New Possible FISA Deal in House

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.

Tibet, Tibet! Raise Your Flag

Last week, Bjork spoke out for Tibetan independence at a concert in China. She ended her song “Declare Independence” by shouting “Tibet, Tibet! Raise your flag!” Well, the message got out. This video was shot yesterday in Toronto at a protest at the Chinese consulate in commemoration of the 49th anniversary of the Tibetan National Uprising. The Students for a Free Tibet Canada blog reports:

Towards the middle of the protest in front of the Chinese Consulate Building, a couple of youth snuck behind the walls and managed to get to the rooftop of the building. The boys, one of them of minor age, then proceeded to bring the flag of China down from the pole, and hang the Tibetan flag in its place. This spontaneous action further fueled the energy of the protesters below, as they cheered and applauded the youth for symbolically undermining China’s authority over its own building, and in effect, over Tibet. The boys didn’t manage to completely raise the Tibetan flag, but their inspiring and courageous act of dissent enraptured the emotions of the protesters, many of whom held their breath when the two youth were eventually detained by the Consulate officials. No visible damage of property was inflicted on the building, save for a roughed up Chinese flag, and the youth were compliant with the Chinese consulate officials who stopped the action and detained the two.

The protesters were very worried about the welfare of the two youth and demanded that they be released from the Chinese Consulate building. Some of the marchers who were close to the youth were visibly agitated and were told to calm down by the organizers lest they jeopardize the situation of the two detained. Eventually, the police in the area informed the organizers that the boys wouldn’t be released unless the protesters disbanded and vacated the street and surrounding area. At the urge of the various organizers, the marchers began to stow away the flags and placards and call it a day. At the conclusion of the rally, when most of the protesters had left, the police informed the waiting organizers that the two youth will have to be investigated by the Royal Canadian Mounted Police (RCMP) because “the two had violated the laws on international soil, and hence, the Toronto police had no authority on the matter, and it will be left up to the RCMP to investigate and carry out further actions.” At the time of this reporting, the boys are still under investigation by the RCMP, and are being charged, the details of which are not available at the moment.

I’ve since heard that the two youths were released by the RCMP.

This is an inspiring act of non-violent protest that speaks to the undying will of Tibetan refugees and exiles to restore their independence. It was a spontaneous protest on a day when around a thousand Tibetans and their supporters marched in Toronto on the Chinese consulate. Right now, this video is circulating the Tibetan exile community and bringing tears to the eyes of many viewers at the proud patriotism of these young Tibetans.

Boing Boing Interviews Mark Klein

http://p.castfire.com/Xu7m0/video/8571/bbtv_2008-03-07-221948.flv

Xeni Jardin of Boing Boing interviews AT&T whistleblower Mark Klein and the Electronic Frontier Foundation’s Cindy Cohn. In the interview, Klein mentions that only Chris Dodd has presented his story before Congress, and according to Klein, “[Dodd] got run over by his own party leadership who seems determined to do the work of the NSA and pass immunity for the phone companies.”

It’s remarkable how angry and cynical Klein is in this interview. When I interviewed him last fall for the Dodd campaign, he was soft-spoken and even-keeled. In this interview, it’s clear that Klein is disillusioned at the political process and the Democrats who have done absolutely nothing with his case of blatantly illegal actions by the NSA and AT&T. Honestly, I can understand his outrage and it’s a testament to his patriotism. It is truly shameful that his story has not become a test case for rolling back the executive powers seized by the Bush administration and using this massive violation of the 4th amendment of almost every American as grounds for impeachment.

Ironically, the BoingBoing video is sponsored by Verizon. A better sponsorship notice is that Credo Action, who I consult for on FISA, helps fund the EFF.

WSJ on NSA

Another day, another major article documenting unprecedented domestic surveillance operations by an organization that has no mandate for operating on US soil. Today’s Wall Street Journal article by Siobhan Gorman goes into great detail on what the NSA has been doing under the Bush administration and how it has partnered with other federal agencies to access massive amounts of information and data of Americans, including financial records, phone calls, emails, and text messages.

Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans’ privacy, even after the Sept. 11 terrorist attacks.

But the data-sifting effort didn’t disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.

The central role the NSA has come to occupy in domestic intelligence gathering has never been publicly disclosed. But an inquiry reveals that its efforts have evolved to reach more broadly into data about people’s communications, travel and finances in the U.S. than the domestic surveillance programs brought to light since the 2001 terrorist attacks.

…

The political debate over the telecom information comes as intelligence agencies seek to change traditional definitions of how to balance privacy rights against investigative needs. Donald Kerr, the deputy director of national intelligence, told a conference of intelligence officials in October that the government needs new rules. Since many people routinely post details of their lives on social-networking sites such as MySpace, he said, their identity shouldn’t need the same protection as in the past. Instead, only their “essential privacy,” or “what they would wish to protect about their lives and affairs,” should be veiled, he said, without providing examples.

The NSA uses its own high-powered version of social-network analysis to search for possible new patterns and links to terrorism. The Pentagon’s experimental Total Information Awareness program, later renamed Terrorism Information Awareness, was an early research effort on the same concept, designed to bring together and analyze as much and as many varied kinds of data as possible. Congress eliminated funding for the program in 2003 before it began operating. But it permitted some of the research to continue and TIA technology to be used for foreign surveillance.

Some of it was shifted to the NSA — which also is funded by the Pentagon — and put in the so-called black budget, where it would receive less scrutiny and bolster other data-sifting efforts, current and former intelligence officials said. “When it got taken apart, it didn’t get thrown away,” says a former top government official familiar with the TIA program.

Two current officials also said the NSA’s current combination of programs now largely mirrors the former TIA project. But the NSA offers less privacy protection. TIA developers researched ways to limit the use of the system for broad searches of individuals’ data, such as requiring intelligence officers to get leads from other sources first. The NSA effort lacks those controls, as well as controls that it developed in the 1990s for an earlier data-sweeping attempt.

Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence Committee who led the charge to kill TIA, says “the administration is trying to bring as much of the philosophy of operation Total Information Awareness as it can into the programs they’re using today.” The issue has been overshadowed by the fight over telecoms’ immunity, he said. “There’s not been as much discussion in the Congress as there ought to be.”

Congress killed TIA because it wasn’t something they wanted the US government to be doing to their citizens. So the Bush administration moved it to the NSA’s black budget and further reduced the privacy protections on the program. Is there any greater example of the Bush administration’s complete disrespect for the legislative branch and the civil liberties of American citizens? Just when you think you’ve seen everything the Bush administration has done to make America less free, they show you new ways they’ve found to roll back our freedoms and our rights.

Quite simply, the Bush administration hates Americans for our freedoms. So they’re taking away our freedoms and presuming that innocent Americans are or will be terrorists.

Damn it, I want my country back.

M10 Coverage

The BBC has a good article about the global actions taken place on Tibetan National Uprising Day. It does a good job of showing the global scale of the commemoration.

Also, the Dalai Lama’s annual statement on March 10th is very powerful and hard-hitting. One passage that stood out:

In Tibet today, due to the Chinese governments numerous actions, driven as they are by a lack of foresight, the natural environment has been severely damaged. And, as a result of their policy of population transfer the non-Tibetan population has increased many times, reducing native Tibetans to an insignificant minority in their own country. Moreover, the language, customs and traditions of Tibet, which reflect the true nature and identity of the Tibetan people are gradually fading away. As a consequence, Tibetans are increasingly being assimilated into the larger Chinese population. In Tibet, repression continues to increase with numerous, unimaginable and gross violations of human rights, denial of religious freedom and the politicisation of religious issues. All these take place as a result of the Chinese governments lack of respect for the Tibetan people. These are major obstacles the Chinese government deliberately puts in the way of its policy of unifying nationalities which discriminate between the Tibetan and Chinese peoples. Therefore, I urge the Chinese government to bring an immediate halt to such policies.

The Netroots

Chris Bowers at Open Left writes about what the netroots is and is not.

Jerome Armstrong (emphasis in orginal):

Now, I thought the 2003-2006 netroots was all about the ‘fighting dems’ that invigorated the Democratic Party with a strong sense of partisanship and Howard Dean’s “Democratic Wing of the Democratic Party” candidacy.

The “netroots” is not about one thing. Never was, never could be. Lacking in centralized leadership and with millions of participants, there were always going to be competing motives and goals. To even attempt to define it as one single thing is to speak for huge swaths of its participants about which we know little.

I have a lot of problems with the term “netroots,” stemming mostly from the way it used in alternatively expansive and contained ways to represent different constituencies.

I was at the Left Out in the Open panel last week, hosted by The Nation and MoveOn. The panel included Matt Stoller, Ari Melber, Zephyr Teachout, Katrina vanden Heuvel, and Roberto Lovato. It focused primarily on defining the netroots and its capacities for effecting progressive change. What was immediately apparent is that each panelist had a different conception of what the term “netroots” meant. Also brought up were the sometimes overlapping blackroots, brownroots, and feminist blogospheres. The absence of an understanding of the netroots as large, inclusive collection as described by Bowers, lead to some panelists decrying the failures of a smaller, white, Democratic-oriented collection of including other people and issues.

The netroots, as a term, is something of a failure. It is often taken in a circumscribed way that refers to A-list, largely white, largely male, bloggers. But that’s a narrow view that makes it easier to attack. To that end, using a vague term with an even more vague definition is problematic.

In my view, again which I think is shared by Bowers, what is generally described as the netroots is really better described as the online progressive movement. In my eyes that would include all bloggers of varying prominence, commenters, diarists, blog readers, advocacy groups like MoveOn, Credo Action, Color of Change, Avaaz, EFF, and others, progressive politicians’ campaigns, and even, at times, elected officials like Russ Feingold, Rush Holt, Chris Dodd, and others. As a movement, different coalitions will form and disband within its boundaries. It will manifest itself in different constituencies in different ways. The commonalities are progressive individuals and organizations are building social connections and communicating online. The online progressive movement can be many things. There may be louder or quieter voices, but people operate in the same general direction: progressive change.

Now, I agree with Jerome that there is a common conception of the netroots as being a vessel for Democratic success. But that only works as a term as long as we subsume it under the mantle of the online progressive movement. Then we can shift attention from a the quality or nature of the term “netroots” and towards a broad movement that includes many factions working in different directions. Under the banner of a movement, there is little need to explicitly limit its particular purposes or constituencies.

Yale University Helps Fund $5.4b for Chinese Railroad

Earlier today the Chinese Railway Construction Corporation held two initial public offerings, in Hong Kong and Shanghai, and raised over $5.4 billion to fund construction projects. Yale University contributed $50 million from their endowment as one of the nine “cornerstone investors” in the IPO.

China Railway Construction Corporation is a state owned company that is responsible for building a controversial railroad between Tibet and Beijing. The Lhasa-Beijing railroad was subject to major opposition by Tibetan exile and human rights groups, as it has been used as a major funnel to bring Chinese migrants into Tibet, part of a continuation of China’s policy of population transfer to dilute the percentage of Tibetans in their own land. The CRCC is currently planning an extension to create another major link between Lhasa, Tibet’s capital, and China, a move that will further increase the population transfer into Tibet. The other major beneficiary of the Lhasa-Beijing railroad, incidentally, has been the People’s Liberation Army. The PLA has more troops stationed in Tibet than any other region in the PRC.

Yale’s investment in the CRCC is deeply troubling. They are doing so in contravention to common investment practices at educational institutions. Two years ago, Yale divested from their investments in Sudan, which shows that they’re not immune from pressure from human rights groups and are capable of using their huge endowment to do morally responsible things.

I know some Yale alumni are up in arms about this investment and I’m sure as the news of it grows, students and alumni will continue to let the University know what they think about their donations being used to fund a Chinese companies expansion in Tibet. The sad thing is that because Yale was involved in the IPO, their $50 million has gone directly to the Chinese government’s railway company. Divestment is crucial, but as I understand it, that’s money that Yale can’t get back.

It’s also interesting to note that Yale’s partnership in this IPO was only announced in late February, giving students and human rights groups very little time to organize against it. At the time, the Yale Investments Office declined to comment on the move to the Yale Daily News. I think that this stems from lessons learned by China about how to handle IPOs, knowing their American partners will face withering public criticism for getting in bed with businesses that exploit Tibet or hasten the cultural genocide of the Tibetan people. In 2000, the PetroChina IPO had its value reduced by $7.2 billion following a prolonged campaign by Tibetan groups, labor unions, and human rights organizations against the company. In 2004 BP divested from PetroChina, again following intense pressure from Tibetan groups like Students for a Free Tibet. The best way to avoid such pressure, judging by how Yale and the Chinese Railway Construction Corp. handled this IPO, is to announce it only days before it takes place to avoid scrutiny and response from the constituencies affected by it.

For more on the China-Tibet railway and what Tibetan groups have done to protest it over the last number of years, visit Students for a Free Tibet’s campaign site.

China Continues To Repress Dissidents

This story in yesterday’s New York Times shows how China continues to ramp up pressure on dissidents, activists, writers, and bloggers in advance of the 2008 Beijing Olympics.

Beijing public security agents released a Chinese human rights lawyer on Saturday after detaining him two days earlier without notice and forcing him to endure intensive questioning at an unknown location, the lawyer said.

The lawyer, Teng Biao, 34, said he was released after 41 hours in custody. Mr. Teng, reached by telephone, said four officers from the Beijing Public Security Bureau grabbed him on Thursday night at a parking lot outside his apartment and then drove him away.

Mr. Teng, who is also a part-time college professor, said he was not sure where he was taken. He said that he was not physically harmed but that officers had questioned him sternly and warned him about recent articles he had posted on the Internet.

Mr. Teng refused to discuss his detention further, saying the officers had cautioned him against speaking out.

Chinese police kidnapped a lawyer whose only crime was writing articles that were critical of the Chinese government. They question him for almost two days straight and intimidate him with threats against speaking out any more. Here’s a taste of Teng’s dissident writings that lead to his kidnapping by Chinese police:

In the essay by Mr. Teng and Mr. Hu [a dissident facing trial for thought crimes like the one below] last year, the two wrote bluntly about China’s current situation.

“Is China improving its human rights record?” they asked, according to a translation provided by Human Rights Watch, an advocacy group. “When you come to the Olympic Games in Beijing, you will see skyscrapers, spacious streets, modern stadiums and enthusiastic people. Please be aware that the Olympic Games will be held in a country where there are no elections, no freedom of religion, no independent courts, no independent trade unions; where demonstrations and strikes are prohibited.”

China promised to improve their human rights record and increase freedoms of speech as a condition of hosting the Olympic Games. Yet despite consistent, mounting evidence of widespread crackdown on dissidents, journalists, and bloggers, the IOC has refused to respond. This is truly shameful and a reminder that the People’s Republic of China is not a free country, but one of the most brutal, repressive, anti-democratic places in the world.

M10 Live

Today is March 10th, the anniversary of Tibetan National Uprising. Around the world Tibetans and their supporters are commemorating 49th anniversary of the uprising of tens of thousands of Tibetans against China’s illegal military occupation of Tibet. That uprising created an opening that allowed the Dalai Lama to flee into exile.  March10.org describes the situation:

Despite China’s best attempts to destroy the Tibetan spirit, Tibetan resistance has continued for nearly half a century inside Tibet and in exile communities worldwide.

This year, with all eyes focused on the Olympics in China, Tibetans and supporters worldwide are protesting the Chinese government’s use of the Olympics as a political tool to legitimize its illegal occupation of Tibet.

Join the Global Uprising for Tibet! Help us draw attention to the worsening human rights situation inside Tibet. Help us use the Olympics spotlight to shame and embarrass the Chinese government and show them that until Tibet is free, China will never be never be accepted as a leader on the world stage.

In addition to organizing demonstrations and marches today in honor of Tibetan Uprising Day, Students for a Free Tibet has assembled some incredibly cool technology to cover today’s events. They have set up M10 Live – a page that has live streaming video piped in from Olympia, Greece, India, New York, and more, all playing through an embedded Mogulus channel. Additionally, they’re posting photos, text messages, and audio reports that are being submitted from around the world by people in attendance at their marches. Cell phone pictures and videos are being combined with live streams to give people a full range of information coming in from around the world. They’ve also posted a Google map with locations of protests and marches around the world.

Right now I’m watching a stream from Dharamsala, India, where a group of Tibetan exiles and refugees are starting a return match to Tibet. They will walk through India and return to Tibet for the first time since they were forced into exile. The marchers will be documenting their trip, using cell phones, wifi, laptops, and other cool tech tools to provide an inside view of their trip.

I’ll have updates later today.