From Glen Greenwald at www.salon.com:
Now that Congress has given immunity to telecommunications companies that helped the government spy on Americans in suspected terrorism cases, a Maine legislator is asking Verizon anew if it turned over any customer records to the federal government. As it has in the past when faced with such queries, Verizon Communications Inc. says it is not commenting on matters involving national security. . . . The law in effect nullified a lawsuit by Maine which sought to know what kind of phone customer information was turned over to the National Security Agency as part of its anti-terror efforts. That and several other similar cases brought by consumers, privacy advocates and others had been consolidated before Congress granted immunity. . . . "Possibly tens of thousands of Mainers have had their private phone records leaked to the federal government without their knowledge or say-so, and now none of them may ever know," he said.
As it has in the past when faced with such queries, Verizon Communications Inc. says it is not commenting on matters involving national security. . . .
The law in effect nullified a lawsuit by Maine which sought to know what kind of phone customer information was turned over to the National Security Agency as part of its anti-terror efforts. That and several other similar cases brought by consumers, privacy advocates and others had been consolidated before Congress granted immunity. . . .
"Possibly tens of thousands of Mainers have had their private phone records leaked to the federal government without their knowledge or say-so, and now none of them may ever know," he said.
Telecoms have done the same to the U.S. Congress as well, by outright refusing to respond to inquiries from Congressional committees concerning their conduct in enabling spying on their customers.
Obama's people and all the senators who supported FISA are simply lying to us. Accept it. From Glen Greenwald, at Salon.com:
(updated below)
This afternoon, I spoke with Jameel Jaffer, the Director of the ACLU's National Security Project, regarding the two legal proceedings commenced today by the ACLU challenging the constitutionality of the new FISA law. The roughly 20-minute discussion can be heard here.
The ACLU filed one action in the FISA court, requesting that -- contrary to how the FISA court normally works -- all proceedings regarding the constitutionality of the FISA law be open to the public and transparent, and that the proceedings be adversarial (i.e., that the ACLU -- rather than just the Government -- can participate). The other action was filed in a federal court in the Southern District of New York, alleging that the provisions which vest vast new warrantless eavesdropping powers in the President are, for multiple reasons, violative of the Fourth Amendment of the U.S. Constitution. The ACLU's lawsuits do not challenge the constitutionality of the telecom immunity provisions of the new FISA law because those sections will be challenged by EFF and local/affiliate ACLU groups in separate actions. The legal documents filed today by the ACLU are here.
In the podcast, Jaffer details exactly what warrantless surveillance powers the new FISA bill vests in the President, along with the reasons they are so pernicious. He underscores the extraordinary fact that the surveillance program implemented by Congress yesterday does not merely authorize most of the President's so-called "Terrorist Surveillance Program" that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the "target" of the surveillance have any connection whatsoever to Terrorism, nor is there any requirement that the Government believe the "target" is an agent of a foreign power or terrorist organization, or even guilty of any wrongdoing at all. As Georgetown Law Professor Marty Lederman wrote today (emphasis his):
The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.
On a related note: there's no question that yesterday was a horrendous day for people devoted to the preservations of basic Constitutional protections and the rule of law, but -- as I said in the prior post from today -- it is hardly the end of anything, but the beginning. Sen. Chris Dodd -- whose stalwart, relentless efforts to stop this law were nothing short of heroic, as those efforts often provoked substantial hostility among many of his colleagues -- sent around the following email today to his mailing list highlighting the positive aspects of the battle:
Yesterday was a sad day for the United States Senate. It is my hope that the courts will undo the damage done to the Constitution. But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months. We came together – all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease. I'm sorry we weren't successful. I just hope I'm lucky enough to have you by my side in the next fight, whatever that may be. Thanks for all you've done. Chris Dodd
It is my hope that the courts will undo the damage done to the Constitution.
But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.
We came together – all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.
I'm sorry we weren't successful.
I just hope I'm lucky enough to have you by my side in the next fight, whatever that may be.
Thanks for all you've done.
Chris Dodd
It really was a true spontaneous outburst of citizen activism that prevented that from happening. As a result, new coalitions formed. There will now be lawsuits challenging the constitutionality of this travesty of a law. The activism that arose over this bill did indeed -- as Sen. Dodd said -- force these issues into the public discourse, and will serve as a foundation, a launching pad, for far more potent and effective efforts against future assaults of this type from the political class on the rule of law and core Constitutional protections. It's important that the pervasive, justifiable anger over what happened yesterday be channeled not into defeatism, but into constructive resolve to create still more effective methods for battling against these erosions.UPDATE: The most overlooked fact in the entire FISA debate -- the aspect of it that renders incoherent the case in favor of the new FISA law or even those who dismiss its significance -- is that virtually nobody knows what the spying program they're immunizing entailed and towards what ends it was used -- i.e., whether it was abused for improper purposes. Even those who acknowledge that the warrantless spying program was illegal like to assert that it was implemented for benign and proper counter-terrorism purposes (see Kevin Drum making that claim here) -- but they have absolutely no idea whether that is true. None. Zero. To assert that is simply to make assertions with no basis whatsoever.
There has been no Congressional investigation into the NSA program -- meaning an effort to compel the Bush administration to turn over to Congress information about who was subjected to the illegal, warrantless spying and towards what purposes. Back in March, 2006, even the Senate Intelligence Committee -- the core function of which is "to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States" -- voted along party lines against conducting hearings into the NSA spying program.
The whole point of the Bush NSA warrantless spying program was to enable the administration to spy on people in secret -- i.e., without the judicial oversight the law required. Thus, the only people outside the Executive Branch who have any real knowledge at all of how these illegal spying powers were exercised are a small number of Senators on the Intelligence Committee who have been briefed by Bush officials, but they are barred by law from saying what they know. Nonetheless, here is what one of those members -- Sen. Russ Feingold -- said during his remarks on the Senate floor regarding the new FISA bill, as highlighted by Howie Klein. In a minimally rational world, these revelations from Sen. Feingold would be major, major news:
I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure.
Think about what it says about our country -- about the notion of an open, transparent government -- that all of this remains secret and, thanks to this new FISA law, will remain so. We have no idea what our Government has been doing in terms of how it spies on and keeps records of our communications, even with regard to programs that their own top officials said were patently illegal and which allegedly stopped years ago. We just happily remain in the dark about all of it, telling ourselves that there's "no evidence" of abuse and therefore no reason to be particularly concerned about it.
Worse, both parties act in unison not only to conceal all of this from ever becoming disclosed to American citizens, but also to protect the lawbreakers without even knowing what they did. Meanwhile, those for whom allegiance to a new Leader is their overriding mission suddenly pop up (now that it's not just Bush endorsing all of this but their new Leader as well) in order glibly to dismiss all of these concerns -- about unconstitutional and illegal spying, both past and future, and the destruction of the rule of law -- as Leftist "hysteria". What's most amazing -- and most disturbing -- are the levels of secrecy, lawlessness, and passivity which so many Americans have been trained to accept.
-- Glenn Greenwald
What we learned in December, 2005 that George Bush and the telecoms were doing -- listening in on the private conversations of American citizens without warrants -- is a felony under clear U.S. law, punishable by up to 5 years in prison and/or a $10,000 fine for each offense. Anyone can go read the section of FISA -- right here -- that says that as clearly as can be:
A person is guilty of an offense if he intentionally -- (1) engages in electronic surveillance under color of law except as authorized by statute; . . . An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
But today, the Democratic-led Congress -- with the support of both John McCain and Barack Obama, neither of whom will even bother to show up and vote -- will cover-up those crimes. Law Professor and Fourth Amendment expert Jonathan Turley was on MSNBC's Countdown with Rachel Maddow last night and gave as succinct an explanation for what Democrats -- not the Bush administration, but Democrats -- will do today. Anyone with any lingering doubts about what is taking place today in our country should watch this: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?
The issues implicated by this bill -- government spying, lawbreaking, manipulation of national security claims for secrecy and presidential power, the extreme privileges corporations inside Washington receive -- have been at the very heart of progressive complaints against the Bush era for the last seven years. The type of capitulation and complicity which Jay Rockefeller and Steny Hoyer embraced is exactly what progressives have spent the last seven years scathingly attacking.
All of that magically changed for many people -- by no means all -- the day that Obama announced that he supported this "compromise," when these issues were suddenly relegated to nothing more than inconsequential, symbolic distractions, and complicity with Bush lawbreaking magically morphed into shrewd pragmatism. It's the same rationale that the dreaded Blue Dogs have been using since 2001 to justify their complicity which is now pouring out of the mouths of Obama defenders (we need to win elections first and foremost, and can only do that if we don't challenge Republicans on National Security and Terrorism).
Stanford Professor Larry Lessig has been a hard-core Obama supporter since before the primaries even began. He knows the candidate himself and has all sorts of contacts at high levels of the campaign. Yesterday, Lessig wrote a scathing criticism of what the Obama campaign has been doing over the past several weeks: "All signs point to an Obama victory this fall. If the signs are wrong, it will be because of events last month." This is what Lessig said about the Obama campaign's attitude towards the FISA bill:
Yet policy wonks inside the campaign sputter policy that Obama listens to and follows, again, apparently oblivious to how following that advice, when inconsistent with the positions taken in the past, just reinforces the other side's campaign claim that Obama is just another calculating, unprincipled politician. 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."
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."
The Obama campaign seems just blind to the fact that these flips eat away at the most important asset Obama has. It seems oblivious to the consequence of another election in which (many) Democrats aren't deeply motivated to vote (consequence: the GOP wins).
Ultimately, it's the sheer glibness of the support for this corrupt and Bush-enabling bill among Obama and his supporters that is most striking. Revealingly, Lanny Davis -- a pure symbol of everything that is rotted and broken in our political culture -- wrote an Op-Ed yesterday lavishly praising Obama for his support of the FISA bill on the ground that it "provided the senator an important chance to demonstrate his "Sister Souljah moment." Beltway operatives like Davis can only understand the world through the prism of this finite set of clichés -- Stand up the Left. Sister Souljah. Move to the Center. That's the same oh-so-sophisticiated political analysis one finds everywhere to justify what Obama is doing. As Dan Larison put it yesterday:
In Obamaworld, apparently wrecking the Fourth Amendment is roughly equivalent to ridiculing some obscure rapper. The only thing more depressing than the conceit that supporting unconstitutional measures is a way to "signal" to swing voters that you are not a radical loon bent on "ideological purity," which is basically to make defending the Constitution a position held only by radicals and extremists, is the dishonest representation of support for the compromise legislation as being a pro-civil liberties position.
Before the February 19 Wisconsin primary, which confirmed his front-runner status in the race for the Democratic presidential nomination, Illinois Senator Barack Obama went out of his way to associate his candidacy with the name of Wisconsin Senator Russ Feingold. . . . Obama wanted to secure the support of the substantial portion of Democrats nationally who, in polls conducted in 2006, indicated that they would back Feingold if he entered the presidential race. Internal polls by the various campaigns indicated that Feingold drew as much as 15 percent of the vote in a number of key states, coming mostly from anti-war and pro-civil liberties progressives. . . . "I am proud to stand with Senator Dodd, Senator Feingold and a grass-roots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty," declared Obama, who indicated that he would support efforts to filibuster any attack on the ability of citizens to use the courts to defend their privacy rights. Obama's stance helped him. It was cited in endorsements by prominent progressives and newspapers in Wisconsin and other later primary states. No doubt, it contributed to his landslide victory in the Badger State, where the Illinoisan won a vote from Feingold himself. Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he'll vote for a White House-backed FISA rewrite -- which is likely to be taken up by the Senate this week -- in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.
Obama wanted to secure the support of the substantial portion of Democrats nationally who, in polls conducted in 2006, indicated that they would back Feingold if he entered the presidential race. Internal polls by the various campaigns indicated that Feingold drew as much as 15 percent of the vote in a number of key states, coming mostly from anti-war and pro-civil liberties progressives. . . .
"I am proud to stand with Senator Dodd, Senator Feingold and a grass-roots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty," declared Obama, who indicated that he would support efforts to filibuster any attack on the ability of citizens to use the courts to defend their privacy rights.
Obama's stance helped him. It was cited in endorsements by prominent progressives and newspapers in Wisconsin and other later primary states. No doubt, it contributed to his landslide victory in the Badger State, where the Illinoisan won a vote from Feingold himself.
Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he'll vote for a White House-backed FISA rewrite -- which is likely to be taken up by the Senate this week -- in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.
Ultimately, what's most amazing about all of that is that -- as Senate Intelligence Committee member Russ Feingold pointed out yesterday -- even the vast majority of the Congress, let alone Obama apologists, have no idea what these spying programs even entail or how they work. As someone who isn't on the Intelligence Committee, does Obama even know?
Either way, here's what the ACLU's Caroline Fredrickson wrote to The Washington Post yesterday in response to Fred Hiatt's latest Editorial praising Obama and the FISA bill:
The fact is that the revisions of the Foreign Intelligence Surveillance Act under consideration in the Senate this week would virtually do away with the role of the FISA court in overseeing new dragnet surveillance. Its role would be reduced to little more than serving as a rubber stamp. It is a shame that the paper that uncovered the Watergate scandal, which helped lead to more congressional oversight of executive authority and the checks and balances of FISA, now believes that the president once again should have unfettered power to spy on Americans.
It is a shame that the paper that uncovered the Watergate scandal, which helped lead to more congressional oversight of executive authority and the checks and balances of FISA, now believes that the president once again should have unfettered power to spy on Americans.
The government absolutely must be able to wiretap suspected terrorists to protect our security, and every member of Congress supports that. With this bill, however, for the first time since FISA was adopted 30 years ago, the government would be authorized to collect all communications into and out of the United States without warrants. That means Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone. This bill overturns the laws and principles that have governed surveillance for the past 30 years.
Warrantless wiretapping of Americans should outrage Congress into banning the practice. But, in a display of political expediency, the Senate is about to bless it, following a similar cave-in by the House last month. Making matters worse, both likely presidential candidates -- Sens. Barack Obama and John McCain - plan to reverse their opposition and vote for the White House-backed rewrite of the Foreign Intelligence Surveillance Act. The bigger of the two reversals is Obama, who earlier this year had promised a filibuster to defeat the bill.
Making matters worse, both likely presidential candidates -- Sens. Barack Obama and John McCain - plan to reverse their opposition and vote for the White House-backed rewrite of the Foreign Intelligence Surveillance Act. The bigger of the two reversals is Obama, who earlier this year had promised a filibuster to defeat the bill.
As I've said many times before, there are clear differences between an Obama and McCain presidency. Denying that is just as irrational as those for whom the only political rule is Thou Shalt Not Speak Ill of Obama.
But it's equally clear that politicians like Obama are unable within the prevailing political establishment to do much to stop the continued growth of the lawless surveillance state and our two-tiered system of justice, even if they wanted to stop it, even if they were willing to expend political capital to take a stand against it. And Obama -- with his support for this wretched assault on the Constitution and the rule of law -- is demonstrating that, contrary to his many prior statements, these issues are anything but a priority for him (Larry Lessig: Obama aides say "the FISA compromise in the bill was a good one"). Differences between Republican and Democrats exist and are important in many cases, but those differences are often dwarfed by the differences between those entrenched in and dependent upon the Washington Establishment and those -- the vast, vast majority of American citizens -- who are not.
If you are angry about FISA, give to the Money Bomb:
Online activists from the right and the left announced an unprecedented campaign Tuesday to hold Democratic lawmakers accountable for caving in to the Bush administration on domestic spying.
A group of high-profile progressive bloggers and libertarian Republicans are rolling out a new political action committee called Accountability Now to channel widespread anger over pending legislation that would legalize much of the president's warrantless electronic surveillance of Americans, and grant retroactive legal immunity to telephone companies that cooperated with the spying when it was still illegal.
Progressive author and lawyer Glenn Greenwald, who writes for Salon.com, and blogger Jane Hamsher of Firedoglake, are spearheading the effort. They've hired the political media consultants behind a historic Ron Paul online fundraising drive to organize a similar "moneybomb," set to go off Aug. 8.
"That is the day Richard Nixon resigned, and the idea is that 35 years ago when you did this kind of stuff, you were forced out of office, and now congress drops everything to make your crimes legal," says Hamsher in an interview.
The campaign marks a milestone in the evolution of online grassroots organizing. The PAC is cherry-picking the tactics and tools that proved most successful in the presidential primary campaigns, and is using them to corral online support for the single issue of domestic spying. The PAC's money pay for advertisements in the districts of the House Democrats who voted for the spy bill -- potentially causing problems for those capitulating on the Bush wiretapping program.
"The fact is, we're all entering completely new territory here," writes Micah Sifry on the TechPresident blog in a post on other, similar efforts to rally support to influence Barack Obama's vote on the pending legislation this Wednesday in the Senate. "There have always been efforts to influence political candidates to take or change positions during a campaign (or afterward), but we've never before had a national campaign create an open platform for mobilizing supporters and then seen a salient chunk of those supporters openly use that platform to challenge the candidate on a policy position."
Key to the new effort are consultants Trevor Lyman and Rick Williams, whose successful online money-raising effort for Ron Paul, the libertarian-leaning Texas congressman, broke records last year. The pair masterminded a "moneybomb" drive called "This November 5th" that brought in an unprecedented $4.2 million in contributions in a single day. A repeat effort in December raised another $6 million for Paul.
Now the pair have built a web page for Accountability Now where opponents of the spy bill can commit in advance to donating money to the PAC. Similar to the Ron Paul drives, netizens can grab Accountability Now badges to place on their blogs, which link back to the fundraising pledge page.
The moneybomb is only one of several techniques, both online and off, that Hamsher's Firedoglake is experimenting with to make offending members of congress feel the anger of their constituents.
Firedoglake has already hired Advomatic Designs in New York City and Advomatic Laboratories in Anchorage, Alaska, to create a VOIP widget that lets voters call their senators ask them what their stance is on the spy legislation, and to urge them to vote for an amendment that would remove the telecom immunity provision.
So far, 1,600 calls have been made using the tool, which launched Wednesday, says Matt Browner Hamlin, Advomatic Laboratories' founder.
Firedoglake also launched a robocall campaign in late June against House Majority Leader and Maryland Representative Steny Hoyer, who organized the vote for the legislation. And it's run television ads against Reps. John Barrow, D-Ga., and Chris Carney, D-Pa -- the so-called Blue Dog Democrats who pushed for the legislation.
Hamsher says the effort is aimed at Democrats, because that's the party in control of Congress. "They will have the power," she says. "From our perspective, Chris Carney, or a Republican, it doesn't make any difference -- they're both voting bad on a variety of issues. But Republicans have no power, and Chris Carney in the center will.
Using money it has already raised, the group ran a full-page advertisement in The Washington Post on Tuesday with bullet points explaining what's wrong with the pending legislation.
The Senate is expected to follow the House in approving the new spy legislation Wednesday.
With regard to the Senate FISA vote, a new event occurred yesterday that underscores the pure lawlessness of what our Congress will do this week. One of the pending Senate amendments -- the only one with any remote chance of passing -- is an amendment (.pdf) sponsored by Sen. Jeff Bingaman (co-sponsored by GOP Sen. Arlen Specter and Democratic Sen. Bob Casey). The Bingaman amendment would merely postpone the granting of telecom immunity until 90 days after Congress receives the Inspector General's audits of the President's NSA spying program which the new FISA bill mandates, and would freeze the telecom lawsuits in place until then.
The rationale behind the amendment is clear and simple: namely, members of Congress, the vast majority of whom know virtually nothing about what the telecoms did, shouldn't grant immunity unless they know what this illegal spying program entailed. If the IG Report reveals that the program (even though illegal) was devoted to a benign and proper purpose, then Congress (if it is so inclined) can grant immunity then. But if the IG Report reveals the spying program to be something other than what the President and the telecoms claim it to be -- if it entails far more invasive surveillance of Americans or was abused for improper purposes -- then immunity would obviously be wildly inappropriate. Even the ACLU and EFF, the lead organizations behind the telecom lawsuits, favor the Bingaman Amendment.
That amendment is a true compromise. It rests on what should be the completely uncontroversial proposition that Congress shouldn't immunize the lawbreakers until they at least know what was done. In the meantime, the lawsuits are frozen so that telecoms are spared the tragic burdens of having to account for their behavior in a court of law like everyone else does.
Revealing what telecom immunity is really about -- ensuring a permanent cover-up of Bush surveillance crimes -- Bush DNI Mike McConnell (who previously worked on behalf of the telecom industry to increase their government surveillance contracts) and Attorney General Michael Mukasey sent a joint letter to the Senate yesterday vowing that the President would veto the entire FISA bill if the Bingaman amendment were included, and issued this standard fear-mongering decree:So not only does our Safety require that telecoms be immunized from lawsuits over their lawbreaking, but we can't even wait until we know what was done before immunizing them. Even waiting to immunize telecoms will gravely imperil "national security." Frightening. Immunize telecoms -- now, not later -- or prepare to be slaughtered by the Terrorists. And that's all Congress needs to know. McConnell and Mukasey end the letter by advising that they "strongly support the prompt passage" of the House FISA bill. I bet they do.
Manipulative appeals to "national security" are, of course, exactly what has enabled the Bush administration to bully Congress into giving them everything they want for years -- "give us the powers we want and immunize our lawbreaking or be killed by Terrorists." That's how our country has been "governed" in the Bush era -- with heavy-handed, authoritarian decrees that we must comply with our Leader's secretly-formed judgments if we want to survive -- and it's likely how it will continue to be governed. And that is the mentality -- in an even more absurd formulation than is typical -- that is likely to lead the Congress yet again to comply this week with the President's orders in full.
Say I promise you I will never break into your house and poop on your rug. Then I break into your house one night and poop on your rug. I immediately get congress to immunize me for doing that. Then I repeat my promise never to do it again. Then I do it again and get immunity again. What good is a promise that can be freely broken? Isn't it worse than no promise at all because it lulls you into a false sense of security? At least if I know you plan to poop on my rug, I can install stain proof carpeting or something.
More excellent analysis from Glenn Greenwald at Salon.com--give to the Money Bomb:
Almost 35 years ago, a U.S. President was forced to resign due to lawbreaking and surveillance abuses. This week, the U.S. Congress will act to cover-up and protect far worse lawbreaking
Glenn Greenwald
Jul. 08, 2008 | The votes in the Senate on various amendments to the FISA "compromise" bill and to the underlying bill itself were originally scheduled for today, but have been postponed until tomorrow (Wednesday, July 9) to enable Senators to attend the funeral of Jesse Helms. Rejection of the amendments -- including the Dodd-Feingold-Leahy amendment to strip telecom immunity from the bill -- is all but certain, and final passage of the bill (with the support of both presidential candidates) is guaranteed.
Once passed by the Senate, the FISA bill will then immediately be sent by the Democratic Congress to an eagerly awaiting and immensely pleased President Bush, who will sign it into law, thereby putting a permanent and happy end to the scandal that began when -- in December, 2005 -- he was caught spying on the communications of American citizens in violation of the law. The only real remaining questions are (a) whether Bush will host Steny Hoyer and Jay Rockefeller at a festive, bipartisan White House signing ceremony to celebrate the evisceration of the Fourth Amendment and the rule of law, and (b) whether Bush, when he signs the bill into law, will append a signing statement decreeing that even its minimal restraints on presidential spying are invalid.
As part of the campaign to target those responsible for the ongoing destruction of core civil liberties and the endless expansion of America's lawless surveillance state, we have a full-page ad in the "A" Section of this morning's Washington Post, the purpose of which is to serve as a final argument directed to the Beltway class, a clear statement of exactly what it is that they are really about to do this week (click on both parts below to read the ad with large print or click here to read the full ad in somewhat smaller print):If nothing else, as the Democratic-led Senate follows in the footsteps of the Democratic-led House this week by passing a bill demanded by George Bush and Dick Cheney to cover up and retroactively legalize their surveillance crimes and protect the lawbreakers, there will be a clear record -- delivered to their front doors -- of what they're really doing, along with an accounting of the deceitful propaganda they are disseminating to mask and justify it.
* * * * *
As I have described previously, the campaign we have been conducting is intended to be only the first step -- not the last -- in taking a stand against the endless erosion of core constitutional protections and the rapidly expanding Lawless Surveillance State. We have created a new organization, Accountability Now, to conduct the ongoing battle to target and remove from power those who enable these abuses; to force these issues into our political discourse; and to prevent the Washington Establishment from continuing to trample on basic constitutional protections with impunity.
The first campaign of this new organization is the formation of Strange Bedfellows, the ideologically diverse coalition we have formed with liberals, libertarians and others who are devoted to the preservation of our core constitutional liberties and the rule of law. Before it has even begun, The Wall St. Journal and numerous online venues have written about this unique coalition.
To initiate and fund our new campaign, we have teamed with the individual who was behind the innovative and extraordinarily successful Ron Paul "money bombs" -- Trevor Lyman, along with Rick Williams and Break the Matrix -- to plan an "Accountability Money Bomb" for August 8. That is the day in 1974 when Richard Nixon was forced to resign from office for his lawbreaking and surveillance abuses. That day illustrates how far we have fallen in this country in less than 35 years, as we now not only permit rampant presidential lawbreaking and a limitless surveillance state, but have a bipartisan political class that endorses it and even retroactively protects the lawbreakers.
To participate in the money bomb and support our new organization, you can pledge to donate here -- or by clicking on the logo above. On August 8, those who pledged will make their actual donations in whatever amount they choose, and the results will then be announced.
This type of ideologically diverse coalition devoted to the preservation of basic constitutional protections and the rule of law -- modeled after the still-growing and increasingly potent left-right coalition that has spontaneously arisen in Britain to fight against their Establishment's corrupt seizure of limitless surveillance and detention powers -- can be a new and powerful force. Those who are responsible for these erosions need to be undermined and the nature of the debate over these issues needs to be changed. A successful start and the support of as many people as possible is vital to launching this effort the right way -- in a way that will enable its presence to be heard and felt in the Beltway precincts that need to hear and feel it.
Yesterday, Andrew Sullivan noted the post I wrote this weekend regarding why telecom immunity is so destructive and corrupt, but Sullivan then wrote: "In the period after 9/11 in question, I do not find these cardinal sins. Venial maybe." Had this surveillance lawbreaking been confined to the weeks or even months after the 9/11 attack, that might be true. Even EFF's lead counsel, Cindy Cohn, said that had the illegal spying occurred only during that time period, it's unlikely that even they would have objected and sued.
But the reality is that the Government and the telecoms broke the law not for weeks or months, but for years -- well into 2007. They continued to do so even after the NYT exposed what they were doing. They could have brought their spying activities into a legal framework at any time, but chose instead to spy on Americans in exactly the way our laws criminalize. Manifestly, then, national security had nothing to do with why they did it. The Bush administration chose to do so because they wanted to eavesdrop without oversight and to establish that neither Congress nor the courts can limit what the President does, and telecoms did not want to jeopardize the massive government surveillance contracts they have by refusing.
This was rampant, deliberate lawbreaking that lasted for many years. We either live under the rule of law or we don't. In a New York Times Op-Ed today jointly written by James Baker and Warren Christopher on the need to amend the War Powers Act to clarify Congress' role when the President commits troops to battle, they point out: "the 1973 statute has been regularly ignored -- a situation that undermines the rule of law, the centerpiece of American democracy." The Bush administration and the telecoms trampled upon that "centerpiece of American democracy," and the Democratic-led Congress is about to do the same.
A quite good Editorial in the NYT this morning -- entitled "Compromising the Constitution" -- notes that the real effects of this FISA bill are to make it "much easier to spy on Americans at home, reduce the courts' powers and grant immunity to the companies that turned over Americans' private communications without a warrant." And: "The real reason this bill exists is because Mr. Bush decided after 9/11 that he was above the law."
Those who support this bill, by definition, support both warrantless eavesdropping on Americans and the right of the President and private corporations to break our laws with impunity. As the NYT Editorial puts it:
Proponents of the FISA deal say companies should not be "punished" for cooperating with the government. That's Washington-speak for a cover-up. The purpose of withholding immunity is not to punish but to preserve the only chance of unearthing the details of Mr. Bush's outlaw eavesdropping. Only a few senators, by the way, know just what those companies did. Restoring some of the protections taken away by an earlier law while creating new loopholes in the Constitution is not a compromise. It is a failure of leadership.
Restoring some of the protections taken away by an earlier law while creating new loopholes in the Constitution is not a compromise. It is a failure of leadership.
The political class has made as clear as can be that it is intent on supporting a limitless erosion of core constitutional liberties and the creation of a two-tiered justice system that exempts the political elite from the rule of law. Neither the "opposition party" nor the establishment media are the slightest bit interested in, or capable of, stopping any of that. Battling against that is the responsibility of citizens who find these political trends dangerous and intolerable.
If enough senators strap on a pair and oppose the horrible FISA bill, Obama will have political cover to do the right thing and not look like a sellout. Blue America has created a call tool to help you contact your senator and demand they do the right thing on the FISA amendments. Take advantage of it now and then go sign Senator Feingold's petition, please:
http://tools.advomatic.com/7/fisa
http://www.democracyforamerica.com/activities/92-senate-petition-to-stop-telecom-immunity
Posted July 7, 2008 | 11:48 AM (EST)
That the United States Senate would even have to debate whether to uphold the rule of law is infuriating enough. But two weeks ago, the contrast in priorities became too much: as the Senate refused to address the tide of foreclosures impacting more than 8,000 people every day, it was poised and ready to provide immunity to giant corporations that may have broken the law.
So, I did what I felt I had to: I said no.
By blocking a vote on the Foreign Intelligence Surveillance Act (FISA), the fight to stop retroactive immunity goes on -- for another week anyway. The Senate will take the bill up again this week as it returns from the July 4th recess.
Of course, such procedural jujitsu was merely the latest twist in a fight that has now spanned nearly a year. During that time, I have used every forum available to me -- from the Senate floor to the presidential campaign to town halls around the country -- to talk about the importance of the rule of law and why a seemingly obscure dispute between government and corporations in our legal system is critical to upholding it.
A brief overview: we learned after September 11, 2001 that giant telecom companies worked with this administration to compile Americans' private, domestic communications records into a database of enormous scale and scope. The Bush administration appears to have convinced those corporations to spy on Americans for five years, in secret and without a warrant.
That we know this happened is not because the government told us -- they say the matter is classified. And it is not because one of the telecoms told us. We may not have known any of this at all were it not for serious investigative journalists. And we wouldn't know how deep the problem really went without an Internet technician by the name of Mark Klein, a 22-year veteran of AT&T who one day at work found a switch that channeled Internet traffic culled from millions of living rooms, bedrooms, kitchens and offices across the nation to a secret room operated by the National Security Agency. Mr. Klein was old enough to remember when a law was passed to prevent this sort of unchecked spying operation from happening:
FISA -- a law written back in 1978 in the wake of Watergate that ensured the government had both the tools it needed to defend the country and a process in place for judicial review to put checks on executive authority.
Most agree that this law needs to be modernized, as it has been many times over the years. But this time, the president is asking Congress to do something much more: to shield the telecoms from any judicial review of their actions. He wants Congress to declare spying without a warrant both constitutional and necessary to defend this country.
It is neither.
That is why I have done everything I can to stop retroactive immunity from being included in the FISA bill. As written, this bill does not say, "Trust the American people." It does not say, "Trust the courts and judges and juries to come to just decisions" about what happened at the telecoms. Rather, retroactive immunity sends this message:
"Trust me" -- a message that comes straight from the mouth of President Bush. I would never take "trust me" for an answer, not even in the best of times. Not even from a president on Mount Rushmore.
Besides, what exactly is the basis for that trust? Retroactive immunity may be a disgrace in itself, but it is merely the latest link in a long chain of abuses when it comes to contempt for the rule of law -- from the Justice Department basing its work on political calculations, to the shame of Abu Ghraib, to the passage of the Military Commissions Act, which sanctioned torture. The list goes on and on.
To many around the world, that is what America has become. Where Normandy, the Marshall Plan, and the Nuremberg trials invoked the image of America for previous generations, those coming of age today will now think of Guantanamo, waterboarding, and torture. People now have a basis upon which to ask whether the president serves the law or the law serves the president.
Did the telecoms break the law? I don't know.
But I am sure that if we pass retroactive immunity we'll never know. A handful of favored corporations will remain unchallenged. Their arguments will never be heard in a court of law. The truth behind this unprecedented domestic spying will never see light. And the cases will be closed forever.
I'm under no illusion that we will be able to keep this bill from the president's desk forever; two weeks ago, I was disappointed that we could only muster 15 votes out of the necessary 41 to block consideration of FISA.
But every second we can continue to raise this issue and hold this Administration's feet to the fire for its contempt for the rule of law these last seven years is another opportunity to keep asking:
When we undermine the rule of law, do we make our nation more secure -- or less?
Over the next few days, that's the question we'll be asking. But I think we already know the answer.
Lots of misinformation about FISA on this blog, in particular the facile and foolish analysis of Jonathan Alter, but the bottom line is it is a bad bill and bad for this country and compromise is NOT necessary right now. Please let the senate know how you feel. Sign Senator Feingold's petition against FISA. Here's the link:
This is why the FISA debate matters (from Glenn Greenwald, Salon.com):
Nancy Soderberg was deputy national security advisor and an ambassador to the United Nations in the Clinton administration. Today, she has an Op-Ed in the Los Angeles Times defending the FISA bill and telecom amnesty. The entire Op-Ed is just a regurgitation of the same trite, vague talking points which the political elite are using to justify this bill, accompanied by the standard invocations of "National Security" which our Foreign Policy elite condescendingly toss around to justify whatever policy they're claiming is necessary to protect us. But it's the language that she uses -- and the brazenness of the lying (and that's what it is) to justify this bill -- that's notable here.
It's notable because the political establishment is not only about to pass a patently corrupt bill, but worse, are spouting -- on a very bipartisan basis -- completely deceitful claims to obscure what they're really doing. This is what Soderberg says is what happened:
The Senate is dragging its feet because the compromise bill's opponents -- mostly Democrats -- want also to punish the telecommunications companies that answered President Bush's order for help with his illegal, warrantless wiretapping program. That is the wrong target. In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration's effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration's written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful." We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power.
In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration's effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration's written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful."
We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power.
That just isn't how our country works and it never was. We don't have a King who can order people to break the law. I have no doubt that people like Nancy Soderberg are spending the July 4 weekend paying shallow homage to the Founding, all the while being completely ignorant of or indifferent to the principles they pretend to celebrate. Just compare her claim that telecoms were justified, even required, to comply with the President's "order" to break the law with Thomas Paine's view, set forth in his 1776 revolutionary pamphlet Common Sense concerning how our country was supposed to work:
But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.
So much of this comes from the constant fetishizing of the President as the Supreme Leader, "our" Commander-in-Chief, rather than -- as the Constitution explicitly states -- "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." In the U.S., private actors don't have government "commanders" who can "order" or "direct" them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg -- in tandem with the rest of the political establishment -- claiming that private telecoms were justified, even compelled, to obey unlawful "orders" from the President, and are therefore entitled to be immunized from consequences.
Beyond that, her mentality reveals a profound ignorance of privacy laws and the history of spying abuses in the this country. Soderberg repeats the standard Democratic excuse for immunizing telecoms -- that telecoms are "the wrong target" because "the government should be held responsible, not private industry," and thus, "the companies that followed those directives are not the ones to blame for that abuse of presidential power."
This is all based on the false claim that privacy laws such as FISA were meant to restrict Government conduct, not those of telecoms. The exact opposite is true. FISA and other laws which the telecoms broke -- not just after 9/11, but for many years -- were written specifically to restrain how telecoms cooperate with Government spying requests. As Cindy Cohn, lead counsel for Electronic Frontier Foundation, explained when I interviewed her last October:
We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government. So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King. As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance. So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.
So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.
As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.
So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.
Nancy Soderberg shouldn't be singled out. She's just disseminating the settled-upon talking points of the Democratic establishment and media elite in justifying this bill -- the same basic ones that pervade the manipulative and at times misleading statement issued by Barack Obama on Friday. She's speaking from the same script. But Soderberg's formulation is particularly artless and she thus advances statements which are just inexcusably false, so flagrantly and knowingly false that they're just offensive to read. She writes:
But what's most objectionable to some Democrats is a provision that provides telecommunications companies accused of past wrongdoing the right to have their cases reviewed in district court.
Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it's necessary.
Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution.
The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions.
The compromise bill satisfies both sides: Under congressional oversight, it puts the responsibility for past surveillance squarely on the administration, where it belongs, and allows the courts to determine the legality of these actions.
The bill thus ensures that what Soderberg admits is lawbreaking by both the Government and telecoms will never be addressed or resolved by a court of law. It shields the lawbreakers from accountability in court. That's its whole purpose. She has to know that, and yet here she is, telling people that this bill is a just and good policy because it "allows the courts to determine the legality of these actions." Can anyone coherently deny that it's outright lying to claim that this bill "allows the courts to determine the legality of these actions" when it does the exact opposite?
What all of this is really about -- the reason why political elites like Nancy Soderberg are so eager to defend it -- is because they really do believe that lawbreaking isn't wrong, that it doesn't deserve punishment, when engaged in by them rather than by commoners. People who defend telecom immunity or who say that it's not a big deal are, by logical necessity, adopting this view: "Our highest political officials and largest corporations shouldn't face consequences when they break our laws as long as they claim it was for our own good." That's the destructive premise that lies at the heart of this deeply corrupt measure, the reason it matters so much. Just like the pardon of Nixon, the protection of Iran-contra criminals, and the commutation of Lewis Libby's sentence, this bill is yet another step in cementing a two-tiered system of justice in America where our highest political officials and connected elite can break our laws with impunity.
Protecting government and corporate elite from flagrant lawbreaking is what our own political establishment always claimed was the hallmark of third-world, under-developed tyrannies. This 1998 essay by Thomas Carothers of the Carnegie Endowment for International Peace -- in the ultimate establishment organ, Foreign Affairs -- was entitled "The Rule of Law Revival," and argues optimistically that the "rule of law" has now become the centerpiece, the prime consensus, for most international relations and has been recognized as the linchpin for third-world countries developing into functioning democracies. It speaks for itself in terms of what the Nancy Soderbergs, Jay Rockefellers, Fred Hiatts, Dick Cheneys and all their establishment comrades are doing to our country by acting to cover-up the single most flagrant act of Bush lawbreaking and immunizing the key lawbreakers:
LEGAL BEDROCK THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding. . . . The primary obstacles to such reform [in the Third World] are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. . . . Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.
THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding. . . .
The primary obstacles to such reform [in the Third World] are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. . . .
Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.
* * * *
Following numerous requests from those who contributed to our campaign against those responsible for this FISA and telecom amnesty travesty, we are in the process of preparing a full-page ad -- highlighting how false are the claims being made to justify this bill and the reasons it is so corrupt -- to run this week in The Washington Post (assuming it is accepted) and other similar venues.
