Democratic Representatives John Conyers, Jerry Nadler, and Bobby Scott write to Attorney General Mukasey to ask him about his comments about a pre-9/11 call from Afghanistan that the Bush administration knew about, but did not intercept, that is allegedly connected to the 9/11 attacks. The letter also questions Mukasey on a controversial memorandum from the Office of Legal Counsel that claims “the Fourth Amendment had no application to domestic military operations.” These House Judiciary Committee Dems are pushing back hard on the Bush administration’s latest fear mongering and iterations of the unitary executive theory. Nadler, my Congressman, has been fantastic on rule of law issues of late and was a key architect of the improved House FISA legislation passed last month. I think his efforts are under appreciated by the netroots community, though if he keeps on this pace, that will change. Keep up the good work Congressman.

Full letter below the fold.

Continue reading “They Write Letters” →

The ACLU has put out a great video looking at the disparities in sentencing between crack and powder cocaine. Learn more about our unfair drug laws and how they should be changed from the ACLU Drug Policy site.

Good news from the House, which passed the FISA Amendments ACt with a vote of 213-197-1.

Some Blue Dogs, like Leonard Boswell, came around to vote for this Democratic legislation, a testament to Speaker Pelosi’s hard work whipping the caucus on this bill. It looks like the Democratic “no” votes were a mix of Blue Dogs and progressives; a drop froom 21 Blue Dogs saying they’ll vote against the caucus to six shows how well they were wrangled. It is also a testament to the importance of grassroots pressure, online and off, that has existed around this issue intensely for the last six months (though really going back to December 2005, when the NY Times first broke the story of the Bush administration’s warrantless wiretapping program.) Congress moved on this and developed strategies that lead towards victory. The bill goes to the Senate now, where there is still much work to do. But it’s clear, when Democrats stand on principle and defend the Constitution with their majority, it is much harder for abuses to continue.

Last night the Republicans got to have a secret session in the House to talk about the new legislation the House will be voting on today. Yóu’d think that if the session needed to be in secret, there’d be new information coming out on warrantless wiretapping and why the big telecom companies need retroactive immunity, but you’d be wrong. McJoan of Daily Kos reports on a statement from Steny Hoyer following the session and what it all means.

Steny Hoyer did have this to say upon the session’s end:

“I did not hear any new information tonight that dissuades me from my very strong belief that the FISA bill House Democrats have produced – and which the House will vote on tomorrow – is a reasonable, thoughtful, appropriate piece of legislation that will ensure that the intelligence community has all the tools it needs to protect our nation, while also respecting the Constitutional protections that Americans rightfully feel are so important. Tomorrow, I will urge members on both sides of the aisle to vote for this legislation.”

Because there was no new information to be had. The House leadership called the Republicans’ bluff–they probably called for the damned thing thinking the Dems would reject it, and then they would have some great tool to use against them in the debate. I can just hear them now: “Not all the secret information was heard, it’s irresponsible of them to go forward with this vote.”

Well, leadership let the Republicans have their little session, even though they admitted on the House floor in the debate leading to the session that they had no new info. They were left standing there holding the bag, just creating one more obstruction. Funny way for them to behave, considering how dangerous they say it is for the nation to go one more day without resolution of the FISA issue.

Oh and that Republican-called secret session in Congress? Glenn Greenwald notes that just last month Minority Leader John Boehner was against any sort of secret debates on this legislation. 

The House is expected to vote today. I don’t know where the whip count is exactly, but expect it to be close. Democrats need to keep progressives in the caucus on board with the new plan, which includes generally good oversight provisions and leaves it up to federal courts to decide if the telecoms need immunity. The word is that the Speaker is whipping very hard and may be able to hold a number of Blue Dogs with the rest of the caucus, which would presumably mean that the legislation will pass.

Once the new House FISA legislation passes, it will be sent along for the Senate to consider. I do not have a sense on how likely it would be for the Senate to adopt it without further modification, but we will worry about that once the House passes this bill. Make no mistake, the new House legislation is a big step up on the previously passed Senate Intelligence Committee bill. The House leadership should be applauded for standing up for the Constitution and rejecting what the Senate has passed as a means of moving forward.

Naturally, if the House and Senate both pass this new legislation, President Bush will veto it. Of course, President Bush’s understanding of the Constitution and the balance of civil liberties and national security has never been a metric worthy of consideration when figuring out what the law should be in America. Hopefully the pro-Constitution Democrats will continue to ignore it as they plot a course forward.

Tim Stark at CQ has new information about what House Democrats are doing on FISA. The short version is that they’re circumventing the intra-congressional negotiations for compromise legislation and taking another shot at a bill in the House. That was not entirely clear in this morning’s NY Times piece by Eric Lichtblau.

House Democrats plan to take up surveillance legislation this week that would reject White House insistence on retroactive legal immunity for telecommunications companies that have cooperated with the government in warrantless wiretapping.

The draft legislation also would establish a bipartisan commission to investigate the president’s warrantless surveillance initiative, according to a House Democratic official.

House Democratic leaders, under election year pressure from the right to give in to the White House and from the left to stand firm, hope to pass the draft bill before they leave for the two-week spring recess.

The latest proposal would sidestep stalled House-Senate negotiations over an overhaul (HR 3773) of the Foreign Intelligence Surveillance Act (FISA, PL 95-511). But most aspects of the new legislation were developed without Senate consultation, so it is unlikely to break the logjam.

…

Although the legislation would not confer immunity on telecommunications carriers, it would address one argument for it. Because the administration has invoked the state secrets privilege in the lawsuits against the companies, the companies maintain they are unable to adequately plead their case without the ability to introduce evidence that the administration wants shielded from court disclosure.

The House official said the new legislation would “allow courts with lawsuits pending to establish procedures to hear secret evidence.”

So this does look more likely to happen this week, before the recess (but that would make it difficult for the Senate to address it before their recess). The Senate previously rejected Feinstein’s “good faith” amendment, which is similar to the House proposal. Feinstein’s amendment was 19 votes short of passage. The new House legislation does not strike me as substantially more likely to pass. Stark notes that the House bill would include permission of blanket warrants:

The House bill would require a warrant for the surveillance of foreign targets who may be communicating with people in the United States, but would permit surveillance of a large number of such targets at once.

Between blanket warrants and punting the retroactive immunity decision to the federal courts, I find it highly unlikely that the liberal faction of the Senate – people like Dodd and Feingold – would support the House bill. Frankly, while it may be marginally more acceptable to moderates, it doesn’t look quite as good on civil liberties as the RESTORE Act or the Senate Judiciary Committee version of the bill. Of course, because it’s a better solution than the SSCI bill the Senate passed, we know Rockefeller and the Republicans will look to strip the good civil liberties provisions and add immunity back in.

We know the House and the Senate are far apart. We know Rockefeller is a huge road block. The process is progressing, but I don’t see a solution in sight, certainly not one that includes no immunity and strong civil liberties provisions.

Update:

I’ve just received clarification from a source on the Hill. The House provision on having courts handle the pending cases is not actually one of “good faith” like Feinstein’s amendment. The federal court would just evaluate whether what the companies did was legal under the law at that time. If the standard is legality and not the intentionality of the companies, then this is a much more attractive provision.

Eric Lichtblau of the New York Times reports a new possible deal on FISA coming out of the House:

The tentative proposal worked out by House Democratic leaders, officials said, has three main elements.

In continued defiance of the White House, House Democratic leaders are readying a proposal that would reject giving legal protection to the phone companies that helped in the National Security Agency’s program of wiretapping without warrants after the Sept. 11 attacks, Congressional officials said Monday.

Instead of blanket immunity, the tentative proposal would give the federal courts special authorization to hear classified evidence and decide whether the phone companies should be held liable. House Democrats have been working out the details of their proposal in the last few days, officials said, and expect to take it to the House floor for a vote on Thursday….

It would impose tougher restrictions on National Security Agency eavesdropping than the Senate version does by requiring court approval before the agency’s wiretapping procedures, instead of approval after the fact. It would also reject retroactive immunity for the phone carriers.

The proposal would also create a bipartisan Congressional commission with subpoena power to issue a report on the surveillance programs, including the one approved by Mr. Bush to monitor some Americans’ international communications without warrants.

The commission would seek to find out how the program was actually run. Some Democrats complain that even now, more than two years after the program was first publicly disclosed, many questions about its operations remain unanswered.

The idea of giving federal courts specific jurisdiction to determine the immunity issue is somewhat similar to a proposal made in the Senate by Senator Dianne Feinstein, Democrat of California. That was soundly defeated by a vote of 57 to 41….

Under the proposal, the courts would be given authority to hear classified evidence in the civil suits — perhaps on an “ex parte” basis, with only one side in attendance — to determine whether the companies are immune from liability. Officials said the proposal would most likely give that authority to a federal district court, but it is possible that the Foreign Intelligence Surveillance Court in Washington could be given that authority instead….

“This is not the end of the road,” the House Democratic staff member acknowledged. “We’re trying to build support for the provision.” [Emphasis added]

This is interesting in that it relies on the courts to determine if the telecoms should get retroactive immunity, but keeps the cases in regular federal court and not the secret Foreign Intelligence Surveillance Court. This is different from the Feinstein amendment Lichtblau refers to in the article. Feinstein’s “good faith” amendment to move consideration of cases to the secret Foreign Intelligence Surveillance Courts (#3919) failed 41-57. 60 votes were needed for it to pass. While the Democratic caucus was largely in favor of this, some liberal senators like Dodd and Menendez again voted against it for the special treatment it would have provided the telecoms. I do not know whether keeping the assessments of “good faith” in regular federal courts instead of the FISC removes the sense among liberal senators that the telecoms would be given special treatment.

While it’s good to hear that House Democrats are, in fact, continuing to resist putting forward legislation that includes retroactive immunity, this plan just doesn’t seem that likely.

Last Friday, when news broke that a deal was imminent that would hinge on the House ping-ponging legislation with the Senate, so the Senate would add retroactive immunity and the House – relying on support from the GOP and Blue Dog Dems – would approve the Senate bill, Senator Jay Rockefeller’s office quickly told TPM Muckraker that they would not agree to such a deal. That is, Rockefeller was going to use his position in the negotiations of the legislation to block approval of a ping-ponging strategy that didn’t include immunity in the House bill, even though that strategy was still almost certain to assure immunity passed. The takeaway from that was that Rockefeller continues to be the major hurdle for Democrats putting forward good legislation.

The proposal being floated now not only doesn’t assure retroactive immunity as Rockefeller wants it will not be guaranteed, but includes provisions that could preclude retroactive immunity from being added by the Senate. I don’t know whether this deal would include the ping-ponging strategy or not. But if the bill is likely to be substantially changed by the Senate, I don’t know whether the House Dems pushing for this particular deal would let it move forward.

What is most immediately apparent is that negotiations remain ongoing behind closed doors. We don’t know yet what the outcome will be, but we may continue to get various plans leaked to the press. We’ve had two conflicting outcomes floated in the last four days. They wide variance between the two suggests how far we may still have to go in the process.

One thing to keep in mind is that the Senate is in recess from March 15-30th and the House is on recess from the 17-28th. If negotiations aren’t resolved and voted on by the end of this week, it’s likely FISA won’t be resolved this month. Negotiations may continue during the recess, but no legislation will be voted on.

The bottom line remains the same. The House and the Senate have an obligation to not pass a bill that includes retroactive immunity nor support any legislative process that would guarantee retroactive immunity pass. If it is not possible for Democrats to put forward legislation that moves along a path that ensures that retroactive immunity is not granted to big telecom companies, then they have an obligation to the Constitution to put forward no legislation and wait until next year to address new FISA legislation.

Update:

I’ve just received clarification from a source on the Hill. The House provision on having courts handle the pending cases is not actually one of “good faith” like Feinstein’s amendment. The federal court would just evaluate whether what the companies did was legal under the law at that time. If the standard is legality and not the intentionality of the companies, then this is a much more attractive provision.