Category: Rule of Law

Some FISA Amendments Getting Votes Tonight

It looks like, after another day spent mostly debating the economic stimulus package, the Senate will be voting on four amendments to the FISA legislation tonight. Senator Reid said that there will be two roll call votes and two voice votes tonight. That would leave six more amendments that need votes, which would happen tomorrow and Monday if necessary. There is also at least six hours of FISA debate that remains outstanding. Senator Reid seems like he’d like to get a vote on final passage by Tuesday.

I’m not fully clear yet what four amendments will be voted on, but it looks like at least two of them will pertain to use limits and reverse targeting.

The first up is Feingold’s “use limits” amendment.

This amendment, which was part of the Senate Judiciary Committee version of the FISA bill, gives the FISA Court discretion to impose restrictions on the use of information about Americans that is acquired through procedures later determined to be illegal by the FISA court. This enforcement mechanism is needed because the government can implement its procedures before it has to submit them to the FISA Court for review to determine whether they are reasonably designed to target people overseas rather in the United States.

It looks like it will be followed by Feingold’s “significant purpose” amendment. I don’t have a good description for it, but will pass along when I do.

The Rule of Men

David Kravitz at Talking Points Memo is following the testimony of Attorney General Mukasey before the House today. He passes along a note that should go down as the day in which the Bush administration formalizes its position that the United States should be a country that is subject to the rule of men and not the rule of law.

So far, [Mukasey’s] dropped two big bombshells. DOJ will not be investigating:

(1) whether the waterboarding, now admitted to by the White House, was a crime; or

(2) whether the Administration’s warrantless wiretapping was illegal.

His rationale? Both programs had been signed off on in advance as legal by the Justice Department.

Cynics may argue that those aren’t bombshells at all, that the Bush Administration would never investigate itself in these matters. Perhaps so. But this is a case where cynicism is itself dangerous.

We have now the Attorney General of the United States telling Congress that it’s not against the law for the President to violate the law if his own Department of Justice says it’s not.

It is as brazen a defense of the unitary executive as anything put forward by the Administration in the last seven years, and it comes from an attorney general who was supposed to be not just a more professional, but a more moderate, version of Alberto Gonzales (Thanks to Democrats like Dianne Feinstein and Chuck Schumer for caving on the Mukasey nomination.).

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.

For those not clear on the concept of the rule of law, Jack Balkin relays it well here:

the rule of law is not simply a formal legal requirement that like cases be treated alike, but rather a set of political values that must be realized in institutions of law. They include the principle that laws should be designed to restrain the arbitrary exercise of power, that no one should be be a judge in their own case, that executive officials should be accountable for their acts, and that laws should be public and applied fairly and impartially. These political values, which legal institutions should seek to implement, are principles and not rules; they do not determine the scope of their own extension and application, and therefore how best to implement them can be controversial. Nevertheless, they are central to having a government under law.

Here are some words the Founders used to describe actions that struck against the rule of law and established tyranny over the American colonies.

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

Those charges are written into our Declaration of Independence. They are not small. They are not incidental. They were so offensive to our Founders that it lead to revolution against British rule. And here we are today. Attorney General Mukasey is stating in plain terms is that he and his colleagues in the Bush administration are content to precipitate a massive constitutional crisis.

The question now stands, what will the Congress do about it? What will the media tell the public about it? If I had to guess, the  answer to both questions will be, “Nothing.”

I think Mr. Mukasey should be challenge on his positions today and if he does not reverse course, he should be impeached. If that fails to make the executive branch comply with Congressional subpoenas and oversight actions, then the President should be impeached. I have never been a supporter of impeachment. But these are the tools available to us through our Constitution and I think the best way to avert this constitutional crisis is to continue to try to exercise the powers granted to the Congress by the Founders. We cannot let America become a nation subject to the rule of men, especially men like Michael Mukasey and George W. Bush.

“Always Wrong and Always Illegal”

Senator Chris Dodd hits back hard against the White House statements that waterboarding is legal and has been used to torture multiple prisoners. Here’s Dodd’s statement, via press release:

“The statement by a White House spokesperson yesterday asserting that waterboarding is legal and President Bush could authorize the CIA to continue using this technique demonstrates a staggering disregard for the rule of law. 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. The President must repudiate this statement and make clear that all forms of torture—including waterboarding—are always wrong and always illegal.” [emphasis added]

I think the inclusion of the point about waterboarding and drowning is important. The media has bought the GOP talking point that waterboarding only “simulates” drowning and therefore it’s somehow OK. Push back on this by key Democrats like Dodd is the only way we can change that narrative and get people to recognize that the admissions of waterboarding constitute admissions of torture, which, as Dodd says, is “always wrong and always illegal.”

State of Affairs

My angst over the impending failures of Democrats to win the FISA fight is compared positively to the angst Republicans at the National Review Online feel about the impending victory of John McCain as their party’s nominee. T Rex writes:

Okay, you guys know we’re probably going to lose the FISA fight, right? I was talking to a fellow blogger on the phone last night after it was announced that Obama had swept Georgia and I couldn’t help but be just a little excited, you know?

Well, my friend (who has been plunged up to his earlobes in FISA issues, tracking the tiniest movements between committees and members of Congress on the issue for months) was less than enthused. “Great,” he said, “I hope you enjoy tonight.” Although, his tone of voice was more, “Well, if you must believe the hype, I hope it brings you some small measure of comfort, since neither of these two candidates has so much as lifted a finger to protect your privacy from the prying eyes of the Bush administration…”.

I maturely shouted down the phone, “Phooey on you, Mr. Gloomy Sad-Sack McMiseryguts! Barack Obama is the BLACK KENNEDY! And he’s going to make EVERYTHING BETTER. He’s going to bring me a brand new Red Rider BB gun with a scope and a compass on the stock and a giant bag of candy, right after he parts the Red Sea for the Democrats, which he’s doing just to be nice because that man can just walk right on the water! Nyah, nyah, nyah!! LA LA LA LA LA! I can’t hear yooooou!”

Well, bleak as some aspects of our current situation may be, they’re still not as bad as they are for the Republicans, and far be it from me to refrain from laughing at their pain. And there’s no better place to do that than at the NRO’s blog, The Corner.

I don’t know if I should laugh or cry. I do feel good that the GOP is in such disarray, even as their nomination gets locked up. Comparatively, our nomination is a far more confusing situation, but hey, we all seem to like it. At the same time, though, my enthusiasm about our candidates has undoubtedly been tempered by their refusal to prioritize defending the Constitution and the rule of law in their campaigns and as Senators employed by the American people. Going far beyond the presidential candidates, the failure of Senate Democrats to set a stage that allows us to win is far more disheartening than the relative absence of Obama and Clinton. At least from an ideological standpoint, I trust that the presidential candidates are with me. I can’t say the same thing about Mr. Reid.

But hey, at least the GOP base is going to despise their nominee!

Athenae: Democrats Need to Step Up on FISA

Allison Hantschel has a great column in the Southtown Star today on the FISA fight. Hantschel is better known to most in the blogosphere as Athenae of First Draft. The whole column’s worth a read for its retrospective analysis of what the Bush administration is asking for and how compliant the Senate has been in allowing legislation to proceed in a path that seems to ensure Bush and Cheney and their buddies in the telecom industry will get everything they want. Here’s a short excerpt:

There are many aspects of the Bush administration’s actions in the past eight years by which George Orwell would be impressed, but none perhaps so much so as the Protect America Act.

It’s called the Protect America Act so that anyone who votes against it is voting against the Protect America Act, and don’t think for one minute that’s not why it’s called that. Why else would you be so discourteous to your native tongue?

What it did, when initially passed in 2007, was revise the Foreign Intelligence Surveillance Act to give cover to the Bush administration’s illegal program of wiretapping the conversations of Americans without court order. That program was exposed by the New York Times in 2005; Congressional hearings quickly deteriorated into fights about the best way to make lawbreaking legal so nobody felt bad about it.

To listen to Senate Republicans tell it, the act needs to be renewed now so we can stop another Sept. 11, 2001, from happening, which is their rationale for why everything they want needs to be enacted immediately.

But the only bill Bush could stomach was one that protected telecommunications companies from lawsuits stemming from their compliance with illegal wiretapping by the administration. It wasn’t enough to immunize everyone in government from what had been done to Americans for the past six years; we had to make sure AT&T didn’t need to call a lawyer. Or, as Ted Kennedy put it on the Senate floor, if you believe what Bush is saying, then “the president is willing to let Americans die to protect the phone companies.”

It would be laughable if it wasn’t so sad, and what makes it even sadder is that Democrats had to be prodded to fight illegal wiretapping at all. Only relentless citizen pressure convinced Sen. Chris Dodd, of Connecticut, to take up the issue of retroactive telecom immunity, though he has carried it admirably since, offering amendments and promising a filibuster when it looked like there was no other way to get the job done.

You can read the whole column at the Southtown Star.
Cross posted at the CREDO Blog.

Verizon’s Selective Regard for Customer Privacy

There’s been a number of stories recently about the potential for telecom companies to begin filtering all internet content to search for copyright violations, a move that would assist the entertainment industry police digital piracy. Early indication was that AT&T and others would also be filtering content for illegal or immoral material. In short, it’s a horrible idea that involves a complete invasion of privacy by telecom companies.

Thomas Mennecke of Slyck and Brad Reed of Network World had a good piece on the story when it broke. Joel Johnson of BoingBoing Gadgets took a shot at AT&T when he found out about this too.

Apparently, though, not all the big telecoms are going to go along for the ride. In an interview with the New York Times‘ Saul Hansell, Verizon VP Thomas Tauke says his company doesn’t want to participate in this kind of internet filtering, for a variety of self-interested and other reasons. One that caused me to raise my eyebrow throw the ceiling and quickly up six floors to the roof of my building: customer privacy.

“Anything we do has to balance the need of copyright protection with the desire of customers for privacy.”

This is the same company that turned over millions of its customers private records to the NSA. Recall the USA Today broke the story of this database in spring 2006.

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

At the time the story broke, Verizon offered no comment beyond they follow the law and try to protect customer privacy. They are now facing an unknown number of civil cases, presumably for this and other violations of customer privacy and eavesdropping laws. Not all telecom companies complied with

Verizon’s sentiment on this matter is certainly correct. I don’t think we want any of the big telecoms filtering the internet in an effort to track down copyrighted, illegal, or immoral content. But it’s a fantasy to think Verizon has a genuine regard for their customers’ privacy. They’ve disregarded privacy concerns at the behest of the Bush administration, without proper court order for years. They’ve lobbied the Senate heavily to try to secure retroactive immunity for their law breaking and pumped hundreds of thousands of dollars into campaign war chests this cycle.

While I welcome Verizon’s new desire to ensure customer privacy, I have to presume that it is their desire to avoid incurring costs for liability for copyright violations that motivates them here. Draping themselves in the concern for privacy is disingenuous at best and a slap in the face of anyone who has watched them partner with the Bush administration to violate the rights and liberties of Americans over the last seven years.

(Hat tip to Brett Schenker for alerting me to the story)

Update:

Martin Bosworth at Scholars & Rogues has more thoughts on Verizon’s new-found regard for customer privacy. He’s been writing a lot about the AT&T filtering the internet story and is a very good resource for people who want more information about this.

Cardin Amendment Fails

Ben Cardin’s Amendment 3930 to FISA legislation just failed 49-46. 60 “yes” votes were needed to pass, based on the negotiated agreement by the Senate Democratic and Republican leadership.

The Cardin Amendment would have limited the SSCI bill to a 4 year extension. Since it failed, whatever new legislation is passed will sunset in 6 years.

We expect more votes on FISA amendments today, but doubt that the Dodd-Feingold amendment to strip retroactive immunity.

Bush Admin Continues to Show Its True Colors on FISA

Marcy Wheeler continues to have some of the most detailed analysis out there on the FISA amendments and what the Bush administration’s responses to them mean.

Recall that the administration has claimed, repeatedly, that its only goal with amending FISA is to make sure it can continue to wiretap overseas, even if that communication passed through the US. We always knew that claim was a lie, but the letter from McConnell and Mukasey finally makes that clear. Even still, they’re rebutting Feingold’s amendments–which they say “undermine significantly the core authorities” of the bill–with a bunch of misrepresentations about them, to avoid telling two basic truths (which Whitehouse and Feingold have said repeatedly, but which the Administration refuses to admit).

  • They’re spying on Americans and refuse to stop
  • They intend to keep spying on Americans even if the FISA Court tells them they’re doing so improperly

As I explained, the letter includes a list of amendments that, if they were passed, would spark a veto. Those include three Feingold amendments:

  • 3979: segregating information collected on US persons
  • 3913: prohibiting reverse targeting
  • 3915: prohibiting the use of information collected improperly

All three of these amendments share one overall purpose–the limit the way the government uses this “foreign surveillance” to spy on Americans.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Wheeler has much more in defense of Feingold’s amendments from Mukasey and McConnell’s attacks. She concludes:

We’ve been talking about this FISA stuff for almost a year now. All this time, the Administration has claimed that it was only interested in wiretapping foreign circuits that transited the US. But that’s obviously just the start of what they insist on doing with this law.

They want to be able to spy on communications between the US and other countries without having to protect US person data through minimization or adequate targeting procedures. George Bush is basically trying to legalize his illegal spying program, all with the willing assistance of the US Congress.

Read her whole post here.

Threatening Congress

Just in time for another round of FISA legislative debate, Director of National Intelligence Mike McConnell is on the Hill drumming up the threat of Al Qaeda in Pakistan.

A senior intelligence official said Tuesday evening that the testimony was based in part on new evidence that Qaeda operatives in Pakistan were training Westerners, most likely including American citizens, to carry out attacks. The official said there was no indication as yet that Al Qaeda had succeeded in getting operatives into the United States.

I can’t tell you if this threat is real or not. But I can remind you and everyone in the Senate that any time the US government wants to eavesdrop on an American, they need a court order. The FISA Court (FISC) has an approval rate of 99.9% of government surveillance requests, meaning that even if Al Qaeda is developing Americans into terrorists, the FISC is more than capable of recognizing the threat and giving our intelligence and law enforcement agencies the tools they need to monitor them.

Last August the Protect America Act was rushed through the Senate under a cloud of fear-mongering and terror threats by the White House and their top intelligence officials. Glenn Greenwald writes:

they sent out Mike McConnell days before the August recess to tell everyone in Congress that they better pass the bill before they leave or The Terrorists would kill us all and the blood would be on the hands of Congress for failing to give the President what he wanted

So Congress hastily passed the PAA, leading us to where we are now, with the Senate debating whether or not to give George Bush and Dick Cheney everything they want again. Greenwald sarcastically captures the operable Republican argument surrounding the FISA legislation and McConnell’s warnings:

We better forget about checks and balances and oversight and restraints of any kind and everything else and just make sure that the President can spy on our emails and telephone calls with no oversight, otherwise Al Qaeda is going to slaughter us in our Homeland. And we also better make sure that telecommunications corporations don’t have consequences when they break the law, otherwise we’re doomed, because Al Qaeda is coming.

The simple reality is that when we are governed by fear, we are less safe. Requests to hand over our rights and our liberties in the face of the latest threat must be met with outright distain. Americans are not prepared to live in fear, even if the Republicans are. The threat posed by Al Qaeda is not an existential one to the United States, but if we respond to it by stripping powers from co-equal branches of government, removing civil liberty protections from our citizenry, and suspending the rule of law to protect the financial interests of our largest telecom companies, then we are allowing the fundamental shape of our nation to change in the face of these terror threats.

I would hope that the Senate changes course from last August and stands tall in the face of the latest fears being hawked by the administration. No threat warrants the creation of a police state. No threat warrants the shredding of the US Constitution.

Cross posted at the CREDO Blog.

Police State

Feingold: The DNI envisions a government where, if it were technologically feasible, would listen in on every, every international phone call made by its citizens. And read every, every international email. Now that’s a police state, Mr. President, not the United States of America.

Via Emptywheel, who also has an analysis of the latest word out of the White House about which amendments would cause them to veto or what we can expect to be negated (in their eyes) by signing statement.