Emails, Fake Threats & Retroactive Immunity

Ryan Singel at Threat Level makes a key observation about the information in the Washington Post story yesterday on the potential FISA deal in Congress.

In the end, it turns out it’s all about the emails.

The fight in Congress and the big push for expanded wiretapping powers has nothing to do with intercepting foreign-to-foreign phone calls inside the United States without a court order. In fact, it turns out that the nation’s secret wiretapping court is fine with that.

That extraordinary admission came from Assistant Attorney General for National Security Kenneth Wainstein at a breakfast on Monday, according to the Washington Post.

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

That would make sense since email doesn’t go directly to a device in most cases, it goes to a server that holds the email until the recipient(s) come to pick up the email — which could be and often is from different parts of the world — think of any business traveler.

But that also means all the hysterical screaming and the dire scenarios constructed by right-wing spying proponents based on very thin evidence of what the secret court actually ruled — all of it is just wrong.

And more to the point, the Justice Department and the Office of the Director of National Intelligence allowed them to be wrong for months. They allowed and facilitated their supporters to scare freedom loving people with phantoms of lost wiretaps.

DNI Michael McConnell, the serial exaggerator who claims to be a non-political straight shooter, himself kept saying the NSA lost 70 percent of its capabilities after the ruling.

If that’s the case, that means that 70 percent of what the NSA does is collect emails inside United States telecom infrastructure and service providers.

This past Monday we saw the Computer & Communications Industry Association send a letter to Congress, stating their strong opposition to retroactive immunity. The CCIA is a trade group that consists of technology telecoms like Google, Yahoo, Microsoft, and Sun Microsystems. They are companies that collect a great deal of information about their users. Google, Yahoo, and Microsoft are three of the biggest, if not the biggest, providers of free email services. If Wainstein, the Assistant Attorney General for National Security, is saying this is all about email, then what the CCIA has to say about the issue is highly relevant.

Wainstein’s statement also blows up the false notion that the concerns regarding FISA have to do with how the government’s surveillance of foreign-to-foreign phone calls. Kurt Opsahl of the EFF writes:

In short, Wainstein said that the current interpretation of FISA does not impede the interception of foreign-to-foreign telephone calls – even after the secret FISA court ruling that McConnell claims required the change in the law. Indeed, it does not impede the interception of foreign-to-foreign emails, VOIP calls or other communications, so long as you know both ends are foreign.

Opsahl goes on to note that this sort of development is exactly why making public policy when a significant portion of the facts are secret is such a bad idea. I’d add that this is even more true when it comes to making decisions about abandoning the rule of law.

In my eyes, the revelations from Wainstein show the lack of urgency for granting retroactive immunity and passing new surveillance laws. The fear-mongering scenarios pushed by President Bush and his Republican cohort are not connected to any real scenario threatening our intelligence community’s collection abilities. This cuts against the need to grant the executive branch even more surveillance power, while reducing the oversight capacities of the legislative and judicial branches. It is also clear that immunity for the phone companies that partnered with the Bush administration to spy on Americans without warrant is even less necessary as a precondition for moving forward and confronting the challenges facing our intelligence community.

***

Cross posted at the CREDO Action Blog.

Dodd on Cuba

Senator Dodd has an op-ed in the Miami Herald today on US-Cuba policy. Of note, Dodd lays out a vision for steps the US government could take to hasten the democratization of Cuba.

We should:

  • Act decisively to end trade sanctions. This means repealing the ill-conceived Helms-Burton and Cuba Democracy Acts, as well as amending the Trade Sanctions Reform Act. With the embargo lifted, our businesses will have access to Cuban markets, our struggling farmers will find more buyers for their crops, and Cuba will gain extensive exposure to American culture.
  • Break down the artificial barriers keeping Cuban Americans apart from their families in Cuba. Lifting caps on remittances and travel restrictions will speed the influx of democratic values — and reduce an unnecessary hardship on Americans who want merely to assist their families overseas. Currently, the mail doesn’t even travel regularly between the United States and Cuba, let alone passengers. As we lift travel restrictions, we should also begin negotiating regularly scheduled flights.
  • Open an American embassy in Havana. If we want any influence over Cuba during this crucial time, we must practice robust diplomacy.There’s no better way to do that than having skilled diplomats pressing our interests in Havana, at all times and in person.

Ending sanctions, connecting families and strengthening diplomacy — this new policy of Cuban engagement is the most constructive response to Castro’s demise. Some in the Bush administration might call such a policy ”soft” — but that represents the same mind-set that thought we could bomb our way to democracy in the Middle East.

For far too long, American isolation has cemented a Cuban dictatorship. Today, that dictatorship may finally be starting to crack; how we seize this opportunity will determine whether it crumbles.

Patrick Doherty of The Havana Note writes:

The real question is whether one of the candidates for president will pick up on Sen. Dodd’s argument that the U.S. embargo is really the backbone of the Castro regime. Simply removing that crutch, he argues, will do more to advance U.S. interests than just about anything else. If that’s the case, any candidate in favor of sustaining the embargo, even conditioning U.S. policy on democratic change on the island, is really just being played by Havana.

I think this is right. Dodd put forward the most ground-changing vision for US-Cuba policy during the presidential campaign. He’s continuing to offer the clearest vision for how we must proceed. I hope Senators Obama and Clinton embrace Dodd’s stance on Cuba. It would be a welcome contrast to John W. McCain’s continued love for a policy that has been a failure for 50 years.

McSame As Bush

The Campaign to Defend America, a 501(c)4 that will be doing a whole lot of work against John W. McCain this cycle, has released their first ad.

Greg Sargent at TPM Election Central reports:

The Campaign to Defend America — which will be running ads on issues like Iraq, the economy, energy, and health care, from a bent that appears to be pro-Democratic — is spending more than $1,000,000 on the buy, the group tells me.

This is great.  The Campaign to Defend America is staffed by some incredibly talented Democratic operatives. I’m sure their ads will be more creative and more pointed as the campaign progresses (no need to go overboard with their first ad).

I’d hope that the independent expenditures working against McCain recognize that the best course of action is to hit him as hard as possible. This ad is a good start, but I hope it will represent the baseline for how aggressive the Campaign will be when criticizing McCain and tying him to Bush.

Bjork Calls for Tibetan Independence at Concert in China

Lhadon at Beijing Wide Open reports:

Bjork took a stand for Tibetan independence at a concert in Shanghai on Sunday. Following what the BBC described as a “powerful performance” of her song, Declare Independence, Bjork yelled “Tibet, Tibet” and “Raise your flag” repeatedly from the stage. She did the same thing but for Kosovo at a concert in Tokyo last week and was promptly dropped from the lineup of a summer festival in Serbia.

Not surprisingly, may Chinese are not happy with Bjork for taking this stand and some had very harsh words for her. The Associated Press is reporting one concert-goer as saying that after her remarks the atmosphere in the venue was “very strange, uncomfortable compared to the rest of the concert.”

Here’s a video of the concert:

The Tibetan flag is banned in Tibet. Possessing it or displaying it is punishable with years in jail. No question about it, Bjork was calling for Tibetan independence and political resistance to China’s military occupation of Tibet.

Looking Forward At the Democratic Nomination

It’s the morning after Whatever People Finally Decided To Call It Tuesday. As the polls consistently showed going in, Clinton won Ohio, withstanding late tightening. She also won the Texas popular vote; though many polls showed Obama taking a small lead, it was (as far as I recall seeing) always within the margin of error. Unfortunately for the Clinton fans, while the delegate count is still ongoing, it looks highly unlikely that Clinton will make any noticeable inroads into Obama’s current delegate lead.

Chris Bowers’ run-down of the results, what they mean, and what we should expect moving forward is a sober account of where we stand.

Looks like Clinton will net about 10-15 delegates tonight, along with about 250,000 popular votes. Overall, Obama will now lead by about 600,000 votes, and 145-150 pledged delegates. Toss in superdelegates, and Obama’s lead cut to about 100-110 delegates. Add in Florida, and Obama leads by about 300,000 votes, and about 65-70 delegates. Throw in a Michigan delegate with zero votes for Obama, and Clinton takes an infinitesimal lead in both counts.
This is why Obama is still the favorite. In order to even force a virtual tie, Clinton needs three contingencies to break her way. Obama, by contrast, will probably wipe out Clinton’s March 4th delegate gains in Wyoming (March 8th) and Mississippi (March 11th), leaving the pledged delegate margin heading into Pennsylvania identical to the margin before yesterday’s contests. However, overall March will still be a victory for Obama, as he continues to cut into Clinton’s superdelegate lead. Rumors are that many more are on the way, too. Overall, despite her wins tonight, at the end of March, Clinton will probably be further behind in delegates than at the start of the month.

I also think Bowers is right in the expectation that the two campaigns will increasingly get nasty with each other. We saw the rhetoric and the attacks heat up over the last two weeks. If that’s a preview of coming attractions, then the next seven weeks are going to be very uncomfortable.

I heartily agree with both Steve Soto’s take on what he’d like to see Hillary Clinton doing as the campaign moves forward with regard to shifting attention to John McCain and Big Tent Democrat’s recognition that the best case scenario is one where both candidates follow Soto’s suggestion.

I believe Steve Soto is on to something when he writes:

What if [Hillary Clinton] instead starts attacking McCain and making the case that she is better able to run as a true Democrat against McCain’s strengths and weaknesses than Obama can? What if she draws the contrast with Obama not with personal or character attacks, but with direct arguments that she is a better advocate for progressive causes and concerns against McCain on issues such as the economy, health care, protecting Social Security, tax fairness, the Supreme Court, energy independence, and the environment? In other words, what if she runs more as a Democrat than he does?

I think Steve’s advice is sound, but not just for Clinton, but for Obama as well. Let’s let the candidates demonstrate who the best candidate to run against McCain is BY RUNNING AGAINST JOHN McCAIN AND THE GOP NOW! Don’t just tell us you would be better against McCain and the Republican Party. Show us!

If I’m stuck with a contest race, despite a current set of rules and delegate math that make it highly unlikely that Clinton can secure a nomination before the Democratic Convention, I’d hope that the candidates recognize that they have the opportunity to prove their general election mettle against John W. McCain now. He’s the target for either nominee and the more energy we can put behind legitimizing attack narratives now – he’s a 3rd Bush term in waiting, he’s beholden to lobbyists, he would take us to war with Iran – the easier it will be for our eventual nominee to fight McCain, uncrippled by a prolonged nomination.

The only way I see us avoiding what Bowers thinks will happen between now and Pennsylvania – and realistically the Soto-BTD vision for attacking McCain is something of a pipe dream when the nomination is still up for grabs – is if the nomination is resolved in the short term. Marc Ambinder notes that “Barack Obama will almost certainly win more delegates in Texas than Clinton.” Couple that with the long delegate math and the contingencies identified by Bowers, and Clinton has very slim chances at the nomination. One thing that repeatedly has been coming up in news coverage of the race is the question of how Clinton staffers are thinking about their chances of winning. Ambinder writes:

Again, a Clinton “recovery” and nomination is not impossible. It just isn’t likely. In the gut of many Clinton advisers 48 hours from now may be the sense that the confetti is ephemeral.

If that happens, if upon reflection and sober strategizing the odds are seen as too long, the contingencies that have to happen too many, it’s possible that senior Clinton staff and advisers will turn against the notion of continuing to fight for the nomination. In that case, we might be able to avoid what at minimum could be a seven week version of Andy Capp vs Florrie Capp tumult of dust and fisticuffs (and at maximum, a fight that extends to the Convention floor in early September).

I don’t have a dog in this fight and, right now at least, I don’t want to make any normative judgments about what either candidate should be doing. As I said above, I’d love to see both focus on attacking McCain and not each other, but that’s wishful thinking. I’ll be curious to see the final vote totals and how yesterday actually impacted the state of the race.

We Are the Progressive Pushback We’ve Been Waiting For

Eric Boehlert of Media Matters has a great piece about how progressive blogs, lead by FireDogLake, orchestrated a massive push back on an Associated Press story by Nedra Pickler of Republican smear attacks on Barack Obama.

What prompted the organized outpouring of angst last week against the AP was when the website Firedoglake took action, embraced a new organizing tool, tapped into a wellspring of enthusiasm for Obama, and pointed angry readers not in the direction of the AP itself, but toward their local newspaper clients. Why? Because newspapers are more responsive to complaints filed by nearby readers, and because the newspapers pay the AP’s bills as newswire customers.

The riddle, though, was how to help readers contact hundreds of individual newspapers nationwide. “It’s like trying to wrestle an octopus,” says Jane Hamsher, founder of FDL. The solution centered on customizing a software tool that allowed online activists to effortlessly contact their local daily. The tool FDL modified was created by the online communications firm Blue State Digital. Readers simply entered their ZIP code into an on-screen box. The next screen displayed the local newspaper (or newspapers) in their region to be contacted and asked readers to enter their name and other personal information to be sent to the newspaper. The screen provided readers with pre-approved text (i.e., “I hope that in the future we can expect reporting that focuses on the candidate’s positions rather than trying to call into question how much they love the country they tirelessly serve.”)

If they wanted to, though, readers could personalize, or create, the letter themselves. Approximately half the letter writers in the FDL campaign wrote their own text. With the third click, the reader’s letter was sent to the newspaper.

FDL’s call to action was posted February 25 and was quickly trumpeted by fellow bloggers, who urged their readers to participate.

The results, according to FDL, as of March 3: 14,252, letters sent to 649 different newspapers located in all 50 states, and from 1,735 ZIP codes. That included more than 1,500 letters to The New York Times, 1,400 to both USA Today and The Washington Post — not to mention 52 to The Denver Post and 21 to the Florida Times-Union.

Why the overwhelming reaction from a single newspaper article? “It was such a clear example of something getting picked up from the right-wing attack machine and laundered into the mainstream press,” Hamsher told me, referring to the Pickler article. “It was the perfect storm because it was right at the time when we were ready to roll out the [organizing] tool. She just picked the wrong day to write that story. And the wrong target, because there is all this enthusiasm for Obama, and people wanting to get involved.”

It was the fervent Obama supporters from the diary section at the top-rated liberal website DailyKos who really made the project a success, says Hamsher. Tapping into the energy of the Obama fan base was a key goal of the letter-writing campaign. “All of a sudden you have all of this passion from people who are new to the political process. If we can put them to work and help educate them about the nature of the right-wing attack machine and use their energy, and channel it into tools, we can really make life difficult” for journalists who fail to maintain accepted standards, says Hamsher. “This is what actually got me into blogging; the potential to find a way to pull this kind of thing off.”

As a progressive movementarian who sees internet politics as the most promising avenue for renewing civic engagement for bettering America, I see this as a great sign of things to come. This is how the netroots – and hopefully soon more people who might not identify directly with the online progressive base – can stop bad media narratives, shoddy reporting, and smear attacks from the right on Democratic candidates, from President on down.

We all know that we will see many, many, many more pieces like Pickler’s whether our nominee is Obama or Clinton. The subject doesn’t matter, we know the attacks and the shoddy journalism will come. But if we have the ability to marshal tens of thousands of emails in response to bad reporting and target them directly at the outlets that run them, we can make editors at papers around the country think twice about taking conservative attack memes and portray them as news worthy of gracing anything other than the Letters to the Editor section.

It’s not as if Democratic campaigns don’t try to kill bad stories when they come out. I have no doubt that Obama’s press staff was simultaneously pushing back on Pickler and her editors. But that’s their job and these reporters and editors have working relationships with campaign press flacks. Democratic communications operatives have been working against hostile press reports for years and, generally speaking, a Democrat telling a reporter that their Republican attack narrative sucks and needs to be changed doesn’t shake the world, let alone the way the reporter and her editors will think about how they write their next piece.

But 15,000 letters to the editor of hundreds of media outlets is a different story. It’s a story that must be replicated as often as necessary throughout this campaign, because you will never change how reporters think based on one story alone. We need to be prepared to push back on the press whenever necessary, and Jane Hamsher and FireDogLake have provided us with the means and the model to do just that.

Huge Texas Turnout

Via Markos, First Read reports:

An Obama source emails First Read that the campaign is expecting turnout between 3.6 to 3.8 million in the Texas Democratic primary.

Consider that John Kerry received 2.8 million votes in the Lone Star State in the 2004 general election.

“That’s a lot of ‘new’ Democratic voters,” the Obama source says. “Will be great for Texas Dem Party that’s working to rebuild and only needs to pick up four seats to take back the state house.”

Now, from the looks of things the popular vote in Texas is going to be very close, so these humongous numbers are a credit to both Democratic campaigns.

In 2004, Kerry received 2.8 million votes (38%) while Bush received 4.5 million votes (61%) in Texas. Unless the new million are all former Bush voters, adding one million Democratic voters probably wouldn’t result in a Democratic win of the state. But it will certainly make it close and it will likely force McCain to spend far more money on turning out the Republican vote in Texas than any Republican would like to spend. That is, one million new Texas Democratic voters ought to scare McCain immensely, as it is a big sign that Democrats will be able to challenge for the reddest of red states.

More Signs of Capitulation on FISA

Another day, another article pointing towards Democratic capitulation on FISA. The Washington Post reports:

Some aides on Capitol Hill were discussing the potential for the House passing the Senate version but breaking it into two votes: one on the portion of the bill that deals with revising FISA provisions and a second on the immunity measure.

This procedural move would allow many Democrats to vote against immunity but still make its approval all but certain since almost every Republican and some centrist Democrats would vote in favor.

I’d hope no one in the Democratic caucus is counting on people who’ve fought long and hard against retroactive immunity to be fooled by a “no” vote on a free standing retroactive immunity measure. The existence of such a vote would be indication enough that the Democrats in Congress failed to defend the rule of law, despite over six months of promises that they would oppose Bush and Cheney on immunity.

Kagro X describes the “compromise” well:

It’s not the White House compromising on the substance of the bill with Congress. It’s the Congress compromising with itself on the procedure by which they’ll hand the White House exactly the substance it demands. One vote or two? It’s your choice! See? Compromise!

The failure of Democrats in the House, at this point presumably the Democratic leadership that is seeking a compromise, to recognize the line in the sand they were supposed to not cross is truly astonishing. You would think that by having watched the Senate Democrats get divided and rolled into voting on and passing the Rockefeller-Bush-Cheney Intel Committee bill that included little oversight and retroactive immunity, the House leadership would know what doesn’t work in this legislative process. Remarkably, like Harry Reid before them, the House leadership is preparing to set a legislative agenda that guarantees that retroactive immunity will pass and executive authority to conduct surveillance of the American public without congressional or judicial oversight will have been expanded.

I’m squarely with Digby on how I will be thinking about the Democrats who are helping the Constitution continue to be shredded by the Bush administration.

The Democrats believe they can fool the stupid rubes they represent by saying they aren’t culpable in this debacle because they voted against it! Yea! And we’re so stupid we’ll absolve them because we won’t figure out that the whole thing was rigged.

Digby also hits on a point that I was making earlier today, namely that regardless of what is likely to happen in the next administration, expansive executive powers to spy on the citizenry should always be opposed.

But this was a principle worth fighting for no matter what. No president, Democrat or Republican, should be trusted with this kind of power. And even if you believe that no wonderful Democratic Prez could ever be so bad, what if John McCain wins? Does anyone seriously think he won’t use it?

It seems that political expedience is winning out over principle in the halls of Congress.

It’s important that the Post article is continuing to rely on aides as sources for a yet-to-be-finalized “compromise.” No deal is final, even if the trend is bad. That means we need to continue to put pressure on our representatives in Congress to oppose retroactive immunity and any “compromise” that sets the table for retroactive immunity to pass. Contact your Representative through CREDO Action and tell them to oppose retroactive immunity.

***

Cross posted at the CREDO Action Blog.

Unlimited Executive Powers Should Bite Executives in the Ass

Speaking of the Bush administration’s continued expansion of executive powers that impinge on the possibility for legislative or judicial oversight, Atrios writes:

To the extent that this is about his successor, my guess is that they figure that Congress will rediscover its interest in oversight and objections to presidential executive power overreach. The very powers Bush claimed will, for a Democratic president, be the foundation for impeachment. They aren’t just masters of hypocrisy, they’re masters of “distinctions without differences.” That is, when President ClintonObama does it, it’s somehow different when President BushMcCain does it. Don’t worry, Cliff May will explain it to Wolf Blitzer and Pete Hoekstra will explain it to Joe Klein and it’ll all make sense.

I think this is about right.  A Democratic President will immediately be subject to a different set of rules, both by Congress and by the media, than the Bush administration has lived by. It wouldn’t shock me if the 250 odd Republicans in Congress suddenly discovered a copy of the US Constitution and became card-carrying members of the ACLU, going on a rampage to defend our civil liberties. Of course the press would eat it up and suddenly the rule of law will become Important.

I’d expect a President Obama, Clinton, or even McCain to be more competent than the Bush administration at using executive powers. For example, they’d be sure the FBI payed their bills on time so our oh-so patriotic phone companies will keep our wiretaps up.

But the problem with an environment where the rule of law suddenly matters to the Republican opposition and the press is that the rule of law should matter to these people, just as it matters to the Democrats in Congress now. A President Clinton or Obama should not be seeking expansive executive branch powers to conduct surveillance on the American public without oversight from the legislature or the judiciary. They should not publicly and persistently choose to break the law and conduct domestic surveillance outside of FISA. They should not torture or render or use secret prisons in third world countries. And if they do these things, a Democratic President, just like President Bush or a President McCain, should be subject to strong opposition by Congress and public scrutiny and criticism by the press.

Senator Dodd has often said on the floor of the Senate that he would be just as vociferous in his opposition to retroactive immunity and warrantless wiretapping if it was a Democrat in the White House. I believe him and I would put myself squarely in that camp.

Just because it would be politically inconvenient if a Democratic President was perpetrating these crimes doesn’t make them any more or less legal than when President Bush perpetrates them.

Bush’s Legacy

Betsy, writing at T.Rex’s pad, asks:

Just heard a radio show in which the host suggested that Bush be forced to wear a sign proclaiming that he’s a failure who ruined the country. I was thinking more along the lines of a dunce cap, but I think a neon t-shirt with a saying might be a good idea.

What should the shirt say? STUPID AND EVIL? STOLE THE CONSTITUTION? Y’all are more creative than I am. Start designing the shirt, or the writing on the back of the orange jump suit. Your choice.

I think a t-shirt saying,  “Someday I hope to get my approval back up in Joseph Stalin’s range”  would capture the scale of how unpopular and horrendous the Bush administration has been.

Bush recently received 19% approval rating in a poll. Polls in the last few years have shown Stalin to have a positive approval 36% of Russians or more. So, Bush has a ways to go.