Like Jim Himes, Donna Edwards has been very good on FISA as a congressional challenger. She’s now the Democratic nominee for Congress in the Maryland 4th and hopefully will be a strong voice for civil liberties and the rule of law in the House by this time next year.

This paragraph in Carl Hulse’s NY Times piece on FISA today stood out:

Ben Powell, general counsel for the director of national intelligence’s office, said some carriers had already asked whether they could be compelled to cooperate even without legal protection, although he indicated that none had actually threatened to halt operations. [Emphasis added]

This is incredibly important to the retroactive immunity debate: the telecoms are not threatening to stop helping the US government monitor suspected terrorists if they don’t get retroactive immunity. They will continue to assist in intelligence collection even if they don’t get retroactive immunity.

Glenn Greenwald is right:

Outside of National Review, K Street, and the fear-paralyzed imagination of our shrinking faux-warrior class, there is no constituency in America demanding warrantless eavesdropping or amnesty for lawbreaking telecoms.

Which, naturally leads to Duncan Black’s conclusion of the Bush administration’s motives: “I don’t actually believe this is about protecting the telcoms; it’s about protecting themselves.”

Moreover, to get back to Powell’s acknowledgement that the telecoms are not trying to stop their work with the government over retroactive immunity, Greenwald also makes clear that non-cooperation for legal requests from the government is not an option.

telecoms are required to cooperate with legal requests from the government. They don’t have the option to “refuse.” Without amnesty, telecoms will be reluctant in the future to break the law again, which we should want. But there is no risk that they will refuse requests to cooperate with legal surveillance, particularly since they are legally obligated to cooperate in those circumstances. The claim the telcoms will cease to cooperate with surveillance requests is pure fear-mongering, and is purely dishonest. [Emphasis in the original]

The telecoms won’t stop partnering with the government because when the requests are legally made – with court orders and warrants, as originally laid out in FISA – they have no outlet for refusing the requests. But, as we saw with Qwest, when the requests are not accompanied by a warrant, the companies are allowed to say no.

Nonetheless, according to the Director of National Intelligence’s general counsel, no telecoms are threatening to stop cooperating with the government in the absence of retroactive immunity. The only scenario when their cooperation would be in question would be when the government asks for their help and does not have a court order, and the telecoms are still saying that they’ll work with the government in those situations. Separate from any consideration of what that says about the conduct of the telecom companies in relation to FISA law, it shows that there is zero need for retroactive immunity for surveillance to move forward, as the telecoms are not making it a condition on their cooperation in warrantless surveillance.

Update:

Jack Balkin has a similar take as Atrios:

In essence, the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law.

It’s all about the Bush administration’s lawlessness, folks.

Joe Lieberman’s defense of torture is truly astounding. In an articled titled “Lieberman Says Some Waterboarding OK,” the Connecticut Post reports:

“We are at war,” Lieberman said. “I know enough from public statements made by Osama bin Laden and others as well as classified information I see to know the terrorists are actively planning, plotting to attack us again. I want our government to be able to gather information again within both the law and Geneva Convention.”

In the worst case scenario — when there is an imminent threat of a nuclear attack on American soil — Lieberman said that the president should be able to certify the use of waterboarding on a detainee suspected of knowing vital details of the plot.

“You want to be able to use emergency tech to try to get the information out of that person,” Lieberman said. Of course, Lieberman believes such authority has limits. He does not believe the president could authorize having hot coals pressed on someone’s flesh to obtain that information.

The difference, he said, is that waterboarding is mostly psychological and there is no permanent physical damage. “It is not like putting burning coals on people’s bodies. The person is in no real danger. The impact is psychological,” Lieberman said.

Lieberman is squarely in line with John McCain and the rest of the pro-torture GOP.

First, I hope by “emergency tech” Lieberman means emergency techniques and not emergency technology, as I don’t know that water is a technology and I’d rather not care to speculate on Lieberman’s fantasies of how technology can be used to inflict physical and psychological pain to the point of breaking someone.

What strikes me as particularly remarkable is how Lieberman pretends to have standards about how we’re allowed to torture people. Burning coals? No. Drowning? Yes. He has clearly embraced the false notion that the issue of how we torture is one of picking the right items off of a menu and not the existence of the menu in the first place.

Of course, Connecticut is represented by one humane Senator in Chris Dodd. Dodd makes the point that needs to be repeated from the mountaintops:

This month, Dodd bluntly described waterboarding as torture. “Let me be clear: there is no such thing as simulated drowning. When a person is strapped to a board and water is poured into their mouth and nose with no way to get air, that is drowning; that is torture,” he said.

If you can drown, the impact is physical. And like all other forms of torture, waterboarding also has a psychological impact.

I think it’s worth noting, but the impact of Joe Lieberman being primaried was psychological for him. He still hates those Dems who endorsed Ned Lamontpost-primary. No one poured water down his throat, but Joe Lieberman has it out for Democrats like Chris Dodd who believe in the rule of law, the Geneva Conventions, and the simple fact that in the US we do not torture, not even a little bit (and when we find out we did, we don’t change the law to make it legal after the fact).

The psychological impact of Joe Lieberman losing his Democratic primary and bolting the party has led him to endorse a Republican for President and vote with the GOP on partisan votes over 90% of the time this year. All we did was subject him to the democratic process. Can you imagine how actually being tortured can turn suspected terrorists against America? Can you imagine the bile and venom of Joe Lieberman played out on the scale of a terrorist who’s been waterboarded? Psychological impact damages us. Physical impact damages us. Torture is always wrong. This is as uncomplicated as it gets.

Earlier today I’d posted that it seemed likely that the Protect America Act would be allowed to sunset this weekend, based on a combination of Republican obstructionism on getting an extension and that the PAA expiring will not impact our intelligence community’s ability to monitor suspected terrorists. It now seems certain that the PAA will sunset, as the House is going to go into recess without trying to pass another extension.

Jason Rosenbaum at The Seminal has the details of what’s happened:

Nancy Pelosi has stated that the House will go into recess without another vote on FISA, which means the Protect America Act will expire.

Let’s review what happened, shall we?

• The House passed the RESTORE Act in November, an update of FISA that did not include retroactive immunity.
• The Senate was forced to stop debate on FISA after Dodd’s filibuster, leaving the issue open until the new year.
• The Senate took up FISA again, and on Tuesday passed a version of the bill with retroactive immunity and everything else Bush and his fearmongers wanted.
• The President tried to bully the House into passing the Senate version of the FISA bill.
• After an extension failed in the House yesterday, and debate went nowhere today, Nancy Pelosi refused to back down and put away FISA for another day. The Protect America Act will expire.

McJoan at Daily Kos has statements from Pelosi and Steny Hoyer.

House Judiciary Chair John Conyers has said he’ll stick around to work on the legislation and it looks like other key members of the House and Senate will continue to work on next steps with this legislation:

“I have told my colleagues in the House that I am committed to working through this recess and will be discussing this legislation with Chairman Reyes and Senators Leahy and Rockefeller. I appreciate the President’s dedication to seeing this through and hope that he will join me in putting Americans before corporate interests.”

We shall see what this produces, but with House Dems standing strong hopefully retroactive immunity can be removed from whatever bill is sent to the President.

Cross posted at the CREDO Blog.

Representative Silvestre Reyes is a key member in the current FISA fight. Reyes is Chairman of the House Permanent Select Committee on Intelligence. His committee rejected the concept of retroactive immunity last fall, one of the three congressional committees that rejected immunity for the telecoms. He will likely be on the conference committee that hashes out how the Senate and House reconcile their two conflicted pieces of FISA legislation. With all of that in mind, it’s very heartening to see Rep. Reyes send a strongly worded letter to President Bush outlining his commitment to the rule of law and his continued opposition to retroactive immunity.

If our nation is left vulnerable in the coming months, it will not be because we don’t have enough domestic spying powers. It will be because your Administration has not done enough to defeat terrorist organizations – including al Qaeda — that have gained strength since 9/11. We do not have nearly enough linguists to translate the reams of information we currently collect. We do not have enough intelligence officers who can penetrate the hardest targets, such as al Qaeda. We have surged so many intelligence resources into Iraq that we have taken our eye off the ball in Afghanistan and Pakistan. As a result, you have allowed al Qaeda to reconstitute itself on your watch.You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.

Congress has not been sitting on its hands. Last November, the House passed responsible legislation to authorize the NSA to conduct surveillance of foreign terrorists and to provide clarity and legal protection to our private sector partners who assist in that surveillance.

The proper course is now to conference the House bill with the Senate bill that was passed on Tuesday. There are significant differences between these two bills and a conference, in regular order, is the appropriate mechanism to resolve the differences between these two bills. I urge you, Mr. President, to put partisanship aside and allow Republicans in Congress to arrive at a compromise that will protect America and protect our Constitution.

I, for one, do not intend to back down – not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear.

We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won. [Emphasis added]

This is a shot across the bow to President Bush and a good sign that House Democrats, unlike their colleagues in the Senate, aren’t about to give up on the rule of law just because George W. Bush and Dick Cheney asked. Well done, Mr. Reyes.

Cross posted at the CREDO Blog.

I really hope that I’m not the only person who sees the irony of House Republican Minority Leader John Boehner decrying what he thinks is partisan grandstanding and responding by ordering the Republican caucus to walk out of the House on live television and go directly to the steps of the Capitol and a waiting bank of cameras for a press conference.

Think Progress has the video – judge for yourself who’s doing the grandstanding.

Regardless of any assessments about what does and does not count as grandstanding, the House passed contempt citations on Harriet Miers and Josh Bolten while the Republicans were holding their press conference. Jesse Lee at The Gavel writes:

Today, the House has just approved H.Res. 982, which provides for the adoption of H.Res. 979, recommending that the House of Representatives find Harriet Miers, former White House Counsel, and Joshua Bolten, the White House Chief of Staff, in contempt of Congress for refusal to comply with subpoenas issued by the Judiciary Committee. These subpoenas were issued as part of the Committee’s investigation into the firings of a number of United States Attorneys and matters concerning the politicization of the Justice Department. This resolution also provides for adoption of H.Res. 980 – Authorizing the Committee on the Judiciary to initiate or intervene in judicial proceedings to enforce certain subpoenas.

In other words, Congress just stood up for the rule of law. The Bush administration thinks they are above it and have acted accordingly. The House has reasserted that the legislature is a co-equal branch as the executive. Actions have consequences and the law must be followed. This goes whether it’s a Democratic White House or a Republican White House — good government is strengthened by the rule of law and undermined by the rule of men. This sort of principled action has been far too long coming.

Here are a few lines that merit attention.

Rep. Brad Miller:

“The President cannot decide by decree. The President cannot announce with absolute unreviewable authority what information the Administration will provide or withhold. The framers of our Constitution had just fought a war against an autocratic king. It is inconceivable that they intended to create and executive branch with the power the Bush Administration now claims and that the minority now supports.”

Rep. Linda Sánchez:

“Members on both sides of the aisle should recognize the gravity of this vote. If the executive branch is allowed to simply ignore Congressional subpoenas while Congress idly stands by, we will have abdicated our role of oversight of the executive branch and undermined our system of checks and balances.”

Rep. John Yarmuth:

“So when we came here, one of the things we did was to start talking about Article 1. Article 1, which established the Congress of the United States and vested all legislative powers therein. We started wearing these buttons, Article 1 buttons, and we offered them to Members of both parties hoping that this would not be a partisan issue and not be an expression of partisanship, and instead of respect for the integrity of this institution. Unfortunately, most of my colleagues on the other side chose not to wear these buttons. They’ve chosen to make this a partisan issue. In spite of the fact that during the last six years before we took control of the Congress, no subpoenas were issued against this president, no efforts to hold him accountable were made in spite of the fact that in the prior administration, 1,000 subpoenas were offered by the Republican Congress to the Democratic president.”

We need more of this in Congress. More principled leadership to defend the rule of law. More public, vocal dedication to the Constitution. More forceful opposition to the Republican obstructionism and obsequiousness of the Republican caucus to this lawless presidency. Good on the House Dems today – now just keep doing this.

Via Matt Stoller.

Edwards’ strength on FISA and corporate corruption issues was something that was clear throughout her campaign. No doubt having that as a hook to bring people online in added to her campaign’s overall strength. Standing up for the rule of law and against corporate favoritism is politically popular.

Yesterday House Republicans blocked a 21 day extension to the Protect America Act. The law is scheduled to sunset this Friday, after having previously received a 15 day extension at the end of January. Don’t worry – the PAA sunset won’t have any impact on the government’s ability to collect intelligence on terrorist threats. Eric Lichtblau of the New York Times reports:

The lapsing of the deadline would have little practical effect on intelligence gathering. Intelligence officials would be able to intercept communications from Qaeda members or other identified terrorist groups for a year after the initial eavesdropping authorization for that particular group.

This echoes the the words of Speaker Nancy Pelosi yesterday:

On Friday, a surveillance law insisted upon by the President last August will expire. Today, an overwhelming majority of House Democrats voted to extend that law for three weeks so that agreement could be reached with the Senate on a better version of that law. The President and House Republicans refused to support the extension and therefore will bear the responsibility should any adverse national consequences result.

However, even if the Protect America Act expires later this week, the American people can be confident that our country remains safe and strong. Every order entered under the law can remain in effect for 12 months from the date it was issued.

Furthermore, the underlying Foreign Intelligence Surveillance Act, which provides for the surveillance of terrorists and provides that in emergencies surveillance can begin without warrant, remains intact and available to our intelligence agencies. Unlike last August, the FISA court has no backlog of cases, and thus can issue necessary court orders for surveillance immediately.

From a practical standpoint, what this means is that the sunset of the PAA should not create an environment where Democrats are negotiating under political duress.

It seems like the House Democratic leadership, notably Speaker Pelosi, Majority Leader Steny Hoyer, and House Intelligence Committee chair Silvestre Reyes are all standing firm on passing good legislation. They’ve been vocal in opposition to the Republican talking points. From the Lichtblau piece:

The expiration of the powers “doesn’t mean we are somehow vulnerable again,” said Representative Silvestre Reyes, Democrat of Texas and chairman of the House Intelligence Committee.
…

“The president’s presentation this morning was, I think, basically dishonest,” said Representative Steny H. Hoyer of Maryland, the majority leader.

This is good. Hopefully these statements by Pelosi, Hoyer, and Reyes are a sign of things to come from the House in the conference committee report. As of now, the membership of the conference committee has not been set and some procedural steps would have to take place before they begin working out the differences between House and Senate version of FISA legislation.

Cross posted at the CREDO Blog.