerate the Constitution?

Because Sen. Feinstein gave it to him.

We can't undo what our senators have done. But we can tell them that we can't believe they'd rather protect President Bush and his law-breaking cronies than the civil liberties of all Americans.

Click here to tell Sen. Feinstein that you are watching, that you are disappointed, and that you won't sit idly by while our Congress destroys our Constitution.

After you sign the petition, please be sure to tell a few friends.

It's really the establishment mindset, afraid of being labeled weak and then bowing to the opposition party's demands, and not recognizing the irony, that must be stopped. And there's no greater symbol of that mindset than DiFi

"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.

I May Throw Up

The right is all up in arms that Barack Obama dared to suggest that Americans might want to learn more than one language. George Bush then tried to prove him right with this Great Moment in Presidential Pride:

“Amigo! Amigo!” Mr. Bush called out cheerily in Spanish when he spotted the Italian prime minister. “How you doing, Silvio? Good to see you!” Later, the president wondered about his former Russian counterpart, Vladimir V. Putin. “Did Putin come to see you since I saw you?” he asked Mr. Berlusconi. (He had not.)

He then left the G8 summit with these parting words:

President George Bush signed off with a defiant farewell over his refusal to accept global climate change targets at his last G8 summit.

As he prepared to fly out from Japan, he told his fellow leaders: "Goodbye from the world's biggest polluter."

He then flew off and happily signed the FISA bill that Congress stooped so low to provide him.

This is another shitty day.

Oh, and what Driftglass said.

Obama Wants To Overhaul The Bankruptcy Bill

There's obviously a lot of noise about Barack Obama's "shift to the center" inside the blogosphere, and today it bubbles up into the mainstream. The LA Times thinks that most Democrats don't care (based on nothing but anecdotes from insiders), while the Washington Post thinks his ideology is problematic, saying that liberals are calling him a centrist and Republicans are calling him a liberal, so who knows???

I think these kind of thumbsucker pieces offer little in the way of identifiable information. Then again, so does the blogosphere, increasingly. That herd mentality we've all noticed in the traditional media has definitely migrated over, and the narrative has definitely hardened. There is perhaps no bigger critic of Obama's vote on the FISA bill than I. I have been indirectly and, often, directly warned that I'm wasting energy and hurting efforts to elect him. At the same time, I can't believe that this wasn't a far bigger story, particularly in the blogosphere.

Democratic presidential candidate Barack Obama proposed overhauling bankruptcy laws on Tuesday to ease the impact on people unable to pay their bills because of medical expenses or military service.

Obama, an Illinois senator, took aim at a 2005 overhaul of bankruptcy laws, which was strongly supported by credit card companies and other consumer lenders, that made it tougher for people facing personal bankruptcy to discharge debt.

"I'll reform our bankruptcy laws to give Americans who find themselves trapped in debt a second chance," Obama said at a town hall event in Powder Springs, Georgia, outside of Atlanta.

"While Americans should pay what they owe and we should be fair to those creditors who were fair to their borrowers, we also have to do more for the struggling families who need help the most," he added [...]

In addition, he would make it easier for people over 62 to keep their homes if they are facing bankruptcy and give some relief to people burdened by bills because of a natural disaster.

OK, I don't know if any of you remember, but the 2005 bankruptcy bill was kind of a big deal. Much like FISA, it had no public constituency, was written largely by lobbyists (this time in the credit card and banking industries), and it was an unnecessary ripping of the social safety net at a time when rising health care costs were bankrupting increasing numbers of people. Now, with the mortgage crisis and higher prices on commodities, that number is increasing. Personal bankruptcy filings were up 30% in the first six months of 2007. Paul Krugman called it the beginnings of the debt peonage society, a major advance in the privatization of risk that has contributed to the stratification of income inequality. Free Republic was against it at the time. So was Glenn Reynolds. Joe Biden received the moniker (D-MBNA) for his efforts shepherding through the bill, and it's why he was hated throughout the blogosphere from 2005-2008. This was one of the major betrayals of the last decade, and it loomed large in the creation of the larger blogosphere.

Now Barack Obama becomes one of the only Senators ever to even talk about reforming the bill, and... CRICKETS?

Really?

FISA is terribly important, because core Constitutional rights cannot be trampled upon in a supposedly free society. But the heinous bankruptcy bill is also important, and while not diminishing the importance of the 4th Amendment, it's more visceral to people's lives. People who are finding it impossible to pay their bills, whether because of a catastrophic health issue (1/2 of all personal bankruptcies) or a bad mortgage or an extended stop-loss in Iraq, have almost no recourse but to climb on an endless treadmill of payments to their creditors. We have locked in place a permanent underclass of people working for their debt. Now we have a Presidential candidate making the repeal of this nonsense a plank of his agenda.

I don't know if I'd go as far as Nathan Newman and call Obama a populist, but he makes a pretty compelling argument.

We've been seeing in the blogs and otherwise a lot of beating up on Obama for "moving to the center", which is odd statement about a candidate who in the last few weeks has:

• Come out against the California gay marriage amendment
• Promoted details of a tax plan which would taxes for the working poor and middle class by thousands of dollars each, while massively increasing taxes on the wealthy
• Condemned bad trade deals, enough to raise the ire of the news pages of the Wall Street Journal (which under Murdoch are morphing into as rightwing as the old editorial pages) which characterized his stance as "likely to rile allies."
• And just yesterday called for overhaul of the 2005 bankruptcy bill and denounced McCain for his support of the bill and the banking industry "at the expense of hardworking Americans.''

This is all pretty straight up populist positioning, something I argued Obama should have done more of in the primary earlier, which might have shortened that race considerably, something I think David Sirota would probably agree on in thinking about the economic anger rising across the country.

You can absolutely say that this is Obama's fault, that he is offering conflicting messages and not doing the necessary outreach to reassure his supporters. Of course, he did directly address those who see a "move to the center" in his recent statements, and while I didn't like the entirety of his remarks, he did self-identify as a progressive.

I think there's a lot of merit to the dissent against some of his recent moves, particularly on FISA and his rhetorical sellout to the far right by bringing up mental illness and late-term abortion practices. But there has to be a balance. There's a tunnel vision in the blogs right now, a real sense that everyone is wedded to the "betrayal" narrative with respect to Obama. I can understand why, in this age of Democratic betrayal, people would think that. But if you can recognize those places where Obama has fallen down, you can also recognize those where he stood up, in fact taller than any leading Democrat, on an issue that was part of the progressive core not but three years ago.

I'm not going to like everything Obama does (if he's truly abandoning coordinated campaigns, that's a problem, although I've heard there's less there than meets the eye), and I won't stop putting pressure on him to enact a progressive agenda that meets with my values. But I'm also not going to refuse to acknowledge those places where Obama is being bold, and I'm going to reward him for that. It's this little thing called intellectual honesty that I can't seem to get away from.

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.

Requiem For The Constitution

Because I'm a bit too angry to focus on the passage of the FISA Amendments Act today in the Senate, I'll just link to some other important opinions.

Glenn Greenwald:

As Turley says, and as I've written many times over the last two weeks, what is most appalling here beyond the bill itself are the pure falsehoods being spewed to the public about what Congress is doing -- and those falsehoods are largely being spewed not by Republicans. Republicans are gleefully admitting, even boasting, that this bill gives them everything Bush and Cheney wanted and more, and includes only minor changes from the Rockefeller/Cheney Senate bill passed last February (which Obama, seeking the Democratic Party nomination, made a point of opposing).

Rather, the insultingly false claims about this bill -- it brings the FISA court back into eavesdropping! it actually improves civil liberties! Obama will now go after the telecoms criminally! Government spying and lawbreaking isn't really that important anyway! -- are being disseminated by the Democratic Congressional leadership and, most of all, by those desperate to glorify Barack Obama and justify anything and everything he does. Many of these are the same people who spent the last five years screaming that Bush was shredding the Constitution, that spying on Americans was profoundly dangerous, that the political establishment did nothing about Bush's lawbreaking.

It's been quite disturbing to watch them turn on a dime -- completely reverse everything they claimed to believe -- the minute Obama issued his statement saying that he would support this bill. They actually have the audacity to say that this bill -- a bill which Bush, Cheney and the entire GOP eagerly support, while virtually every civil libertarian vehemently opposes -- will increase the civil liberties that Americans enjoy, as though Dick Cheney, Mike McConnell and "Kit" Bond decided that it was urgently important to pass a new bill to restrict presidential spying and enhance our civil liberties. How completely do you have to relinquish your critical faculties at Barack Obama's altar in order to get yourself to think that way?

Lawrence Lessig:

Self-Swiftboating is to Swiftboat yourself: For a campaign to do something that has the effect of undermining its own candidate's strongest characteristic, with actions that are (at best) misleading. The Obama campaign has now self-Swiftboated candidate Obama [...]

The best evidence that they don't get this is Telco Immunity. Obama said he would filibuster a FISA bill with Telco Immunity in it. He has now signaled he won't. When you talk to people close to the campaign about this, they say stuff like: "Come on, who really cares about that issue? Does anyone think the left is going to vote for McCain rather than Obama? This was a hard question. We tried to get it right. And anyway, the FISA compromise in the bill was a good one."

But the point is that the point is not the substance of the issue. I'd argue until the cows come home that in a world where soldiers go to prison for breaking the law, the government shouldn't be giving immunity to (generous campaign contributing) companies who break the law. But a mistake about substance is not why this flip is a mistake. I agree that a tiny proportion of the world thinks defeating Telco Immunity is important. The vast majority don't even understand the issue. But what this perspective misses is just how easy it will be to use this (clear) flip in policy positions to support the argument "Obama is no different." Here, and in other places, the campaign hands the other side kryptonite.

Jon Eisenberg, a lawyer in the Al-Haramain case:

On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear.

...not unclear anymore. But that's an important piece, you should read it.

I'm going to hit my head against the wall, slowly and insistently. Here are the NAYS on the final bill, all 28 of them:

Akaka, Biden, Bingaman, Boxer, Brown, Byrd, Cantwell, Cardin, Clinton, Dodd, Dorgan, Durbin, Feingold, Harkin, Kerry, Klobuchar, Lautenburg, Leahy, Levin, Menendez, Murray, Reed, Reid, Sanders, Schumer, Stabenow, Tester, Wyden.

Well, That Fourth Amendment Was Sure Fun While It Lasted

All three amendments which would have modified the telecom immunity provision of the FISA bill were shot down today, with none of them receiving more than 42 votes. That last one was the Bingaman amendment which would have stayed immunity - not eliminated it, just delayed it - until the release of an IG report which would have at least begun to explain just what happened here. So sometime after lunch, the Senate will vote to immunize the Administration and their telecom partners from civil suit without even knowing what they're immunizing. Not to mention the expanded spying powers in Title I of the bill.

This was a failure and there's no getting around that. Senators Dodd and Feingold put up a great fight but they were simply outnumbered. The movement that built up around this did yeoman work but it simply wasn't enough to overcome the establishment impulse to bury the past, forget about accountability, and advance the surveillance state. Senator Reid is talking about bringing this back up before the sunset provision in 2012, but I wouldn't describe that as likely. We can push him, of course. But the damage will have been done. The Title II provision of immunity sets an extremely dangerous precedent that undermines the rule of law and expands executive power. From now on, the stated law of the land will be that corporations, small businessmen or even individuals must comply with illegal orders from the state if they are given a piece of paper telling them they must. That won't be how the statute is written, but it's undoubtedly the implication.

Just so it's kept somewhere, here are the 32 Senators who voted to strip immunity entirely:

Akaka, Baucus, Biden, Bingaman, Boxer, Brown, Byrd, Cantwell, Cardin, Casey, Clinton, Dodd, Dorgan, Durbin, Feingold, Harkin, Kerry, Klobuchar, Lautenburg, Leahy, Levin, Menendez, Murray, Obama, Reed, Reid, Sanders, Schumer, Stabenow, Tester, Whitehouse, Wyden

You'll notice Obama on that list - he kept his word to work to prevent immunity, but I suspect he will also keep his word to vote for the final bill.

Just so we're clear here, here's something from yesterday's final debate that really exemplifies the damaging precedent being set here. This isn't verbatim, but filtered through emptywheel's snark:

Kit Bond: IGs will not determine whether the illegal program was legal or not.

House and Senate Intelligence Committees are all the oversight you need, little boys and girls. Never mind the Courts!

Specter: A member's constitutional duty cannot be delegated to another member. The full body has to act. The question for the Senator with the red tie is, how can 70 members of the US Senate expect to grant retroactive immunity in light of the clear cut rule that we cannot delegate our Constitutional responsibilities.

[Is this the day Haggis returns to US law?!?!?!?!]

Bond: well, SSCI predates me.

Specter: Uh, yeah, I know. I used to chair it, remember?

Specter: SSCI hasn't even all been briefed on the stuff they're supposed to be briefed on. Judge Walker with his 56 page opinion that bears on the telephone case. Have the telecoms had problems with their reputation? Perhaps. They can recover from that.

Specter: Does the Senator from Missora know of any case involving constitutional rights where Congress has stepped in and taken it away from the Courts where there's no other way of getting a judgment on the constitutionality of it?

Mr. Red Tie: What Specter fails to understand, it's not a question of carriers being held liable, what they would do is disclose the most secretive methods used by our intelligence community. It would also expose those companies to tremendous scorn and obliquy and possibly injury to them or their personnel.

Specter: Nope, Bond couldn't come up with one example.

Specter, I'll remind you, wasn't on that above list. He knows that the Congress can't take away the judgment of Constitutionality and yet he voted against stripping the element of the bill which would do so. He's really awesome.

This is what sadly passes for Senatorial responsibility these days.

We're not going to forget this.

UPDATE: An example of the long-term accountability project can be found here. John Barrow is a Bush Dog Democrat who's voted with the President on virtually every substantive issue. Blue America is educating his constituents. This primary election is July 15 and we need to do what we can to win it.

UPDATE II: The deed is done, the FISA Amendments Act has passed and will be signed into law without delay. Glenn Greenwald has all the particulars.

Toast Your New Surveillance State Tomorrow

There is one day left before the Constitution is tossed out the window and President Nixon's refrain that "If the President does it, then it isn't illegal," is enshrined into law. Tomorrow the Senate will vote to cover up George Bush's illegal spying program, with a compromise that isn't a compromise, and grant immunity to both the telecom partners who aided in the crime and the Administration themselves, who will now be able to end their term with the peace of mind that the extent of their illegal spying on Americans will never see the light of day. This is a bipartisan effort, aided by a cynical Democratic leadership that is either implicated in the spying or willing to give their bretheren in the Establishment a break. Either way, the upshot is that core Constitutional liberties will be taken away tomorrow, and the rule of law will be reduced to nothing but a slogan.

The progressive movement and the new coalition that has built up around this and other issues of civil liberties won't win every one of these battles. We put up one hell of a fight, identified key allies and also those who side with the Establishment surveillance state, and we will move on from this stronger and more committed to making things right and holding those who betrayed their core responsibilities accountable. Glenn Greenwald has the seminal post up about where we stand. Accountability NOW Pac, which I have signed onto as a sponsoring blogger, put together a Washington Post ad just to let those scoundrels know what they'll be voting for tomorrow. In addition, there will be a money-bomb to raise funds for future efforts on August 8. You can pledge your donation at the Accountability NOW link.



I really don't have a whole lot to add to Greenwald's piece - he covers admirably the facts of how the Congress will, by this time tomorrow, have voted to immunize lawbreakers without even knowing the extent of the lawbreaking, and will have used fear, intimidation and lies to do it. He explains how this is a symptom of an unaccountable ruling class, and what we can do to fight back. I'll just add a few links of supporting material.

Here's Daniel Ellsberg, who knows a thing or two about illegal surveillance:


What Every American Needs to Know (and Do) About FISA Before Tuesday, July 8th from Tim Ferriss on Vimeo.

1. Why does the vote this Tuesday, July 8th matter to normal people who have nothing to hide?

Ordinary citizens who want to live in a democracy — including those with nothing to hide — should be concerned about the ability of the government to use private, sensitive personal information to blackmail, manipulate, and intimidate their representatives, journalists and their sources, potential whistleblowers, and activists or dissenters of any sort.

2. Couldn’t it be argued that this type of surveillance ability has prevented another 9/11 from happening? Isn’t it possible that this type of legislation has saved American lives?

The administration has claimed that is has, but without presenting a single piece of evidence that this is so, even in closed hearings to Senators with clearances on the Intelligence Committee. The FISA court has granted warrants in virtually every request that’s been made of it that has any color of helping national security. The administration’s decision to bypass that court, illegally, leads to a strong suspicion that they are abusing domestic spying, as some of their predecessors did, in ways that even the secret FISA court would never approve.

Here's Tim Lee explaining how telecom immunity is practically the least offensive aspect of this bill.

When it comes to judicial oversight of domestic-to-foreign calls, the legislation the House passed last month is an unambiguous victory for the White House and a defeat for civil libertarians. The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge. Moreover, the judge's review of the government's "certification" is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification "contains all the required elements," that the targeting procedures are "reasonably designed" to target foreigners, and that minimization procedures have been established.

Crucially, there appears to be no limit to the breadth of "authorizations" the government might issue. So, for example, a single "authorization" might cover the interception of all international traffic passing through AT&T's San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly "targeted" at foreigners.

(it's very hard to excerpt that piece because all of it is vital.)

And finally, here's Bradley Olson, a reporter for the Baltimore Sun, who notes that FISA is just one brick in the wall of a lawless surveillance state.

With Congress on the verge of outlining new parameters for National Security Agency eavesdropping between suspicious foreigners and Americans, lawmakers are leaving largely untouched a host of government programs that critics say involves far more domestic surveillance than the wiretaps they sought to remedy.

These programs - most of them highly classified - are run by an alphabet soup of federal intelligence and law enforcement agencies. They sift, store and analyze the communications, spending habits and travel patterns of U.S. citizens, searching for suspicious activity.

The surveillance includes data-mining programs that allow the NSA and the FBI to sift through large databanks of e-mails, phone calls and other communications, not for selective information, but in search of suspicious patterns.

Other information, like routine bank transactions, is kept in databases similarly monitored by the Central Intelligence Agency.

"There's virtually no branch of the U.S. government that isn't in some way involved in monitoring or surveillance," said Matthew Aid, an intelligence historian and fellow at the National Security Archives at The George Washington University. "We're operating in a brave new world."

We are well and truly screwed on tomorrow's vote. And as Olson notes, it's just part of a massive surveillance apparatus that has crept into our lives. But FISA is a rallying point. It wakes people up about the serious problem of unethical and criminal activity emanating from Washington. And it offers an opportunity to use this anger and frustration and energy toward political power. It's the only thing these guys will respond to, after all.

This fight is not over. Expect a lot more to come.

FISA Update

From what I'm hearing about changes in the legislative schedule, Jesse Helms finally accomplished something significant in his Senate career - his funeral tomorrow will delay the votes on FISA by one day. The votes on amendments and the final bill are now more likely to occur on Wednesday. This means one additional day for grassroots efforts to get the entire Senate on the record over whether or not they will stand with the Constitution. Blue America's tools are still active. I've been pretty pessimistic on the outcome all along, but that's no reason to stop fighting.

Meanwhile, as Marcy Wheeler reports, the Administration wants a clean bill, and would veto any effort to allow the Congress and the American people to know exactly what they would be immunizing:

As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001.

[snip]

H.R. 6304 contains such protection, but the (Bingaman) amendment would reportedly foreclose an electronic communication service provider from receiving retroactive [immunity] until 90 days after the Inspectors General of various departments, as required by section 301 of H.R. 6304, complete a comprehensive review of, and submit a final report on, communications intelligence activities authorized by the President between September 11, 2001, and January 17, 2007. The final report is not due for a year after the enactment of the bill. Any amendment that would delay implementation of [immunity] in this manner is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President's other advisors, will recommend that the President veto any bill that includes such an amendment.

Bingaman's amendment simply states that the IG report, which even Sen. Obama has claimed would allow for accountability, be given the opportunity to actually hold anyone accountable by forestalling immunity until its completion. It's as common sense a proposal as there has been in this year-long debate. Yet there will not be a hearing on it, the debate will consist of a matter of minutes, key witnesses like Mark Klein, the AT&T technician who disclosed the secret room in San Francisco where the NSA was vacuuming up all communications on its network, will never be called to testify, and the entire sordid mess will be pushed across the finish line in a day or two.

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.

Exclusivity Argument Goes Up In Flames

The main talking point that, in particular, Dianne Feinstein and Nancy Pelosi have used to claim the necessity of the FISA capitulation is that under this law, the FISA Court will be the "exclusive means" for electronic surveillance. The bamboozlement here is that FISA, a federal statute, never was the exclusive means before. Now we have confirmation of this, from a federal judge in California no less.

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001 [...]

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

Idiots, idiots, idiots. In the course of giving away massive new surveillance powers and immunity for lawbreakers, the so-called "chip" that they received in return was already in the law to begin with. Remember that exclusivity was DiFi's amendment, and Pelosi said it was "the most important" aspect of any new law.

(By the way, this lawsuit is against the federal government, not the telecoms, so it would continue regardless of the outcome of Tuesday's vote.)

UPDATE: More on the Obama backlash on his website in USA Today. It's now the largest group on the site, with 14,000 supporters.

Sigh... Team Obama's Bamboozlement On FISA.

(bumped)

Good for Mike Stark and the gang (and since I'm part of it, myself) for getting the New York Times to notice the My.BarackObama.com group, now the largest on his site, which is protesting his recent position on FISA and telecom immunity. It's a solid piece, and a testament to the spirit and creativity of the netroots to get something like this accomplished. I just want to mention one thing from the end of the article.

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.”

FISA is not expiring. The Protect America Act expired in February, reverting intelligence gathering through foreign surveillance back to FISA, where it had been for 30 years. FISA's burden is not onerous, it's frequently a rubber stamp, and its existence as a secret court may violate the Fourth Amendment in its own right, but it's not "expiring." What's expiring are a few open wiretaps which surveil foreign targets but go through a US switcher. The proper compromise would have been to just fix those and treat them as foreign communications. Massively expanding wiretap capability and telecom immunity was completely unnecessary. Greg Craig is trying to bamboozle you.

UPDATE: Glennzilla is all over this, he even got Craig on the phone and forced him into a bunch of lies and misstatements. Meanwhile, Blue America has created this very cool whip count call tool.

Blue America is launching a call tool today to help you get in touch with Senators regarding the FISA bill. We’re trying to make it as easy as possible for everyone to talk with their Senators about the importance of standing up for the constitution, the rule of law — and standing against telecom immunity.

We have been working hard to put together some tools to make your voice heard — and there is more to come today.

This first tool allows you to directly contact Senators to tell them to stand up for the rule of law and vote in favor of the Dodd-Feingold-Leahy amendment. (That’s S.A.5064 to H.R. 6304 which will come up for a vote on July 8th, 2008.) Not only will this tool help you phone your Senators — including connecting your call — but it also gives us the ability to track positions on FISA given your input on what you ascertain during your conversations.

It's worth trying.