The Post FISA Amendment Act Action Begins: ACLU Fires The First Salvo – A Working Thread

As all know by now, July 9, 2008 was a day that will live in infamy. It seems stark to use that historic phrase, but to a lot of us, it really feels that way. The video attached to this post has been so attached to several now, and is of Professor Jonathan Turley on Countdown with Rachel Maddow explaining the gut shot to the Fourth Amendment the FISA Amendment Act constitutes. Turley is exactly right, and as most here know, that is precisely what I have been saying is the real danger of this act for a long, long time.

The foregoing you all know. What many have been asking, and rightfully so, is where do we go from here. You have all dedicated so much passion, time, and effort to the cause of fighting this damnable act of Congress. Cold turkey leaves a void. Well, the next phase is just beginning. There is the Strange Bedfellows fund that can always use your love; and as Jane and Howie have advised, there has been some positive love given to some of the Democrats that actually stood tall for us. And on August 8, there will be a MoneyBombing.

But, by far, the biggest news you need to know about is the activity today by the ACLU. The ACLU has made two filings in response to the passage and signing of the FISA Amendments Act (FAA). The first is a new complaint(attn: large pdf) filed in the Southern District of New York (SDNY). The action is captioned Amnesty International USA et al. v. John M. McConnell et al.; there are several plaintiffs you will recognize, and DNI Mike McConnell, NSA Director Keith Alexander and Mukasey as defendants. The action is for declaratory judgment/injunctive relief which, I will be honest, is not the favorite form of action that Federal courts consider. This is similar to the tact taken in ACLU v. NSA, the 6th Circuit case that Judge Anna Taylor Diggs bounced just to give you an idea of what i mean. In fairness, the ACLU is already saying that the new case is distinguishable because the existence of surveillance, and potential for surveillance, is much more established here, and there is some truth to that. Whether there is enough in that regard or not will only be told by time; but it will be dicey. It should be noted that the plaintiffs here are not proceeding under "aggrieved person" status pursuant to FISA in their standing claim, rather they are asserting that their livelihood, work and income, as well as privacy, are being, and will be, chilled by the pervasive effects of the FAA provisions.

The second filing by the ACLU today was made to the FISA Court and is encaptioned Motion For Leave To Participate In FISC Proceedings Required By The Fisa Amendments Act Of 2008. (another pdf). The caption is fairly self explanatory, the motion basically seeks leave for the ACLU to participate in proceedings in the FISC that occur pursuant to section 702(i) of the FAA by filing of briefs, require the government to file public unclassified versions of government briefs and filings, and that the court issue unclassified versions of any decisions. It will be interesting to see how the FISC rules and responds to this application. I would have been very skeptical prior to this order in an earlier application the ACLU made to the FISC seeking certain sealed court records. Colleen Kollar-Kotelly may just be peeved enough at the whole surveillance mess wrought by the Bush Administration to agree to this intervention.

So, these are the two actions proffered by the ACLU, and we owe them a world of thanks for waging the battle for all of us. I think they are designed to bring leverage both legally and in the court of public opinion. Until the plaintiffs start filing responsive pleadings to the motions to dismiss in the various consolidated cases in front of Vaughn Walker in NDCA, this is where the legal action is going to be. Take a look at these pleadings and let’s unpack them together, discuss and see if we cannot find some additional ideas for moving forward.

Alright, one extra little bonus. I have been holding this back for quite a while now because I was literally loathe to have it in the public domain and be latched onto by people like Obama and the other folks selling out the Constitution and 4th Amendment, as well as those that would support them and rationalize their egregious sellout. Specifically, we have worked single mindedly under the assumption that, while many parts of the FAA might could be reversed or minimized through subsequent legislation with a new Congress, the retroactive immunity portion was irrevocable and final. That may, and I emphasize this is a tentative and weak may, not necessarily be the case.

It is feasible that, providing the repealing legislation was enacted prior to the final determination of the appeals that will be made from the dismissals of the 40 some odd cases in the consolidated litigation in NDCA currently in Vaughn Walker’s court, the cases could be returned to the posture they were in prior to the immunity grant. And the appeals, assuming they go all the way through the Supreme Court, which is a given, could not possibly be done before next spring. Given the weak Democratic leadership, I think this quite unlikely, but it is a possibility to consider. So please, keep up the pressure on your Congresspeople, and let them know your fury at what has transpired and that you expect them to correct it after the election and the new term starts. And it is not just me that thinks this, it is the belief of the litigators at the EFF I have spoken to as well. Back to the salt mines; it ain’t over till it’s over!

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  1. Hmmm says:

    Ain’t you sly! Though as you suggest it would seem that the prospect of any quick repealing legislation depends on whether the new Congress will hold more true D’s than the sum of DINO’s + R’s. Not the same thing as just gaining seats.

    • RevDeb says:

      It would seem that neither the House nor the Senate is currently possessed of the will to change it. Even with a supermajority in the next session—should that occur—what makes us think they would want to do anything about it? If anything, the telcos will up the ante to keep this under wraps. And if Nancy and Harry and Steny et al did this to cover up their own complicity, there’s no reason to believe that they would be inclined toward a change of heart.

      None of this gives legal analysis, but unless and until we know for a fact the rationale behind their secret maneuvers, it would be hard to come up with a strategy to counter them. At least politically.

      But thanks for trying to find the pony in the barn full of manure.

      • ohmercy says:

        Hi Deb.
        I’m thinking that the next Congress will(hopefully) include more Progressive Dem’s. I will send Progressive Patriotsw what little I can when I can.

        I’m also thinking/hoping that those three will be stripped of power when the next Congress gets in.
        Maybe I’m wrong but I thought with a new Congress new leaders can be brought to the fore.

  2. BayStateLibrul says:

    Thanks, we need a place to vent.
    For me personally, it is the bottom of the ninth, two outs, and Julio Lugo is at the plate.

  3. JimWhite says:

    Yesterday, on his later of two threads, I asked Glenn about the lawsuits in front of Vaughn, wondering if they are gone forever if they get dismissed. Here is his answer to me:

    I assume that if the suits are dismissed before the law gets voided in part they still are gone, aren’t they?

    Not necessarily. I presume that it will proceed this way — the telecoms will move to dismiss on the ground of the immunity this law gives them. The plaintiffs will then argue that the telecom immunity provisions are unconstitutional (because it denies them due process, because it constitutes a “taking” without the just compensation that is constitutionally required, that it constitutes a Congressional usurpation of Article III powers).

    If the district judge finds the law constitutional and dismisses the lawsuits, then the plaintiffs can (and surely will) appeal to the 9th Circuit and, if they take the case, to the Supreme Court. If they win on appeal, the suits would be reinstated.

    I find this satisfying on several fronts. As you mentioned above, both of the actions filed yesterday have some aspects that are risky. The plaintiffs in the existing suits, however, have rock-solid standing to challenge FAA precisely because the unconstitutional due-process canceling aspects of it are aimed at substituting legislative action for judicial action. I really think that this pathway is the one that will pay off the most. The only question is how much of the act gets struck down through this action. Let’s hope EFF is able to challenge as much of it as possible when they are responding to the motion to dismiss.

    • bmaz says:

      Jim, I am still a little groggy this morning, so I may have to reconsider this later, but the only aspect of the FAA that I see the consolidated plaintiffs in NDCA being able to attack is the immunity provision itself. The other portions of the FAA are effective prospectively and therefore would not, and could not, have any effect on those plaintiff’s claims.

      Also, I will disagree fairly significantly with Glenn in relation to the nature of the appeals, and ground for potential reversal, of the NDCA plaintiff’s claims. Unconstitutional taking will undoubtedly be plead as a ground for appeal, but if that is what they are relying on to get the reversal, then I think they are truly screwed. In my book, the plaintiffs are going to have to win on the unconstitutionality of the law itself as opposed to the unconstitutionality of what the law does, i.e. taking. Put another way, if the immunity grant is found acceptable, the court will be able to find sufficient basis for the governmental taking that results from it. I have not read Glenn’s piece yet, so he may be saying much more than that excerpt reflects, but if that is the sum total, I think it ill taken.

  4. darclay says:

    Sorta ot, when the new congress convenes do we get new speaker and majority leaders? Do we get a say in who they are, or can we tell the DNC who we want? I forget how that works God we need to get rid of Reid and Pelosi. Maybe say Dodd or Finegold majority leader and Kucinich speaker, now there ’s a set of brass ones that could do something.

  5. behindthefall says:

    This is similar to the tact taken in ACLU v. NSA, the 6th Circuit case

    Probably you meant ‘tack’ (as in sailing) rather than ‘tact’. Or?

  6. yonodeler says:

    In a recent Senate committee hearing to consider issues of Internet advertising and privacy, written about at WaPo here, it was obvious how little some Senators have educated themselves about the Internet. The Members of Congress who know next to nothing about Internet and communications technology now also knew next to nothing when considering the FISA “modernization,” not that paucity of knowledge interfered with their purporting to know that they were making the right voting decisions.

  7. GulfCoastPirate says:

    Thanks for the update. For a non lawyer like myself these types of posts are quite useful.

    I know it is a hypothetical but I’ve stated before I believe it is within the realm of possibilities the Bushies aren’t leaving. Go into Iran, declare matrial law, etc. After something like this why would they think the Congress or anyone else would stop them.

  8. danps says:

    Just as FISA was cranking up a few weeks ago I got a fundraising letter from Obama. I hung on to it because I wanted to see how he handled the bill, and I’m very glad I did. This morning I mailed it back with no money but with a note that I would not spend another ounce of effort, second of time or penny of my money on his campaign. He’s got my vote pretty well locked up, but I’m no longer willing to actively support his campaign as I had. If I’m an anomaly (and I may well be) the campaign may just think “screw him, we don’t need him anyway.” It would be nice if they actually noticed a drop in enthusiasm though.

  9. earlofhuntingdon says:

    Politically, it is hard to imagine this or the next House or Senate doing anything but licking their coats and whatever else they can reach, and padding softly over to sit by Uncle Dick’s fireside, ready to growl at any passing civil libertarian.

    Out of six hundred odd CongressCritters, only a few know anything at all about the Surveillance State programs they’ve just institutionalized and protected from harm. Both parties have ignorantly marched in lock-step to remove this issue from their and the public’s purview. Why? Because the least competent or popular president in modern American history, with a history replete with stonewalling, lies and Orwellian obfuscations and a track record of deceitfully implying one thing while doing another, told them it was necessary “to keep us safe”. It makes me reach for the oil of clove, because I know that somewhere in the dark, Szell is holding his dentist’s drill.

    Not that I believe that Congress or the President believe that. But they chose publicly to appear to back him for their own, non-public reasons. I would call that reckless lawmaking, intentionally disregarding their duty to inquire and oversee. It’s not spineless. It’s corrupt.

    That said, once telcos take action that reasonably relies on their being immune from suit, eg, admits participation, asks for more lucrative participation, legitimately destroys records, etc., then I agree with bmaz. This legislation’s grant of immunity becomes irrevocable – as to past conduct. Meaning that a competent Congress could change its mind and restructure these programs and redefine what constitutes “reasonable search and seizure”.

    I contend, however, that a principal reason for this legislation — why so many lawmakers knowingly followed a corrupt White House into the constitutional night — was to make legit, to make permanent, the new “intelligence services” segment of the Military-Industrial-Congressional-Services Complex. If so, Congress wouldn’t dream of changing the rules, except to make them more favorable to those now indispensable services and those who provide them.

    • bmaz says:

      Heh, I agree that the chances are slim on changing the legislation, but with the will of the leadership, and with newfound heightened majorities in both houses, it could be possible. would also require, of course, Obama to sign it then, and who in the world knows what his deal will be. The odds are indeed very slim, but I simply wanted to fess up to something I have been intentionally avoiding for quite some time now. As to steps in reliance by the telcos, again that will not happen so long as the appeals are pending, but would certainly be the case once the appeals are concluded. They would acknowledge just the minimum necessary to insure reliance and irrevocability.

  10. wigwam says:

    Slightly OT: Yesterday, Glenn Greenwald cited Stanford law professor Larry Lessig, whom I’ve come to respect for his work on behalf of the open software movement, regarding the role the policy wonks inside the Obama campaign played in getting Obama to support H.R. 6304.

    I was quite surprised to read this from Lessig: http://lessig.org/blog/2008/07…..teria.html

    … The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important. … But I also think the FISA bill (excepting the immunity provision) was progress. …

    He defends this in the comments:

    An executive can always ignore the law, … But Congress can make it clearer that he is ignoring the law.

    This appears to be yet another case of the FISA crazy-talk syndrome.

    • wigwam says:

      Please pardon my self-reply followup: As Georgetown law professor Marty Lederman mentions, George Washington law professor Orin Kerr thinks that the recently passed FISA Amendments Act of 2008 is a big improvement:

      Orin therefore is quite right that the new law is a marked improvement over the temporary 2007 PAA. Accordingly, he wonders why the press is reporting this as a dramatic expansion of government power.

      Marty continues, however:

      the law from 1978 to 2007 is the proper baseline for comparison — not the PAA. The PAA was designed to last only six months for a reason: because Congress did not have an opportunity to consider the questions carefully, and gave away the store to the Administration on the condition that the interim law would be short-lived.

      Thus, I disagree with Orin when he writes that “the most accurate way to frame looking at the new law is by reference to the Protect America Act negotiated just last year.”

      The proper frame of comparison is FISA circa 2006.

      Orin says that’s not fair, because everyone agreed that the pre-PAA FISA was out-of-date, and the new law fixes the gap in FISA that was uncontroversial.

      That’s true. Prior to 2007, FISA required a court order for interception of e-mails (not phone calls) from one foreign party to another foreign party if the interception occurred here in the U.S. And everyone agreed that such e-mail surveillance needed to be treated the same as foreign-to-foreign phone surveillance, which never required any such court order.

      The new law does, indeed, close that gap.

      But it does much, much more as well — namely, it gets rid of the FISA requirement of a court order (and a finding that the target is an agent of a foreign power) for foreign-to-domestic phone calls and e-mails that are intercepted in the U.S. Therefore the new law — like the PAA but unlike the 1978-2006 FISA — will now permit the NSA to intercept a huge number of U.S. persons’ international phone calls and e-mails.

      I completely agree with Marty. The PAA expired in February as progressives defeated Bush’s then-current attempt to immunize his accomplices. FISA of 1978 is the law of the land and HR 6304 was the FISA Amendments Act of 2008, not the PAA Amendments Act. Kerr’s claim that the PAA is the proper point of comparison is one of the key talking points by one of the most high-powered propaganda teams ever assembled to lobby a particular interest-serving bill into law. Kerr demeans himself by parroting it.

      • bmaz says:

        Yep, I agree completely with you and Marty. Lessig’s spiel is just a bunch of rot quite frankly. And, being the prick I am, i will go one step further. Just exactly why does Obama need a bunch of policy tools to tell him what is right on this issue? He is supposedly the top flight Harvard educated Constitutional law scholar, whose current paying job is as a freaking United States Senator; this stuff isn’t rocket science, he ought to be capable of figuring it out on his own. He wasn’t pressed for time either, the basic issues have been in play for a year now. This is complete BS as far as I am concerned.

        • dosido says:

          He is supposedly the top flight Harvard educated Constitutional law scholar

          I admit I am leaning quite heavily on this fact for a whole lot of hope. Then again, there is a Santa Claus…

          • bmaz says:

            I am neither a Harvard graduate nor lecturer in Constitutional law at any law school; however, I have a smidgen of background and experience in the area and have seen absolutely nothing noteworthy or exceptional in Obama’s skills and knowledge. Maybe he has just dumbed his statements down for the masses, but I saw him a couple of different times on cspan where he wasn’t campaigning, indeed before he was an official candidate and, in retrospect, saw nothing striking there either. At this point I would not put much stock in that part of his persona; to the extent he even has it, he is unwilling to use it.

        • wigwam says:

          As a lecturer on Constitutional Law at a major university and as someone who had already waxed eloquent on the correct side of this issue, it should have been a no-brainer to tell a policy wonk to go to hell.

          I noticed that the day after the last primary and a couple of days before Hillary conceded, Obama prostrated himself before AIPAC and was then immediately endorses by Rahm Emanuel — see this. Immediately began Obama’s rightward shift.

    • john in sacramento says:

      Larry Lessig wiki

      Lessig has emphasized in interviews that his philosophy experience at Cambridge radically changed his values and career path. Previously, he had held strong conservative or libertarian political views, desired a career in business, was a highly active Teenage Republican serving as the Youth Governor for Pennsylvania through the YMCA Youth & Government program[1] in 1978 and almost pursued a Republican political career.

      Another Chris Carney?

      • PJEvans says:

        I don’t think he’s that bad. I think he’s just another conservative Dem, like Clinton (who was, you remember, a ‘Goldwater girl’).

  11. dosido says:

    Thank you so much for this post, bmaz.

    I wonder how many justices are rubbed the wrong way by this move by congress ie cutting them out of the loop.

  12. bell says:

    bmaz – thanks for this…. if i can offer a simple view, this would be it… the game is over.. those who are paying attention can’t believe the guy they are thinking of voting for come november has supported lies and deceit… there is no way to get around this simple fact.. obama is a huge disappointment. any thought of addressing the deceit of the bush admin accountable with obama are gone…that is a sobering to many..if it is any consolation, the changes coming down the tube for the usa are immense and only just beginning to become obvious..

  13. randiego says:

    Morning bmaz – thanks for this and thanks to the ACLU. There’s a little extra in their christmas stocking this morning.

  14. strider7 says:

    cause and effect
    Journalists Chris Hedges and Naomi Klein of The Nation said the law creates a chilling effect on their international reporting — since their jobs requires speaking with overseas parties that often work against American objectives, their contacts might be wary of further communication. Hedges, in particular, says that one of his sources – a secret contact close to Hamas – is already more hesitant to speak openly.

    Hedges compared the passage of FISA to the tactics of authoritarian regimes he had previously worked inside, noting that their objective was to openly “prevent any dissidents, anybody who had information that countered the government” from contacting him.

    • bmaz says:

      And Wigwam too – Yep I was aware of Klein and Hedges when I wrote this. I was in a conference call with them yesterday on this very bit. That is precisely what I was referring to when I talked about in the third paragraph above when I said that hypothetical, as opposed to concrete established, harm is a lot tougher pill for Federal trial judges to swallow. They really are not fond of these kind of claims. Doesn’t mean it automatically fails, but your work is cut out for you when you start off from this kind of position.

  15. klynn says:

    Thanks bmaz.

    I mentioned over at the Lake on Wednesday that we needed to continue with calls and snail mail to let people on the Hill know this was not okay.

    I’ve created 40 different comment post cards for my neighbors to select from that look like individual “production” pieces. Everyone has been willing to sign them, address them and make them their own. Over 200 mailed since Wednesday.

    • ohmercy says:

      klynn, this is a great idea!
      would you be willing and able to post some of them somewhere for downloading?
      maybe one of the photo hosting sites. I like Picasa. very easy to use.
      Then those of us reading here can post the links to as many of the other blogs and sights as possible.
      I have been thinking and prosletyzing (sp) about actual snail mail campaigns for a couple of years. Not very good at the prosletysing(sp) apparently.

      I wanted to do it about Impeachment.
      Emails aren’t visible but sacks of mail make a statement. Like a money bomb but a snaiil mail bomb all set for the same day.

      Anyway, this is such a great idea. If you decide to upload to a site please let me/us know and i will do my best to get the word out.

      PS.
      Lets not forget to thank those who voted for… not just the ones we want to support but ALL of them.

      Yes, that means Hillary Clinton too.
      I’ll be sending some cash to some of them and sending her a bit too help retire her debt.

      I just realized you may not even see this.
      booo.

      • klynn says:

        No need to worry. I visit here enough…

        I’ll see what I can do in terms of posting them for others to download.

        I did try to send EW and Christy a FISA t-shirt/sign design for people to down load with the theme Drum ROLL Please (Rule Of Law Leadership) but the images were unreadable through gmail for some reason…

        Keep your fingers crossed.

        • ohmercy says:

          GREAT!
          Thanks.
          T Shirt sounds great.

          If I wasn’t so busy avidly devouring everything (some might say obsessively) on all of this stuff I might try a hand at it myself.

          I had wanted to do a Masters of War one way back.
          too busy screaming though.
          along with banging my head against the wall.

          Thanks again!

  16. masaccio says:

    Here’s a shot from a bankruptcy lawyer, not a noted Harvard Constitutional scholar, looking at the merits of the complaint.

    The leading case on the question of privacy in electronic communications is US v. US District Court, 407 US 297 (1972), available here. The complaint points to direct conflicts with the Supreme Court’s opinion in that case.

    As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.

    Id. at 314-5.

    These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 389 U. S. 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

    Id. at 316-7.

    The independent check upon executive discretion is not satisfied, as the Government argues, by “extremely limited” post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U. S. 89, 379 U. S. 96 (1964).

    Id. at 317-8; fn omitted.

    The complaint raises these matters in paragraphs 39-43.

    Part IV of the Supreme Court’s opinion deals with the differences between criminal cases and domestic surveillance cases, and carefully draws a distinction between domestic and foreign surveillance. It looks to me like the original FISA was grounded in that cautionary section. For example, the Court notes that Congress might recognize that in dealing with domestic security, other standards might be appropriate.

    It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518, but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518.

    Id. at 323.

    It is this cautionary language that will be the legal grounds of the case, I bet.

    • bmaz says:

      I think that is a good analysis on the merits, and I probably should have gone back and found that cite and discussed it. Good thing it is a working thread and that excellent minds like yours are here to chip in. And I mean that seriously. That said, I guess my fear is that the merits don’t get reached in this kind of setting because the court won’t like the standing/case in controversy portion of the suit. In that regard, I think the appeals on the dismissed consolidated cases from NDCA may prove a better vessel for your arguments. Truly hope I am wrong and that they will all fly in both forums and that the courts will shove this junk back where it came from.

      • masaccio says:

        bmaz, finding a proper party has become the major problem in all these cases. It seems like the merits are irrelevant in modern federalist society practice. I believe that explains why I got so hot in my comment about what the judge should do in the San Francisco. I get furious when the law ignores reality in cases, and that one is a perfect example: everyone knows the government spied on the plaintiffs. No one denies it. The government’s position doesn’t meet the laugh test, at least I know I couldn’t make that argument with a straight face.

        This line of thinking led me to the idea that we need to go back to basics, as I argued several threads ago. We need to remember that one of the primary purposes of courts is to protect the constitutional rights of citizens. The Constitution doesn’t grant rights to citizens. All rights belong to citizens, unless the Constitution gives them to a branch of the government.

        We need to find a way to make courts remember their actual purpose, instead of allowing themselves to be manipulated by anti-intellectual republicans like our DOJ dogbreaths.

        • bmaz says:

          Yep, there needs to be a little more equity, and a little less technicality on some of these constitutional rights cases. Such rights should be easy to enforce and seek redress in court against the government, not difficult. As to the case you are talking about, is that al Haramain where they have the nonsense about “the document” that was inadvertently disclosed and now everybody has to pretend they never knew about it? If so, I don’t think that initial BS played out in front of Vaughn Walker in San Francisco, I think it was another District judge (I think in Portland, but may have been SF).

  17. Ron1 says:

    Hey, masaccio — your bankruptcy training is apparently more in-depth and thorough than any lawyers advising the presumed next President of the US. Nice job.

    bmaz, what I would like to do is try and get some prospective congressional challengers on the record supporting exactly what it is you’re talking about — I want to form a pressure/advocacy group to agitate for shining more light on what’s happened. We can’t rely on the EFF and the ACLU on this — we have to start building the grassroots pressure apparatus necessar to effect change in the 111th congress. Much like the ‘Responsible Plan’ advocated by Darcy Burner et al, I want to get together with likeminded people/citizens and build a platform for getting more good guys on our side. It starts with summarizing what we know about all this surveillance, and then moves to an action plank that we can get congressional candidates to commit to — we commit to 1) investigating the Bush surveillance crimes and system, 2) we commit to reversing telecom immunity immediately, 3) we commit to reforming FISA and surveillance activities to comport with the 4th amendment AND better protect our liberties, 4) we commit to reforming the entire regime of state secrets that allegedly prevents congresspersons from talking about these issues for fear of arrest, 5) we commit to a full, public airing of our surveillance structures and the intersection of government surveillance and corporate involvement so that the citizenry can be fully informed, etc., etc.

    ew/FDL seems like a perfect advocacy starting point, we could get a dedicated website, etc. And then we fan out across the country, or via Blue America’s obvious carrot, and ask people like Darcy Burner and Tom Perriello and Jim Himes and Donna Edwards and Judy Feder, etc., to get on board.

    My $.02.

    • bmaz says:

      You know Ron, I think that is exactly right. I don’t think it can be effective as such until the election two years from now though. There is too much set in stone already with candidates, money, positioning etc. This time we are going to have to suck it up and elect as many Democrats, whether they are the ones we would optimally like or not. This will give big enough majorities that we can afford to be a little more aggressive in challenging the worst ones next time. some time back I likened it to giving them enough rope that we can hang them with it two years from now. This of course doesn’t mean that we should not apply any and all pressure we can, where we can; for instance there are some primaries still up for grabs like the one in Georgia between Barrow and Regina Thomas. I guess what I am saying is yes this election, but use our resources wisely and where they can really make a difference, not just to make noise. But hoard all other resources, start recruiting better people now for two years down the road and really take a long term battle plan approach like the GOP did many years ago. That also includes building up funds, local and state level group and connections, funding opinion group leaders to voice the word like the GOP has done with all their think tanks and advocacy groups etc.

  18. ohmercy says:

    This is probably a dopey question, certainly not on the level of the great conversation I’m always reading here, but would someone tell me why the vetoing of the Bill is cited as one reason Dem’s passed it?

    I mean really, to quote Darth:
    SO?

    • wigwam says:

      I also noticed that non sequitur. There seemed to be a mass hysteria that something, anything had to be passed. That FISA was in danger hand had to be amended, and it would all be for naught if Bush vetoed it. So it had to be something that Bush could live with. That was the reason they opted for immunity. “Otherwise, Bush will veto it and then where will we be?”

      When confused. When in doubt
      Run in circles. Scream and shout.

      • ohmercy says:

        HA!

        You’re a poet!
        Yes.
        and of course the fact is that the old FISA works just fine and could have stayed in place till, if necessary a legal overhaul was drafted.

        “lies and the lieing liars who tell them!”
        LOL

  19. bobschacht says:

    Dumb and dumber.

    That seems to be the Democrats strategy for this session of Congress. “Yeah, we may be dumb about asserting our Constitutional prerogatives, but the Republicans are dumber, so come November Americans will vote for us and not them. HAhahahahah!” Meanwhile, public admiration for Congress is non-existant.

    There used to be some pride Congressfolks took in their institution. Not any more, apparently.

    Makes me real proud to be a Democrat.

    Bob in HI

    • wigwam says:

      I’ve recommended Selise’s post as the must-read of all must-reads. Damn, she has done some great work.

    • cboldt says:

      Selise has compiled a very nice and thorough overview and timeline post on FISA at DKos.

      Very well done, and summarizing the timeline is helpful. The events from Dec 2005 to August 2007 are also interesting.

      Dec 2005 – Dec 2006: Government says TSP is legal, resists Congressional intrusion, but gets hammered to disclose information that Congress might use to craft legislation
      Jul 2006 – A request for retroactive immunity appears in Heather Wilson’s H.R.5825 (See “Reported in House – H.R.5825.RH at Section 11(a))
      Jan 2007: Government submits TSP to FISC on some mysterious basis. Issue “chills” in Congress (not as much clamoring against the administration, Gonzales, etc.)
      Apr 2007: FISC puts up some resistance, government put heat on Congress to pass a bill and submits a 66 page proposal for legislation. Congress “crickets” until late July.

      The real reason I started this post was to share some speculation as to which members of Congress support personal privacy interests. I think that number “depends,” and I’ll toss out one hypothetical. If the Capital building had been hit on 9/11/2001, I think nearly 100% of Congress would have passed FISA “modernization.”

  20. PetePierce says:

    These letters to the NYT this morning, on the recent FISA cavein by a parade of gutless dems who talk tough and roll over and get pissed on by Bush with regularity including Sheldon tough mouth pansy ass Whitehouse and the insipid pure bread moron Diane Feinstein was on point. Never in one week haveI see so much lying completely contemptuous of the American public many of whom deserve the contempt because their laser focus is on Madonna/A-Rod. The day of the FISA vote I could not run into one person who didn’t respond to the words FISA vote with “Huh–What’s that?” Rove, FISA, they go straight to America being in the toilet but they are completely off the American radar.

    To the Editor:

    As a repeat donor to the Obama campaign, I was bitterly disappointed in Senator Barack Obama’s “yes” vote on FISA on Wednesday. Several times during the campaign, Mr. Obama swore that he would fight against, and filibuster, any bill that provided retroactive immunity for FISA violations. On Wednesday, he voted to pass just such a bill.

    Although Mr. Obama has shown many heterodox positions, this is completely different. With this bill, he broke his promise, for the sake of capitulating to the Bush-Cheney administration and gutting the Constitution. This betrayal by Mr. Obama is as baffling as it is inexcusable. He has lost my support.

    Bryan Erickson

    Eagan, Minn., July 10, 2008

    To the Editor:

    The analogy between Senator Barack Obama’s yea vote on Wednesday for the FISA amendment act and Senator Hillary Rodham Clinton’s yea vote in October 2002 for the Iraq resolution is not to be missed or understated.

    Mr. Obama did not want to hand John McCain a cudgel with which he could be attacked as soft on terrorism during the presidential campaign. But is that not precisely the reason Mrs. Clinton, who at the time still had not decided whether to run against the incumbent George W. Bush in 2004, voted for the authorization of military force in Iraq?

    In each case, passage of the bill was a foregone conclusion, so the only effect of a negative vote would have been potential harm to an imminent presidential bid.

    Is Mr. Obama now ready to concede that Mrs. Clinton, rather than showing poor foresight, was just exercising good political judgment? James Tocco

    Cincinnati, July 10, 2008

    I just got an email from the woman who helps run the Obama organization in my state about an organizational meeting and of course money and I brightened up her day with the high points of what the FAA (not the idiots who almost caused a second crash at Kennedy and will get one soon) but the FISA Amendments Act of 2008. I also shared her my math triumph fresh from my second grade education in “how to takeaway” mirrored by my 9th grade Algebra I course.

    Rich Lady Have $200,000,000

    Penn, Mandy Gruenwald and Small Venders Owed $12.000,000

    Clinton lady who stood in back of pickup owes herself $11,000,000

    $200 million or somewhere close takeaway $12 million leave $188 million.

    Why rich lady ask me for money when she have between one hundred and two hundred million dollars?

    I no stupid but maybe close. I tell them stuff it. I no work for Obama vote for FAA. I no give money to rich lady who have $188 million already more than she owe.

    I work for down ticket Senate Candidate only.

    Rich Lady Owe Small Venders and Predominantly Mark Penn $12 million (Mark Penn have wife Nancy Jacobson who invites you to $10,000 seminars in which she promises Kevin Spacey and Laura Dern because Penn Wife believe rich people like to buy People Magazine presences for a couple of hours even though Spacey has no intention of showing up)

  21. MarkH says:

    Q: Would it be enough for the court to strike article II (immunity) or would the FDL/Emptywheel readers require the entire law to be stricken before their bloodlust is satiated?

    Q: Do we know much of anything about the NY judge who will handle this case?

  22. cboldt says:

    Make that request for Retroactive Immunity appear in September 2006, not July 2006.


    House Report 109-680, Part II

    ROLLCALL NO. 13–DATE: 9-20-06

    SUBJECT: Mr. Cannon offered an amendment to H.R. 5825, which was agreed to by a rollcall vote of 22 ayes to 16 nays. This amendment would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The amendment applies to all pending and future cases, and allows all such cases to be removed to Federal court. The amendment also applies the old definition of `electronic surveillance’ contained in FISA prior to enactment of the Act.

  23. PJEvans says:

    What I want to know is,
    Why does the legislature pass a piece-o-crap bill like this and then expect the courts to toss it out?
    Wouldn’t it be a lot cheaper and easier to simply not pass it in the first place?
    When did it become the legislature’s job to be just an unthinking rubber stamp?
    and
    Did George issue a signing statement on this one, or was Darth so busy doing a Happy Dance that George didn’t get handed one?

  24. yonodeler says:

    There were not enough truthful and well-informed voices in Congress to present to the citizenry an overview of what is going on with domestic surveillance and personal data collection programs. The distinction between blanket and targeted surveillance suffered as most Members of Congress preferred to convince their constituents that targeted surveillance accounts for nearly all domestic surveillance. The granting of retroactive immunity to certain telecommunications and Internet service providers was sold as just treatment of companies that purportedly put duty before self-interest when the country was in dire need of their help; meanwhile, blanket surveillance programs dependent upon the participation of service providers went unchecked and remain unchecked.

    The Framers felt no need to wait for all possible harms causable be government to present before drafting constitutional law intended to prevent those harms. They were students of European history, and knew very well the tendencies of those who possessed power over others. They didnot wait for a list of recent anecdotal harms committed by government to inform their decisions as to how the Republic should be. Today, convincing anecdotes of harm to surveilled persons or companies might be all that would sway most Members of Congress to admit error, if not lying, in their positions on FISA and related domestic surveillance issues. Government secrecy and public fear of speaking up may make anecdotes of harm hard to come by.

    Lawsuits by EFF, ACLU, and others support hope that reclamation of the Constitution is possible, at least in part. Yet, while I won’t wish harm on persons or companies whose ill treatment by government would necessarily provide the basis of anecdotes of harm, I will be hoping that instances of harm against persons or companies, committed by surveilling government agencies and their corporate partners, will be brought to light and provide incontrovertible evidence that Congress has done the Constitution and the country wrong.

    • yonodeler says:

      The first sentence of the second paragraph in 55 should have “causable by government” rather than “causable be government”.