The FISA Loss: Recommendations for the Future

Selise’s superb diary on FISA has finally persuaded me to write a post that I’ve been thinking about for some time: a recap of the FISA fight with thoughts on what we could have done differently.

Before I talk about what we could improve though, let me say this. Everyone involved, Republican, Democrat, House and Senate, attributes the unexpectedly tough battle over FISA to the work of the Netroots: bloggers, MoveOn, and most importantly their readers, partnering with the civil liberties groups and a few leaders in Congress to push back against a legislative tidal wave. Aside from Josh Marshall’s resoundingly successful campaign to save social security–in which public opinion and Democratic leadership always supported the same goals as the Netroots–this was the first real sustained legislative campaign waged by the Netroots. We were fighting against a telecom and intelligence contracting industry that, in addition to being rich, has been fighting these battles for years. Looked at from that perspective, we had remarkable success. And if we replicate this effort on other topics, we will have more success in the future. In fact, I rather think the news that Chris Dodd is one of the few people confirmed to have made the vetting stage of the VP search (though I highly doubt Obama will choose him–I think it’s political theater), when Hillary and Jim Webb and Joe Biden and others have not, suggests Obama recognizes that he took our efforts too cavalierly. We did a lot right in this fight; if we learn the right lessons from it, we will be more powerful and effective in the future.

That said, here are some things we should do in the future:

  • Improve intelligence oversight
  • Admit we’re dealing with legislators
  • Identify the real terms of debate
  • Recognize when leadership begins to negotiate
  • Profile all the key players

Improve intelligence oversight

As Selise points out in her diary, we were fighting against a leadership that–because they were among the only ones briefed on the President’s illegal program–had an incentive to support telecom immunity because they had, at least by virtue of not mounting an effective opposition to the program, bought off on it. The still-serving Democrats who had been briefed on the program before it became public in 2005 are: Pelosi (from the very first briefing on October 25, 2001 as HPSCI ranking member, and continuing as House Minority leader), Reid (in his role as Minority Leader on March 5, 2005), Inouye (in his role as Defense Appropriations Chair on December 4, 2001), Harman (in her role as HPSCI ranking member starting in 2003), Jello Jay (in his role as SSCI ranking member starting in 2003). All but Reid voted in favor of the final bill (House roll call, Senate roll call), and even Reid failed to do a great number of things to prevent passage of this bill. Jello Jay, Jane Harman, and Nancy Pelosi all provided critical leadership in ensuring final passage of this bill. Add in the Democrats who were briefed on the program after it became public but while it was still illegal–Murtha, DiFi, Levin, Holt, Cramer, Eshoo, and Boswell, and only Levin, Holt, and Eshoo voted against the bill.

Partly, that simply says that we’ve got far too many Blue Dogs like Boswell, Cramer, Harman, and DiFi in relatively senior positions in intelligence oversight. And partly, this is just a factor of the fact that, by briefing the Gang of Eight, you’re sure to implicate those who have the ability–going forward–to lead on legislation pertaining to intelligence.

But that’s not sufficient explanation. Jello Jay, Jane Harman, and Nancy Pelosi all tried to object to the program in one way or another. How each of them did so–and why their objections ultimately failed to exonerate them from responsibility for the illegal program–is instructive.

Say what you will about Jello Jay, but his attempt to establish a legislative record was perhaps the most effective (which is a testament to how pathetic intelligence oversight is, not to Jello Jay’s effectiveness). As this post explains, in the middle of an ultimately successful Congressional attempt to withhold funding from any large scale data mining program (which is probably one of the reasons why Bush’s program would be judged illegal on the part of the Courts), Jello Jay informed Dick Cheney that he thought that the warrantless program sounded like the TIA program Congress was in the process of making illegal.

I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA,Chairman Roberts and our House Intelligence counterparts.


As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

In short, Jello Jay created a legislative record that stated the Administration’s program violated Congress’ intent to–by exercising the power of the purse–end precisely that kind of data mining program. Now, it’s not clear why Jello Jay didn’t use that legislative record to object strenuously when he discovered that the Administration continued to break the law in spite of Congress’ legislative efforts to make it illegal. But it’s possible that the signing statement Bush issued when he signed that bill is the reason.

Jane Harman did not object strenuously to the program until after NYT revealed details of the program and she first realized that she had not been briefed on all aspects of the program. At that point, she did try to do some real oversight.

The New York Times story ran on December 16, 2005. The next day, President Bush publicly confirmed the program’s existence in his weekend radio address. That day, a Saturday, I did two things: I tried to get our full Committee briefed and I consulted experts on the law.

I tracked down NSA Director Michael Hayden, who was shopping for holiday presents in Annapolis, and asked him to brief the full Intelligence Committee later that day. He said yes, provided the White House signed off. Bush Chief of Staff Andy Card at first agreed, but called me back an hour later saying the briefing was off. (It was months before the White House briefed additional Members of the Intelligence Committees. I even spoke with Vice-President Cheney about the need for a full Committee briefing, but he turned me down flat. Finally, on the eve of Gen. Hayden’s confirmation hearing to be Deputy Director of National Intelligence, the Administration agreed to brief all committee Members.)

Additionally, as the President had disclosed the program, I was finally free to consult constitutional experts on the legal issues it raised. My call to a former CIA general counsel that Saturday provided the first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of “inherent” executive power.

Probably, though, since she had apparently already failed to object when told DOJ had problems with aspects of the program, it was too late for her to do much but demand expanded oversight.

Nancy Pelosi’s objection to the program is most troubling. When, on March 10, 2004, the Administration came to Congress and asked whether, in light of Comey’s refusal to reauthorize the program, Congress could do a quickie law making it legal, the Gang of Eight said legislation would be impossible on that short notice, but a majority of those present did not object to the continuation of the clearly illegal program. That’s critically important for the issue of immunity–Congress couldn’t very well advocate holding the telecoms responsible for accepting an authorization from the White House Counsel, could they, if they knew and approved that the program should continue even after Comey determined it legally problematic. Nancy Pelosi says she objected to continuing the program, but admits that, by a majority vote, the Gang of Eight gave legal sanction to continuing the program even though it was legally problematic.

Speaker Nancy Pelosi of California, who attended the 2004 White House meeting as House Democratic minority leader, said through a spokesman that she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting,

Now it’s unclear whether Pelosi and the others knew how strong Comey’s objections to the program were. But when a majority vote is enough to give legal cover for the President when his own DOJ objects to one of his programs, that’s a problem.

We need to get better Democrats on the intelligence committees (and put Holt and Feingold, respectively, in charge of them). We need to demand that Gang of Eight members have a means to make an effective legal objection to a given program (perhaps by allowing them to demand court review of a program?) and that majority rule cannot have the effect of making the entire Congress complicit in illegal acts. We need to enforce the law that requires the full Committee to be briefed–as well as technically knowledgeable staffers. (Marty Lederman offered more suggestions back in December.) If we don’t do these things, the Gang of Eight will continue to be a rubber stamp that will, if a problem with a given program is later exposed, serve as complicit legislative leaders cooperating in the cover-up rather than means to hold an Administration accountable.

Admit we’re dealing with legislators

We did a superb job on this campaign–largely through the efforts of Matt Stoller, who got FISA statements from the special election candidates and primary challengers–in proving that opposition to immunity was not a losing electoral issue. We–along with our coalition partners–did an amazing job at moving public opinion on this issue. But what we didn’t do, I think, was account for the fact that a significant chunk of legislators believe they are in the business of crafting compromises, no matter how outrageous one side of the debate is. That is, while we were successful in working with key legislators (Dodd and Feingold above all) to argue that the issues at stake–and the Constitution–had to be beyond compromise, that didn’t stop a solid chunk of Democrats from seeking compromise anyway.

Significantly, instead of thinking of ways to explain what an acceptable compromise and an unacceptable compromise would be, we usually insisted that there should be no compromise. As a result, we had virtually no ability to influence those Democrats who sought a compromise on this issue, nor any ability to help hopelessly flawed legislators like Arlen Specter or–for that matter–Barack Obama craft and develop the support for a less evil compromise. On key example is exclusivity–a critically important provision, sure, but as Kagro points out endlessly, will ultimately always fail to check a President who has an OLC hack claiming he’s got unlimited inherent powers. How much could we have gotten, instead, had we pointed out that exclusivity was already in FISA and that we’d be better off winning "compromise" on other issues? Until we succeed at populating Congress with more and better Democrats, we’re going to have to understand that at least a third of Democrats in Congress will be seeking compromise, and we should be prepared to incorporate in our message clear lines about what would be acceptable and unacceptable levels of compromise.

Perhaps the thing to do in the future is to assign certain coalition members the task of understanding what the terms of compromise are, and then crafting our message in such a way that, while we insist that no compromise is possible, we at the same time make it clear where the complicit Democrats ought to be negotiating and where they shouldn’t be.

Identify the real terms of debate

We did a superb job at moving opinion on the debate about telecom immunity. Indeed, our early focus on telecom immunity, with the message discipline and clear ask it gave us, as well as a Presidential candidate to champion it, was probably part of the reason for our success on this issue.

But we failed to account for a rhetorical strategy the Administration used brilliantly, even while we occasionally pointed it out clearly.

The Administration told us, back in 2005, in 2006, in 2007, and to some degree, even in 2008, that it needed Congress to amend FISA to account for changes in technology (digital telecom) that meant it needed to be able to tap foreign communications from within the United States. Of course, that was just a fraction of what it wanted from Congress. Indeed, it used its story about digital telecom to explain what it wanted to do, rather than admit that it wanted to access emails that resided on servers in the United States, as well, an admission that would have been far more troubling to the Americans who regularly use email.

More importantly, the Administration demanded the ability to use basket warrants without admitting what that meant–one of the key asks it was making was the ability to data mine the vast stores of data, probably including US person data, vacuumed up off the telecom circuits. This was clear from the early attempts to negotiate a deal before Democrats got the majority. It was especially clear during the Protect America Act, when the Administration rejected any attempt to fix the purely technical, US wiretapping aspect of things.

But we didn’t make a concerted effort to, first, make it clear precisely what the Administration was demanding (to his credit, Russ Feingold, even limited by secrecy rules, was able to do this the best). Thus, while many people were opposed to telecom immunity, we never really generated the public opposition to massive data mining that (the history of TIA makes clear) is fairly easy to develop in this country.

More importantly, we did not make a concerted effort to either suggest that this data mining didn’t offer enough protections to Americans, or, more importantly, was unnecessary or ineffective. Every time McConnell or Mukasey had to justify these powers, they pulled up an example (like the foiled liquid explosive on planes attack) that didn’t rely on the vast new powers or (like the Iraqi hostage situation or the ability to find who in the US was communicating with a known Al Qaeda hub overseas) were intelligence failures for a reason that had little to do with the actual FISA law. Given press reports about how crummy the leads from the original program were, we have every reason to believe that this enhanced spying results in a deluge of information, must of it red herrings that actually end up wasting law enforcement officers’ time. 

We never challenged the Administration’s contention that the data mining aspect of this program was effective. And as a result (I’m thinking charitably), people like Barack Obama and Sheldon Whitehouse and Bob Casey and Max Baucus, who opposed immunity, still claimed it was necessary to vote for the overall bill, arguing that the underlying program–the data mining, really–was so important that they had to pass the bill regardless of the problem with immunity.  

To do this better in the future, we need to find a way to both mobilize around one disciplined talking point (telecom immunity) while still fighting the battle for influence across the whole scope of the debate. 

Recognize when leadership begins to negotiate

I ineffectively tried to say something with this post that–if I had to do it all over again–I would have tried to say much more strongly. What I should have said was:

It is clear that the RESTORE Act, which Steny negotiated and led to passage in March, was just the opening salvo in a negotiation that Steny is determined to carry through to a compromise resolution. Therefore, we ought to recognize that Steny threw that opening salvo, and be prepared to argue for which parts of the final compromise we feel are deal breakers and which are not. 

In other words, when the House passed RESTORE in March, we took it as an end point, a bill we hoped we might be able to force on the Senate. But we should have suspected form Steny’s first round of negotiations–and we really should have recognized when we first learned Steny was negotiating directly with the White House in May–that that bill was meant to served only as a bargaining point, not as the end product. My effort to say, what would it take to make a bipartisan commission effective, was an attempt to brainstorm what we ought to be pushing Steny for in a final compromise, even while I still hoped we could avoid compromise. It’s a moot point, now, but had we done so, we might have put some teeth in the IG inspection requirement, thereby ensuring that, in exchange for his telecom immunity, Bush had to accept a real public airing of the ways he broke the law on this. As it is, because we didn’t realize that Steny was negotiating down from the original bipartisan commission that RESTORE mandated, we allowed Steny to turn it into a potentially meaningless sham, even while he was able to use it to coerce some who wanted some kind of accountability in the bill.

I don’t know how to recognize when that moment of capitulation has begun–but in the future, we’d do well to assume that once Steny touches something, the negotiations have begun in earnest.  

Profile all the key players

One of the things I’m happiest about, looking forward, is the Blue America campaign against Steny Hoyer. I think Hoyer is an appropriate target for our anger, not least because he had the gall to negotiate directly with the Administration, shutting out key Democrats in the process.

Still, while we did a  lot of work early on to examine Jello Jay’s funding from telecoms, it seems we forget to consider the fact that our Majority Leader has a district that lies right between DC and Fort Meade, home of the NSA. His district has a lot of work from contractors to the NSA. Take ManTech, which–if this article has any basis in truth, is surely one of the biggest unacknowledged beneficiaries of "telecom" immunity. Aside from DC itself, Steny’s district is the biggest location for ManTech, bigger even than Fort Huachuca and Steny is a top recipient from its PAC. 

Now that should not, by itself, lead to a bad bill. But aside from all the leadership interests in the Democratic party, and those who really did want a compromise, no matter how bad, we ought to have noticed that by far the best deal-maker in our party has genuine constituent interests (and donor interests) in capitulating on the FISA bill. No one ever pretended that Steny was a credible negotiator on this bill, but we could have done a better job, earlier, in demonstrating that Steny had other interests at stake.  

  1. Petrocelli says:

    Kudos to you, Marcy as well as Jane, Christy and the Firepups who kept calling up to the last minute.

    As we organize and plan ahead, we will hit these issues earlier on, gathering even more people together. Imagine if we had 10 or 100 times the number of calls and faxes going out to Congress …

    That’s our responsibility … to grow in numbers and shape the direction of new policy and politicians.

    We need all of you to stay healthy & strong and keep leading the way … I can’t wait for the next battle !

  2. jacqrat says:

    Wow, Margaret. This is such a great post, I had to stop 1/3 the way in to hug you! DAMN I appreciate you sooooooo much. Thanks.

    Something to ponder – late last night I was channel surfing and stopped briefly to see what “THE 700 CLUB” had to say. To my utter surprise, the youngish news commentator was bemoaning the fact that FISA passed with the Telecom Immunity intact. He was very brief, yet outlined exactly why the Executive Branch was overreaching, and now Every call, every email, every time was subject to being listened to…

    It made me sit up straight in bed – wow. “Strange Bedfellows”, indeed.

    • randiego says:

      Yeah, just wait until they get a load of a Dem Pres with these powers… the howling will be loud and long.

    • bmaz says:

      Oh no. Feel bad. Feel mad. Take the bitterness and fury into the future battles. Don’t let it consume you emotionally, but don’t ever forget…

      the sting of defeat propels many a future victory. Michael Jordan was cut from his high school basketball team; he never forgot that ever.

  3. bmaz says:

    As it is, because we didn’t realize that Steny was negotiating down from the original bipartisan commission that RESTORE mandated, we allowed Steny to turn it into a potentially meaningless sham, even while he was able to use it to coerce some who wanted some kind of accountability in the bill.

    I don’t know how to recognize when that moment of capitulation has begun…

    The capitulation started, and quite frankly was pretty much sealed and done, just about a year ago when Congress secretly started discussing and negotiating the PAA and the passed it in August with all of a few days notice to the public. Once the Congress failed and refused to recoil from that by claiming a massive fraud upon them by the White House (which they could not do because it would really have required a call for impeachment, which was off the table), then the die was set. The moment they then passed the extension of the PAA, (and I said this at the time) it was really over. Everything since then has been a necessary and worthy effort on our part, and as you say a great learning experience for the future, but the worm had turned, the deal was done and we were not going to recover it. The all out effort had to be made; but it was doomed to fail. Sometimes you have to fight the losing battles though, just so adversaries know who you are, know you don’t fear them and know that you will fight. You have to prove you can fight before you can prove you can win a fight; this has been my problem with Obama all along, he has never proven he will just flat out fight because it is right. He would rather compromise; well some thing should not be fucking compromised. The Constitution would be chief among that list.

  4. wigwam says:

    H.R. 6304 was rammed through with unseemly haste:
    — It was first posted at 5:12 PM on 6/18.
    — It was submitted to the House at 5:35 PM on 6/19.
    — It was passed by the House at 12:48 PM on 6/20.
    Our allies in Congress have to learn how to derail such efforts. Perhaps we can get them to pledge to vote against any and all legislation that isn’t given a reasonable time for analysis and discussion.

    • Cujo359 says:

      I think that would be a good rule to follow in the case of any non-emergency legislation. Why they refuse to do this is beyond me. Each individual legislator gives up his ability to have an impact on such legislation, which is, presumably, why most of them are there in the first place.

    • jdmckay says:

      Yes. Sure resembles Tom Delay’s way of doing things…


      >Nancy Pelosi’s objection to the program is most troubling. When, on March 10, 2004, the Administration came to Congress and asked whether, in light of Comey’s refusal to reauthorize the program, Congress could do a quickie law making it legal, the Gang of Eight said legislation would be impossible on that short notice, but a majority of those present did not object to the continuation of the clearly illegal program. That’s critically important for the issue of immunity–Congress couldn’t very well advocate holding the telecoms responsible for accepting an authorization from the White House Counsel, could they, if they knew and approved that the program should continue even after Comey determined it legally problematic.

      I don’t know about that… wns.

      Aside from Comey’s objections, I’ve never heard or seen anything WRT WH statements/agreements/claims for cause in enrolling telecom participation. After Junior’s WMD claims (didn’t Powell try and weed out the unsubstantiated claims, and didn’t the remainder fall into same category?), how anyone could give WH benefit of the doubt wrt veracity is beyond me.

      If Pelosi & crew screwed up, let ‘em say so.

      If she was duped by GWB lies (recall ex. Sen Graham FL saying pre-Iraq invasion WH briefings informed SH could hit US east coast w/nukes), then we should know that.

      Fool me once, shame on me… (etc etc).

      Was Pelosi briefed on operational details? For ex., extent to which NSA allegedly exclusively operated/staffed AT&T (SBC) facilities?. One doesn’t have to be a tech guru to perceive the implications there-in.

      Was she/BDs briefed on GWB’s legal rationale presented to telecos?

      Congress could very well advocate holding these telecoms feet to the fire. If they were lied to by Bush, let’s find that out. Feingold’s statement seems straight-arrow enough to me.

      I fully agree w/Selise’s suggestion… that we reward (w/support) lawmakers who stood tall, and punish those who caved.

      I’d note, again from Selise, of her speculative reasons why dem leadership pulled this “Delay”, her # 1

      Some possible explanations are:

      1. They responded to heavy lobbying and money from the telcos who want the suits against them dropped

      Indeed they did. And indeed the 2 previous reasonable HOUSE FISA incarnations did not include the provisions you suggest CONGRESS could not codify.

      I’ve generally been much more supportive of Pelosi than blogosphere as a whole. I lived across the bay from her district for many years, and watched her operate closeup through that time. I very much agreed w/most of her important stands over the years, and never had reason to think she was taking them for reasons other than integrity. Aside from taking impeachment off the table, I’ve considered her performance as speaker considerable more able and effective than reflected in the grass roots.

      This changes all that for me… unforgiveable.

      As I said in response to WIGWAM, this looks more like K-Street than main street.

      I support Selise’s suggestion to punish those who went along, and will commit to some action/hours to do so.


  5. wigwam says:

    During the time between approval in the House and passage in the Senate, the other side controlled and deliberately obfuscated the terms of discussion. This bill was called:
    — FISA
    — “the Compromise”
    — “the improved bill”
    — “the improvement”
    It would:
    — Restore FISA
    — It would save the Fourth Amendment which had been repealed last August (Jonathan Alter in an interview with Randi Rhodes)
    — It was a much better than the alternative
    — It would restore the relevance of the FISA courts.
    — It would put an end to Bush’s illegal surveillance programs. (Obama, Soderbberg, Alter, and others)
    It was urgent that it be passed
    — to allow the continuation of important surveillance tools in the GWOT.
    — Otherwise FISA would expire (Greg Craig)
    — otherwise surveillance programs would expire and the nation would be wide open to terrorist attack which would kill our children
    — otherwise the Fourth Amendment would disappear
    — otherwise the Telecoms would never again cooperate with the government in protecting us against terrorism
    — otherwise our secret methods of gathering information would be revealed.

    Of course, it was all bullshit. But getting control of even the terms of discussion was impossible.

    One of the biggest fiascos of our attempts was the dustup beween Glenn and Olbermann.

    Among other things, we need somehow to get better lines of communication with Olbermann. He is doing an excellent service in communicating a liberal persective to the masses, and he should be on a first-name basis with key liberal bloggers. And, for his own enjoyment, Olbermann should be reading at least Glenzilla on a daily basis. YMMV

    • emptywheel says:

      Excellent points all–probably deserve a category unto itself about the key moments when, in spite of doing an otherwise good job, we lost control of the messaging battle.

      On a related issue, this Diary is quite good.

    • Mauimom says:

      And, for his own enjoyment, Olbermann should be reading at least Glenzilla on a daily basis

      I fervently pray that the dust-up with Glenn will teach Olbermann that Jonathan Alter is not a good person from whom to get one’s information. Keith relies entirely too much [perhaps MSNBC requires him to??] on the talking heads/empty brains of Alterman, Fineman, and to some extent Richard Wolff. Each comes on and “proclaims” what’s important, what has meaning, etc. They get it wrong 87% of the time, because, of course, they’re only reflecting what they, the cocktail weenie-munchers, say to each other.

      Of course this crime is compounded because these idiots write for Newsweek as well.

      The contrast between these rubes and Rachael Maddow + Jonathan Turley is really striking. KO ought to have enough “pride of ownership” that he tried to produce a better “product.”

      And, LooHoo @ 13: it’s not so much the primary-ing of Hoyer [although kicking his butt out would certainly help] as it is getting the House Dems NOT to elect him to the leadership in the next Congress. More and better [particularly better] Democrats should do that.

      • wigwam says:

        Keith relies entirely too much [perhaps MSNBC requires him to??] on the talking heads/empty brains of Alterman, Fineman, and to some extent Richard Wolff. Each comes on and “proclaims” what’s important, what has meaning, etc. They get it wrong 87% of the time, because, of course, they’re only reflecting what they, the cocktail weenie-munchers, say to each other.

        Of course this crime is compounded because these idiots write for Newsweek as well.

        I think I’ve read that Newsweek and NBC are both owned by GE, which views them as “sister organizations.” If so, it’s likely to be expected that Olbermann will feature some of Newsweek’s reporters. And I agree with you about the caliber of their comments.

        It’s been interesting to watch them this past week. All three are visibly wary of Rachel. She gives a lead-ins to her questions that force them toward snswers that will hurt them on the cocktail-weenie circuit, i.e., force them to acknowledge the obvious. They do not like that. Wolffe is a bit more artful at dodging and a bit more willing to enter the world of reality than the other two.

        Alter’s comments to Olbermann on H.R. 6304 were atrocious. This is from a diary that I posted about a week ago at Dkos:

        Per Jonathan Alter, Senior Editor of Newsweek, on Countdown, Wed., 6/25/08:

        “And I actually think one of the big points, Keith, that hasn’t been made about this bill is that currently, as of last August, since last August, we’ve been operating in an unconstitutional environment, clear violation of the Fourth Amendment.

        So, there was tremendous urgency to get the FISA court back into the game. And does this bill do it imperfectly? Yes. But it does do it and it restores the Constitution, which is a point that’s not getting made very much.”

        And, in this Randi Rhodes interview, Alter claims that “In August, Congress temporarily repealed the Fourth Amendment.” But, obviously, an unconstitutional law cannot repeal any portion of the Constitution. It can, however, create a contradiction that prevents the successful prosecution of violations. As noted, the PAA expired in February, and the programs it authorized expire from August 2008 through mid-February 2009.

        Alter’s projected sense of urgency, distress, and concern for the Fourth Amendment and are obviously part of a successful campaign to stampede Democrats, including Barak Obama and Kieth Olbermann — and if he is doing it consciously, he deserves an Oscar. Rather, I think it is an example of the mass hysteria and groupthink that seizes this nation’s politics-and-punditry class.

        Alter sounds as though the Bush is holding the Fourth Amendment hostage and Alter is pleading for us to save its life by paying the ransom that Bush demands: permission to spy on Americans and immunity for his telco accomplices — pathetic, but it seems to work on our Democratic capitulators.

  6. nomolos says:

    I understand that the cabal of eight were not supposed to say diddly but for gosh sakes they knew that the administration was breakng the bloody law. Someone of that disreputable gang should have stood and shouted ffrom the rooftops that there was illegal spying going on. What the hell are the powers that be going to do? Imprison them? The cat would have been out of the bag and a bunch stuff that followed would not have been able to be done.

    Fuck the “rules” if you see that there is treason afoot speak up you yellow bellied pieces of trash!!!

    • Petrocelli says:

      I have someone that I’d like to nominate, perhaps offer her an endless supply of Beamish … *g*

    • Ron1 says:

      The question isn’t whether or not we can find someone to primary Hoyer. The question is, can we organize and mobilize to find the votes necessary to defeat Hoyer once a suitable replacement is found?

      Maryland in many ways is an old-school machine Democratic state. It takes a whole lot more time and a completely different kind of effort to rage against the machine than to organize in places (like resurgent Democratic parties in Virginia and Texas) where a party pretty much has ceased to exist.

      The powers that be in the DC area know that Steny comes to play ball. He’ll have more money than God to fend off any challenger.

      I am absolutely, 100% for primarying the bastard. But that effort needs to start on November 5, 2008, and it will be an 18 month uphill slog with a very low chance of succeeding. Can ew/FDL/dKos, etc., attract and recruit a nucleus of people that know how to institute and run field operations to engineer an upset? The template is next door in MD-04, but Hoyer is a much smarter pol than Al Wynn.

  7. john in sacramento says:

    Not smart enuf to be a lawyer.

    Is not the immunity provision also a violation of the 7th Amendment?

    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

    The plaintiffs in the ACLU case are being denied their livelihood because their sources will not speak to them and they can’t fulfill their job where they are paid monetarily for their work, presumably more than $20 and can’t sue and present facts to a jury of their peers

    • earlofhuntingdon says:

      The trial-by-jury issue only becomes relevant when you get to court, when the case is one federal courts are authorized to hear. The FISA/Fourth Amendment amendments deal with what cases the courts can hear. Actually, it’s a questionable directive to federal courts that they dismiss cases before them on the presentation of facial statements that those courts are not allowed to challenge, only accept.

      So, no, challenging this FISA legislation, more importantly, the policies and monied interests that underlie it, will take more work.

    • john in sacramento says:

      Individual rights to civil trial by jury

      More recently still, the Court relied on a broadened concept of ‘public rights’ to define the limits of congressional power to assign causes of action to tribunals in which jury trials are unavailable. In Granfinanciera, S.A. v. Nordberg, 36 the Court declared that Congress ‘lacks the power to strip parties contesting matters of private right of their constitutional right to a trial by jury.’ The Seventh Amendment test, the Court indicated, is the same as the Article III test for whether Congress may assign adjudication of a claim to a non-Article III tribunal. 37 As a general matter, ‘public rights” involve ‘the relationship between the Government and persons subject to its authority,’ while ‘private rights’ relate to ‘the liability of one individual to another.’ 38 While finding room for ’some debate,’ the Court determined that a bankruptcy trustee’s right to recover for a fraudulent conveyance ‘is more accurately characterized as a private rather than a public right,’ at least where the defendant had not submitted a claim against the bankruptcy estate. 39

      And the sentence after the my bold …

      The Seventh Amendment test, the Court indicated, is the same as the Article III test for whether Congress may assign adjudication of a claim to a non-Article III tribunal.

      Seems to argue for Article Three (the courts) designating “Public” rights since the telecoms were/are acting as an agent for the government (am I wrong?)

      And the FAA (Fu*k All Americans) seems to violate even the Article Three rights

      The new FISA Amendments Act nearly eviscerates oversight of government surveillance. It allows the Foreign Intelligence Surveillance Court to review only general procedures for spying rather than individual warrants. The court will not be told specifics about who will be wiretapped, which means the law provides woefully inadequate safeguards to protect innocent people whose communications are caught up in the government’s dragnet surveillance program.

  8. Ron1 says:

    I think an absolutely linked and near intractable problem is the fact that sitting US Senators (and Representatives) think that they aren’t allowed to discuss their knowledge of laws being broken because it is classified/secret. This Kafkaesque bullshit is at the heart of all of this law-breaking.

    Now, obviously there need to be some classified things — specs of and locations of missiles and nuclear facilities; some CIA activities; signals intelligence sources and methods. But it is absolutely untenable for us as citizens to be able to understand what our government is and isn’t doing when everything is labeled secret. And when we have an executive that appoints lawyers that it can tell to write opinions that it’s fine to break the law, and then hides behind all those secrecy laws and regimes, that’s a hallmark of a totalitarian government.

    Now, one solution to this is finding legislators that know how to interpret Article I, Section VI — they cannot be arrested, and shall not be questioned for what they say in Speech and Debate. If these clauses can be used to protect William Jefferson’s coverup of lawbreaking in his freaking office across the street, they damn well should protect Senator Feingold standing on the floor of the Senate and spilling the beans.

    This is a deep structural problem with our laws right now that need to be addressed if we have any hope of preventing further such abuses. The secrecy laws at the very least need to be balanced with provisions for members of Congress being able to blow the whistle on illegal conduct.

  9. earlofhuntingdon says:

    One thing we should note and incorporate into EW’s framework:

    CongressCritters and their staffs like to deal with finite groups of people, largely insiders. People they know and who share their understanding of the rules of the game. People with whom deals can be struck and against whom retribution can be assessed if they fail to honor their bargain. In fact, their multiple, interrelated bargains that are the daily bread of political life in Metro DC. Which makes this not so much a game of chess, as three-dimensional chess. Lastly, they like to deal with those who have money, which can be used for or against them.

    The NetRoots, like citizens at large, don’t fit that description. So the Villagers try to actively sideline us with wishful epithets like “lefty blogs” and once-every-four-year “accountability moments”. They can’t use us for manipulative or at least predictable or consistent purposes. We’re unwieldy, a basket of roller bearings let loose on the dance floor. Working with us can’t come to any good; it can only lead to a pratfall or a macaca moment.

    They’re also hesitant to work with us because deal-keeping tools, like retribution, don’t work. Except against the occasional successful blogger, like former University of Alabama employee and author of Legal Schnauzer, Roger Shuler, who the UofA recently fired under questionable circumstances. His blog closely followed l’Affaire Siegelman and was openly critical of Leura Canary, whose husband is a UofA trustee and close friend of Karl Rove and the Alabama state GOP.….._0709.html

    So, to EW’s framework. We do have access to money, some. And people like EW and Jane and Christy are standing in for a permanently AWOL MSM. That makes life troublesome for insider deals in DC. As EW suggests, we need to complement that with a positive role. Assisting key CongressCritters and their staffs. And spending money, like that collected for Strange Bedfellows, wisely.

    Dramatically increasing readership wouldn’t hurt either. Makes the snowball rolling down hill at the likes of Steny and Rahm look harder to dodge. In the end, more and better Democrats are about better government. Reagan’s self-debasing and destructive rhetoric aside, we can’t really live without it.

  10. Ron1 says:

    Marcy, et al.,

    I commented on bmaz’s thread yesterday on this topic. I was/am hoping to try and see if this community can spearhead an effort to try and influence the debate on this issue going forward.

    The comment from yesterday is [ here], and I’d love to see what anyone else thinks of it. We need to organize and strike on this topic while the iron is hot. I know I am definitely not as plugged in or as knowledgeable on any of this as Marcy, bmaz, Mary, selise, William Ockham, and too many other commenters here at ew to count, but I’d be happy to be involved in whatever effort we could consider going forward. I emailed Glenn and Jane a version of this idea yesterday as something that could be done in concert with the Blue America PAC (a la the contributions that were disbursed to the 12 people that were on the side of the angels in the FISA fight) to try and organize a caucus of potential new lawmakers next year that we could count on to fight with us on these issues.

    Just thought I’d throw it out there again. It’s not totally on topic with what ew is talking about in this thread, but it is part and parcel of the whole thing. How do we ensure proper public discussion of these issues in our Congress so that we don’t get rolled again?

  11. JTMinIA says:

    One thing confuses me. You wrote something about the Gang of Eight giving their blessing. But my understanding is that the Gang of Eight has no legislative (or otherwise) power; they exist only so that the Executive can report things to Congress. And I wrong about this?

    • earlofhuntingdon says:

      I think that’s right. The question is what are the consequences for having told them. The administration claims doing so “fully informs” Congress, and that its failure to take action affirms or ratifies the administration’s programs.

      I think that’s false. I think so even had this administration — which routinely left Democrats out of the briefings loop on many topics, or gave different briefings to “reliable” Goopers than it gave Dems — fully briefed those eight CongressCritters.

      I read EW’s comments to suggest that the Dem members of this Gang of Eight sat on their backsides and only meekly and weakly challenged the administration. Even on the snippets they were told, the domestic spying and torture regimes were beyond the pale. But it appears that the Dems chose to hide behind their minority and keep quiet, or fully backed what was described to them.

      Only later, when what they agreed to or failed to challenge leaked out, did they have second thoughts. Rather than admit they were hoodwinked, or aren’t very democratic Democrats, they chose to hide the wrongdoing. They thereby insulate the administration and the teclos from liability for having broken the law for years. They also perpetuates a secret, new and lucrative “intelligence services” industry that already claims our government can’t function without them. I imagine that would make Eisenhower and Dr. Strangelove both spin in their graves.

    • emptywheel says:

      You’re right, in general.

      Except for that March 10, 2004 meeting, which is, I think, one of the reasons why Jello Jay was so intractable on this.

      In that briefing, apparently, the Administration presented some of the objections from Comey (undoubtedly without the details about “no legal basis”), and asked whether they could get legislation to cover it legally. The Gang said no. But then they apparently voted to support the Administration going forward anyway. SO on that one occasion, they seem to have given approval–such as it is–to go forward.

    • earlofhuntingdon says:

      More to the point, the Gang of Eight was barred from discussing what it learned from the administration’s briefings with other CongressCritters, prohibiting Congress as a whole from effectively responded to perceived wrongful conduct. The briefings are form of required consultation, without which the administration’s conduct would by definition violate the law. But they ought not be read as if “silence means consent”.

  12. PJEvans says:

    Maybe we’d have some luck convincing them that outsiders like EW can be a good go-to for second (or third) opinions, and can find material that they (or their staffers) would not otherwise know about … in other words, a valuable resource, connecting them with the world outside the Beltway and helping to prevent mistakes.

  13. WilliamOckham says:

    I disagree completely with this post. On the surface, everything that ew says is true, but the post completely misses the point about what happened, why it happened, and, most importantly, what we need to do in the future. The tools that were used to beat us on FISA, torture, the Iraq war, global warming, and a whole host of other issues were exactly the same: secrecy and lying. Unless we attack those, we’ll never win. None of the goals that ew lists can be achieved as long as we acquiesce to the idea that freedom can co-exist with secret government. Nor should we extend the presumption of good faith to those who lie repeatedly about their policies, actions, and goals.

    Let’s take the FISA fiasco as a template. There was no legitimate need for secrecy about the warrantless wiretapping. ‘Sources and methods’, you say. Hogwash. I know exactly how they do it. All you have to do is read the web sites of the various vendors that provide tools for managing and analyzing network traffic. You can start here. But, we don’t want the enemy to know that we wiretap, right? More hogwash. There would be no better way to disrupt the ability of foreigners to communicate to cells inside the U.S. (the putative goal of the warrantless wiretapping) than for them to believe that we could intercept their calls. No, the secrecy was, and, still is, all about preventing us from knowing what the government is doing.

    The secrecy enabled the administration to lie, blatantly, repeatedly, and shamelessly. No one is willing to hold them to account. Every public statement they’ve made has been demonstrably false in one way or another, but nobody cares. Instead, everybody buys in to the lies. Even ew:

    The Administration told us, back in 2005, in 2006, in 2007, and to some degree, even in 2008, that it needed Congress to amend FISA to account for changes in technology (digital telecom) that meant it needed to be able to tap foreign communications from within the United States.

    Go read the Church committee report. FISA was written to prevent the NSA from tapping switches inside the U.S., long before digital telecom became common.

    Here’s a short list of lies that have been unchallenged:

    1. When FISA was enacted nearly all international voice traffic went over satellites.

    2. The warrantless wiretapping involved only international calls.

    3. Overseas foreign voice traffic is commonly routed through the U.S.

    4. Warrantless wiretapping has helped stop terrorist attacks.

    5. Warrantless wiretapping mostly affected people with connections to terrorism.

    (I’m leaving lies that were challenged off this list)

    Until we can build a movement dedicated to the notion that secret policies, secret legal opinions, and secret spending are anathema to democracy we’ll continue on this drunken walk towards constitutional dictatorship. Our ‘victories’ will be fleeting and ephemeral. Our defeats will be one more step in to the mire. The liars who seek power for power’s sake are winning. We shouldn’t kid ourselves.

    • emptywheel says:

      Agree with this completely, WO. I might put it under the “Oversight” requirement.

      But even agreeing we need to end secrecy, how do we do it if we can’t figure out how to influence the legislature?

      • WilliamOckham says:

        We have to move the Overton window. We need to make secrecy the issue. Right now it’s hard to get people to agree that OLC opinions shouldn’t be classified. Here’s some things we need to do:

        1. We need to support people who break the secrecy laws to expose criminality. How many people even know who Matthew Diaz is?

        2. We need to expose these programs as boondoogles. Secrecy is used to hide wasteful spending.

        3. We need to attack un-American ideas as un-American. Government snooping is un-American.

        4. We need to make people ask the question: What are they hiding?

        5. We need to eliminate the ’state secrets’ privilege that has served no other purpose than to hide goverment malfeasance.

        Ultimately, you’re arguing for getting better at dealing with the governing elites. I’m arguing for a populist uprising. The governing elites play by the rules and the rules right now are stacked in favor of the authoritarians. We need to stop playing by their rules. They stopped playing by ours (i.e the rule of law) a long time ago. Everybody needs to go read Dick Cheney’s Iran-Contra minority report. It’s a blueprint for using secrecy, the private sector, and the willingess to lie to create an executive branch unhindered by law or public opinion.

        The institutional checks and balances of our Constitution are no match for the forces arrayed against us. We need to harness the only thing we have left, popular discontent. Populism is no long-term strategy, of course. We need focus it on the real problem, secrecy, and institutionalize effective restraints on governmental wrongdoing. The original FISA represents a failure of the approach you recommend. It was an attempt to tame the secret government instead of eliminate it.

        • earlofhuntingdon says:

          One thing I like about your proposal is that it recognizes that the mythical center around which politicians like to compromise – like first graders playing soccer – is a moveable feast.

          For fifteen years, the right has made itself the center, so that now, amending the Fourth Amendment by legislation and sanctioning torture as state policy masquerade as valid compromises.

          A “popular uprising” is popular but not an uprising. It is simply American citizens objecting to the Village elite’s usurpation of their government for their exclusive interests. The “silent majority” that Nixon invented is actually in play here. Perhaps blogs, and blog-based communities, can teach us all to bark, and to push back the night one shadow at a time.

        • masaccio says:

          I want to agree with your thinking: “We need to harness the only thing we have left, popular discontent.” I’m not sure there is any popular discontent on the issues that matter to us, largely because I think most of our ill-informed fellow citizens really buy into the repub spin on government competence on intelligence issues. And I don’t see any way to stir people up now, if they aren’t already.

          • WilliamOckham says:

            There’s not any popular discontent on these issues yet, but that’s our fault, not our fellow citizens fault. Let me explain. How many people think our country’s on the wrong track? Nearly 80%. That’s mind-boggling to me. I’m 48 years old and I’ve never seen anything remotely like that, even at the height of the Viet Nam war protests. Unlike then, the discontent is amorphous and inchoate. We need to provide a focal point for that discontent, a unifying theme to turn that unease in to an uprising.

            The notion of a secret cabal running things for their own benefit at the little guy’s expense is extremely powerful. It just happens to be true right now in America. Whip up enough of that trope and the bozos in Washington will be glad to pass some serious anti-secrecy legislation to prove they aren’t the bad guys.

            I realize this is a dangerous strategy, but I’m not sure what alternative we have.

    • earlofhuntingdon says:

      Valuable post. I would add that the New York Times’ editorial board prohibited Paul Krugman from calling the President or Vice President “a liar” or using “lie” in his description of administration claims or actions.

      Even after Judy, Judy, Judy, after Jane Mayer and Sy Hersh’ reporting, the Times, our self-proclaimed newspaper of record, insists on euphemisms to hide the brutality of the administration’s conduct. Scott Shane today edges slightly closer to a valid description of waterboarding, but as he’s done consistently, he refuses to go all the way. He calls it,

      a practice in which water is poured on the nose and mouth to create the sensation of suffocation and drowning.…..uIdptGGz3A

      As many have pointed out, there’s nothing simulated about this form of torture. It induces suffocation and drowning, not the sensation of it. Whether it leads to death depends on the skill of the torturer (and why would our people be skilled at it?), the stubbornness and health of the victim, and luck.

      Glenzilla today echoes your point. We have collectively accepted a lawless American government. (This blog’s readers would say, along with Tonto, “What do you mean ‘we’, Kemosabi?”) But like the French without Zola, we cannot admit our government is capable of such heinous, brutal error. It would irrevocably shatter our belief in our innate goodness of purpose, our exceptionalism. Better that Dreyfus remain on Devil’s Island, better that we live in terror of our own government as well as foreign criminals, than that we shatter the fiction of our government’s infallibility.

      The Framers assumed all governments, like the men in them, were fallible. Hence, the Constitution they crafted. It and this democracy are made of much stronger stuff than the Times admits. In reality, what I think the Times hopes not to shatter is the invincibility of its own place in the shifting, blog-infested heavens, and the facade of how business as usual is done in our name, and who makes money at it. We’re fighting the same war as Mark Twain and Upton Sinclair, still battling the advertising slogans that tell us, “Just buy the sausage. Never ask how it’s made.”

  14. masaccio says:

    Ron1: so here’s a story. Several years ago, when the bankruptcy code was being revised, the Chapter 7 Trustee organization thought it would be only fair that if the work of the trustees were going to be increased by the bill (most trustees had to increase their staffs to manage the increased workload), then the per case fee should be increased. The lobbyist said that it would be necessary to contribute to the campaigns of the people he wanted to see about the increase, and asked the members for a PAC like organization.

    The moral: we need money to fight back. Lots of it.

    • Ron1 says:

      I do agree we need money, but it’s going to be much less than the other side. The question is how do we leverage more limited resources.

      This is why I think we need to start by trying to get a foot-hold in the Congress by supporting like-minded candidates that are with us on the surveillance/privacy/secrecy issues, and go from there. The Blue America PAC effort is already trending this way, and would enable us as a community to begin to get better people into Congress, especially this cycle.

      There’s no quick or easy way around the scenario you just described. Vigilance, effort, time, and reforming the system are the only answers. Roll up your sleeves, and all that.

      • masaccio says:

        I don’t disagree with your approach. I just want to recruit and focus bigger dollars than the relatively small sums we raise on Blue America. I suggested to Howie Klein that we should try to identify the large givers to Blue America, and try to firehose those givers on a small number of our best candidates, this of course because I was furious with two of the Blue America candidates, McInerny and especially Chris Carney. I volunteered to do some calling my own self, which I assure you was very unlike me. But Howie seems happy with what he is doing, probably because it enables many people to get involved in retail politics, especially virtual phone-banking, and they feel a bigger connection when they buy into the campaign with their hard-earned dollars.

        When we saw how much Obama could raise on the internet, I thought maybe we were accomplishing something to replace the big-money interest in presidential elections, but now we see he is out courting the big money. I hope he is doing it to deny the money to the repubs, but somehow I doubt it.

        I continue to believe this is a really good idea. There is a lot more money in progressive circles than we might think.

        • Ron1 says:

          I think you’re absolutely right about the need to move the decimal point at least one, hopefully two or more, spots on the fundraising spigot to influence these deals.

          There are also ways to do all this in parallel with the BlueAmerica efforts. Fact is, I don’t have any kind of legitimacy or platform ’cause I’m just a DFH commenter on a few blogs, not even really a blogger. Doing things in concert with the BlueAmerica effort is the only way that seems feasible to me at this point and time, and I’d rather see returns on investment sooner than later. Plus, the more supporters in terms of congressional candidates that we get on board, the more momentum there is. And there do seem to be a lot of very good people running this cycle that might jump in on such an effort.

  15. maryb2004 says:

    Excellent post. And let me say that I think you’ve been outstanding on this issue all along. There’s a lot to digest here but what strikes me first is this:

    But we didn’t make a concerted effort to, first, make it clear precisely what the Administration was demanding (to his credit, Russ Feingold, even limited by secrecy rules, was able to do this the best). Thus, while many people were opposed to telecom immunity, we never really generated the public opposition to massive data mining that (the history of TIA makes clear) is fairly easy to develop in this country.

    Although I’ve followed the FISA debate closely, one thing was never clear to me. I never figured out who put together the strategy to use telecom immunity as the main talking point for mobilization and why data mining wasn’t used instead. I can see why that might have seemed logical but I’ve never been clear how that strategy evolved.

    By the time I noticed in January that it was a strategy and started to post comments (at other blogs) saying that I thought the data mining aspects would be a better avenue to generating outrage among the populace but it wasn’t being covered as much or as closely, as immunity — it was clear that the train had left the station and immunity was the story and it wasn’t going to change.

    I think this evaluation needs to consider where strategy originates. I don’t know the answer to that since I’m not a blogger, just a commenter.

    • emptywheel says:

      One of the problems is that few people really believed that data mining was the key. In particular, there was a NYT story–timed just before the PAA debate–that some people believed was a head fake away from other problems with the program. There was, for much too long, too little imagination about what it might mean to base a program like this on datamining, and as a result, it wasn’t until much later that everyone believed that was part of this.

      • maryb2004 says:

        I think what you are saying is that as the strategy for fighting FISA developed, there wasn’t consensus that data mining was a real issue or, if it was an issue, that people would believe it was an issue and so telecom immunity was picked as the main talking point to mobilize around.

        I just re-read that and I think I might be missing your point. Because what I just said presupposes a set strategy rather than a strategy developing organically. And that goes back to my original point – that how the strategy developed should be looked at before the next legislative battle. Since I’m not privy to how the strategy developed, it’s hard to comment intelligently on how the strategy could have been different and taken on the future warrantless wiretapping issue as well as the past bad acts of the telecoms and the Bush administration (and how they tied into oversight for future warrantless wiretapping).

        But I continue to think that how strategy develops is a key issue. And I’ve thought all along that if there is a strategy in play, that admitting to that strategy is important so that readers know what the strategy is and can adapt it offline when mobilizing others to take action.

      • earlofhuntingdon says:

        Data mining, of course, is a longterm goal of the intelligence services industry. Those providers are rather like a 1950’s Boeing telling Congress we can’t possibly defend ourselves without new fleets of bombers, oh, and the ICBM’s, which they coincidentally already have on the drawing board. Just sign the check, here, please.

        Likewise, actions like the FISA/Fourth Amendment amendment legislation seed and fertilize a powerful new industry. It’s as secretive as the Skunk Works. We know little about who the purveyors are, nothing about the contracts under which they do business, nothing about how dependent (or not) we are on these new, outsourced providers. We know nothing about what restrictions, if any, apply to the private use those providers’ may make of the data they collect and manipulate for our government.

        We have only an inkling of how KBR, Halliburton, Blackwater, et al., have superseded the roles of our armed forces abroad and our national guard forces at home. We know less about what these intelligence services providers do, and nothing about the cost. I think that’s a lot more dangerous.

        Who wants to bet on how big the dossier is on Jane Mayer? Sy Hersh? EW, Christy and Jane?

        • Minnesotachuck says:

          Data mining, of course, is a longterm goal of the intelligence services industry. Those providers are rather like a 1950’s Boeing telling Congress we can’t possibly defend ourselves without new fleets of bombers, oh, and the ICBM’s, which they coincidentally already have on the drawing board. Just sign the check, here, please.

          Don’t forget the third leg of the stool. I’ve read (don’t recall where and am too lazy to look for the cite) that an early draft of Eisenhower’s Farewell Speech referred to the “Military-Industrial-Congressional Complex”, and that a political advisor struck the third term from the equation in order to not piss off the folks on the hill. The money that the Industrial leg brings to the Congressional leg’s campaign coffers greatly diminishes the national security establishment’s ability to craft rational national strategies just as much as do the various domestic interest groups that lobby on behalf of political factions in foregn governments. (e.g. American Jewry on behalf of the Likudniks in Israel since the Six Day War, and mission-sponsoring Protestant churches on behalf of the Chiang kai-shek regime in China and Taiwan from the late 1930s through the early 1960s) Marcy’s penetrating post, as well as many of the comments here, are object lessons why a key progressive goal must be to diminish the influence of money in politics.

      • janinsanfran says:

        Very late to this discussion, but I need to throw this in here. I don’t think even most of us who opposed this legislation understand the magnitude of the social and political changes that the cheap and easy ability of the state to capture communications implies.

        Some of the ineffectiveness of our campaign arises from not having adequately grasped what is going on here.

        Wrote it all out here if anyone is interested (not, IMHO, just tinfoil hat stuff, but you be the judge):

  16. spiny says:

    as usual, your insight is spot-on. Thanks for all the excellent reporting and analysis you have done on this topic.

    As you suggest, on issues dealing with secrecy and national security, the argument ends up being very one sided. The security state, and those that have to work under its rules, has grown enormously in the last 20 years- it is not just a reaction to 9/11. Unfortunately, the “security” paradigm can conflict in very many ways with a healthy functioning Democracy- especially when there is money to be made. I believe that there is a very real need for government (and industry supporting government efforts) to keep certain things secret, and I think you will find wide spread support for that view- but there also needs to be a robust enough system in place to make sure that abuses don’t occur. Our Democracy was built on checks & balances between the three branches of government, but the executive branch based classification system seems to be exempt from this basic requirement. We really need to have a debate about this issue, but Congress & the corporate media appear to be enthusiastic supporters of the the secrecy fog that is drifting into more & more aspects of our democracy.

  17. MadDog says:

    EW, I would add one (at least) recommendation:

    If folks want to be able to influence the debate, the actions and the results of our Congresscritters, you can’t afford to wait until that particular hot button issue that “gores your ox” comes up.

    If you do, you are far, far behind the curve, and likely to fail just because you stand at the end of the line wrt to influence.

    Another way of putting what I’m saying is kind of a take-off on that old bromide of “Vote early, vote often!” My take-off is “Buy early, buy often!”

    Yes, it is crude, but the point is we need to have our leverage in place and well oiled prior to any issue arising that we need the votes on.

    Some folks will object to the very idea of buying Congresscritters. Their objections are not unreasonable:

    1. Congresscritters shouldn’t be for sale!
    2. Congresscritters don’t stay bought!
    3. Bribery is against my religion and/or ethics.

    But the facts are:

    1. Congresscritters are for sale.
    2. While Congresscritters don’t stay bought, they do respond best to the last folks who give them more than a thimbleful of money.
    3. Congresscritters listen to the folks who pay their bills.

    I’m not saying we should be passing beacoup bucks under the table. I am saying that the financing of Congresscritters by every and all legal means works!

    If we choose to only provide the Congresscritters with bromides about principles and just governance, we lose!

    If we choose to only provide the Congresscritters with financing when an issue arises, we lose!

    We need to provide both the reasoned rationale for principled governance as well as the financing to sit at the table.

    Otherwise, at best, we can only hope to get the crumbs (literally and figuratively).

  18. earlofhuntingdon says:

    We may not be able to force the government to do a U-turn on their widespread, suspicionless data collection practices and the lucrative industry now pushing for it. Obviously, many CongressCritters on both sides of the aisle, despite the Fourth Amendment, agree we should be collecting wide swathes of data. (Assuming they have a clue what that means, for us and their own communications.)

    One alternative is to demand effective oversight of it. The FISA amendments gut that; let’s get it back. I don’t mean looking over the shoulders of the analysts, the geeks and the server farm managers. I mean the big picture. One issue is cost. It must be a bundle. Another is the procurement process. What’s in the contracts (or should be)? Whose Congressional district (or foreign friend/enemy) gets the tax dollars? Another is cross-uses of data for domestic crime purposes. For what purposes should it be permitted? Tax collection, credit ratings, employment or health screening, etc. Right now, this administration wants no regulations (as it does across the board) so that its vendors can do WTF they want.

    All in, the list must be pretty long. Looked at broadly, it merits another Committee or Subcommittee. That yields fights over assignments, patronage, tit for tats with committees that may lose out, etc. Stir the pot, cook the stew.

    Many CongressCritters, the sausage makers, will hypocritically say they don’t want to know what government collects or what they do with it, but will approve it and its cost anyway. Those are the folks who should be at the receiving end of our ire.

  19. masaccio says:

    Money is one thing. The strategy issues are more complicated. EW is exactly right that we are dealing with legislators. Consider some of the potential motivations.

    1. Many dems probably actually believe that they were doing the right thing on the whole spying thing. They believe that the intelligence community is competent, and that if we had something like the total information awareness program, we would be much safer.

    2. There is the cynical perspective: they want to be re-elected, and won’t take any chances.

    3. There is the middle ground. They haven’t thought seriously about the problems, want to do the right thing, and can be educated.

    This last group, if it exists, is the one we have to identify and focus on. This approach requires us to have a clear and workable strategy to replace the idiocy coming from the neo-cons, the neanderthals at the federalist society, the Texas and California right-wing billionaires, and all of their media apparatchiks.

    The internet is great for organizing reactive politics. It is a lot harder to organize for creating alternative grand strategies. On the positive front, I see that this blog sets the pace for actual work on issues, and it may well be possible to use the methods developed here to generate a alternative approach.

  20. masaccio says:

    EW’s point about the desire of our legislators to compromise is one of the more sordid aspects of the collapse of legislative vertebrae. There has been no reason to reach across the aisle on any matter of national security for the last 24 years, and little reason to cooperate on any other issue during that period. Obama’s spoken justification for voting for FISA was this idea of compromise. It bodes ill for the future.

  21. MrWhy says:

    A handful of points.

    Briefing of G8. It needs to be clearer to members of the G8 who has been briefed on what (individual briefings must be a last resort) so they can discuss amongst themselves issues that may need a wider airing. Members of G8 need to be able to say e.g. “I will discuss this with the full G8 a week today, you have until then to brief them”. If there is clear indication of lawlessness, then the G8 needs to be able to publicize the evident lawlessness.

    Compromise. I agree wholeheartedly, almost. =-) Compromise isn’t capitulation, it assumes both sides are willing to move. This administration has discovered that it rarely needs to compromise, although “What I tell you three times is true” is being called into question more often these days.

    MSM. I find KO’s rants distracting at times. “If he’s so angry, surely he can’t be rational.” I suggest Jon Stewart and Stephen Colbert as other voices to keep briefed. Humour has a way of making important points comprehensible and less threatening. Rachel Maddow does this well. It would be wonderful if she had a regular slot in the MSM.

    Obama. Assuming he’s the next POTUS, people should be working to ensure he has good people as advisors and cabinet members. If he listens to his constituency, find ways keep his constituency informed whenever possible.

    Us vs Them. We have to work to clarify who Us/Them are. As long as The Terrorists are demons, anything we do to prevent The Terrorists from succeeding will seem rational to some people. I just finished reading MacPherson’s “All Governments Lie”, and one of many things that impressed me about Stone was his early recognition of the necessity for Israel to reconcile with the Palestinians.

  22. TobyWollin says: two and a half cents on the FISA battle. For five years, I was doing what was coyly referred to as ‘competitive intelligence’ for an economic development department for a large regional gas and electric utility in Upstate New York. People asked me all the time what my job was and I used to tell them that with regard to a company’s either leaving the area or coming to the area, that my job was to throw as much rocks and dirt in their way that they were slowed down enough that they just might listen to our pitch and our arguments(and might read the dirt on the other locations and actually digest it instead of merely taking the “We hate NYS” or “NYS has unions and we only want right-to-work states” or whatever). We knew if we could not slow them down, there was no way we would have a shot at winning. From last August on, our job as citizen activists has seemed to me to be one long battle to slow things down and get enough info out that more people than just us DFHs were aware and fighting this. And from that measure, we won. Yes, the boneheads in Congress passed this compromise bill, but the fight got coverage, it got other people other than us involved and aware of just how dangerous the whole situation(not just THIS particular piece of legislation..the entire spying and Constitution threat)is. And to my way of thinking, that is just a huge win … it is brining, as you say, a whole lot of people together who never thought they’d ever have common cause with us.

  23. Blue says:

    While I agree there are things we could have done differently, I question whether it would have had any effect on the outcome. I can’t help but think of the unspoken in Dodd Speeches when thanking the many progressives that stood with him in this battle (i.e., it would have been nice if a few of you showed up with me at the polls in Iowa or New Hampshire).

    80% Wrong track isn’t anything – congress has a single digit approval rating for the first time in history. The Democratic leadership has seen to it that Bush/Cheney & The Repugnicans aren’t even going to get the full brunt of the blame.

    • MarkH says:

      The Democratic leadership has seen to it that Bush/Cheney & The Repugnicans aren’t even going to get the full brunt of the blame.

      That’s a little bit harsh. It can’t be easy for the Congressional Dems to get things done with Mitch “let’s filibuster” McConnell and George W Bush in the way.

      • bmaz says:

        Yes. Of course. The Dem Leadership has fought the good fight. Done all they could really do.

        Seriously, where do you come up with your relentless litany of namby pamby pablum?

  24. surfer says:

    Just sent a letter to a local paper after days of seething over this FISA betrayal. It may not be published but it makes me feel better:

    Dear Editor:

    Senator Akaka deserves our gratitude and a standing ovation for his heroic stance on the so called FISA Compromise Bill. He was one of only 28 courageous Senators who stood up on July 9, 2008 to protect the Constitution of the United States.

    Senator Inouye, not so much.

    Senator Inouye is a war hero and true patriot, and therefore it is puzzling why he would vote in favor of weakening the Constitution by taking away the protection of unreasonable search and seizure.

    Two possibilities occur to me. One is that he was ill served by his advisers and didn’t realize the horrific nature of the bill. Perhaps his advisers, and maybe the Senator himself, believed the vigorous defense of the egregious bill to amend the Foreign Intelligence Surveillance Act.

    But by now it has been shown that these defenses, which unfortunately play on our fear of terror, are weak and based on erroneous logic and outright falsehoods. These false arguments have been so convincingly destroyed that only those who are ignorant of the facts would still try to defend it.

    As terrible as this first possibility seems, the second is even worse.

    The Director of National Intelligence John Negroponte, in a letter dated May 17, 2006 to then Speaker Hastert, revealed the names of thirty-some Senators who were briefed on President Bush’s illegal wire-tap program. As Chair of the Defense Subcommittee of the Senate Appropriations Committee, Senator Inouye attended a briefing at the White House on December 4th, 2001.

    Now to be fair, Senator Inouye was not the only Senator who did nothing about this illegal program after he found out about it. In fact, of all the Senators who attended the briefings, only a handful had the courage to stand up and say “NO!” to the criminal activities of Bush Administration. Nevertheless this possibility must be considered; did Senator Inouye vote to retroactively make this program legal on July 9, 2008, did he go along with this illegal program because he, like others, had, at least by virtue of not mounting an effective opposition to the program, bought off on it?

    I believe our good Senator, whom I respect and admire, owes us an answer to this puzzle.

    • CTuttle says:

      Right On, Bra! Shaka! I tried to link a local AP article on both their letters they wrote in Response to their respective votes… Night and Day in tone and intent… Inouye preached security and the homeland, Akaka stated that the 4th Amendment was being shredded… Inouye had better retire…!!!

  25. masaccio says:

    I think there is solid evidence that a sordid cabal is running things for their own benefit at the little guy’s expense. Thomas Frank is the latest person to raise this issue with this article in the latest Harpers. And see Ian’s post today at the mothership, based on an article from Gretchen Morgensen in tomorrow’s NYT.

    I used to read Forbes Magazine, when Malcom ran it. There was a strong thread of hatred for FDR and the New Deal, and Malcom fed it regularly. This is the group of crazy Texas and California millionaires who spent their entire lives trying to destroy the liberal form of government, and move to a market state, a state run by money.

    It may be that pursuing this aggressively is a dangerous strategy, but at least it has the benefit of being honest.

  26. NorskeFlamethrower says:


    Citizen emptywheel and the Firepup Freedom Fighters:

    What a most excellent post, you and Citizen Selise share a Golden Norske Medal of Freedom for your work on this issue …how ’bout you two start a think tank for the study of politics and the law…maybe name it the “FDL Institute of Freedom and the Constitution”?

    I am heartened by your ability to find the pony in all this horseshit and I am particularly interested in how you would propose we get new committee chairs in both houses without a change in leadership: the top 2 in the House and at least the leader in the Senate. Also, I am interested in who you think Obama is gunna pick as VP…in my opinion he can’t afford ta choose a Senator and there aren’t any governors with the gravitas AND a national political constituency. In my mind that leaves one Al Gore as the only candidate who would bring a national constituency AND strengthen Obama’s first two years and his ability to govern and get legislation passed. After all, he knows where the bodies are buried.


  27. Adie says:

    Thank you Marcy.

    [Power outage most of the afternoon here, so haven’t had time to do more than catch up with laundry for visiting dear sonny, sigh.]

    I look fwd to reading your whole post, as well as all comments ASAP. This is one of the most upsetting occurrences in my 65+yr lifetime. I’m just sick at heart.

    My low-voter-information neighbors are just sick at heart. I will try to capture the essence and translate for them, so they can continue to spread the word. They always vote, and they want to vote responsibly. They are hurting badly, and would like to know why, although they have strong and remarkably accurate suspicions as to cause and effect.

  28. rwcole says:

    Obviously, if an incompetent president can’t spy on americans we will all die from terrorist attacks. Everyone knows that.

  29. KayInMaine says:

    Well said, Emptywheel! This post should calm the waters for awhile, because when we do sit down and think about it, we’ve been dealing with assholes in the House. We can do better and will work hard to kick these assholes out!

  30. Sara says:

    For several weeks I have been thinking — what was missing here in the FISA fight, and this effort to walk back the cat, find what went wrong, do Lessons Learned — Just excellent.

    Let me project out a little on Organization.

    I think what we need is something I will call the Fourth Amendment Society. It would be roughly modeled on the NRA, and their approach to the Second Amendment. On one level that is a membership organization of concerned Gun Owners, but on another level it is a Highly Effective PAC, that endorses and condemns candidates at all levels, provides some campaign contributions, (not as much as you might think), but it is a “Good Housekeeping Seal of Approval” for voters far beyond the membership of the NRA. What makes the NRA effective is the billboards and the broadsides that claim Candidate A wants to protect your Gun Rights, and Candidate B wants to give Government the right to take away your guns. We can do precisely the same thing with the Fourth Amendment.

    A Fourth Amendment Society properly structured, could be an Umbrella sort of organization which could coordinate with many other groups on a variety of issues — and yes, do press releases, perhaps create a web-site that would boil down issues such as FISA into Q & A’s that voters looking for less specialized and detailed information and debate could rely upon.

    My guess is that a Fourth Amendment Society could recruit Legal Faculty, Law School Students, with some ease. Likewise, because it would not be only about electorial politics — in fact it would I suspect be easy to make it very bi-partisian, it might not be all that difficult to raise a donor base that would work something like a membership fee, adequate to sustain a mostly volunteer, but perhaps partially staffed outfit.

    Anyone else have Ideas along this line???

  31. libbyliberal says:

    Thank you, Marcy, and FDL, for the insightful leadership. I need to print out this post and reread a bunch of times. And Selise’s diary.

    Building a fire under the public about this issue was confounding. Maybe the public doesn’t get the foundation of facism. Maybe the drugstore datamining discounts have made them immune to privacy sensitivity? Add MSM minimizing the issue, and all that money from the telecom “patriot” companies … (was that Blue Tidal Wave report of contributions on the money? Holy…) … And citizen burnout from too many “fresh hells” c/o Bushco.

    suggests Obama recognizes that he took our efforts too cavalierly

    Grrrrr. Hard to get over that one, that “cavalier-ness”. Whenever I fight to fathom his vote, the anger rises up in me. He could have helped lead the charge, or at least helped Feingold and Dodd lead the charge. He doesn’t seem to be willing to make coalitions with any comrades to his “left” apparently. Or is unwilling not to be the prime player, though he is now! (He had to sacrifice principle in order to try to win the election. “What doth it profit a man, etc….”)

    Gail Collins who wrote that apologist article about Obama being the uniter and WE AREN’T LISTENING HARD ENOUGH was on the Brian Lehrer show in NYC … and concluded absently something like, — well the FISA vote, it’s not like its going to effect one of our amendments … like the second (I know she listed that one .. and then maybe the first was it?). She omitted the 4th, which Brian dryly finally suggested to her … that was the one people had fears about. SHE wasn’t listening. Sounded like she didn’t understand the nature of FISA or the nature of the amendments. We are all getting a hard-won class in American history and constitutional law these days. Well, some of us, anyway. The rest exercising our right to “truthiness”, I guess.

    Anyway, the good news is that activists got further activated. And we got up close and a little more personal with those who represents us. (I now carry a telephone list of senators and reps in my pocketbook on a need to call basis … and the frequency seems to be increasing rapidly). And I am memorizing the list of 21 who did defend the constitution and calling to thank them.

    Thanks again!

  32. cando says:

    Thanks to all of you for thinking about how to approach the next fiasco. My point is not sophisticated, but to hear the Congresspeople talking about their vote, they implied the public didn’t know about FISA and didn’t care. I think the public did know. Will never forget the a. m. I woke up to every caller on C-SPAN’s Washington Journal opposing the legislation, when usually calls break down Repugss vs Dems. Figuring out how to get much better media coverage is one of our challenges, and we need to organize more broadly. I think FISA is an issue the public understands and is very unhappy about. Can we get the next president and Congress to nullify what was done to the 4th Amendment?

    • KayInMaine says:

      I believe a good portion of the public had no idea what was going on with FISA and was too lazy to research it if they did know. Besides, how many Americans knew it was the Clinton Admin who approved the largest database to be created that ole Georgie is using today to gather our information? Not many.

      For some, watching C-SPAN is like watching paint dry, but for the rest of us, we care enough about our country & our Constitution to watch it for hours, so we can report it to others. We rock.

  33. Eureka Springs says:

    OK I am only half way through this thread..

    Marcy, excellent post and like Selise and others, we need this time to reflect on our successes and errors and regroup in prep for many battles ahead. We will most certainly be caught a bit to late in many games ahead and need to admit it to ourselves and regroup accordingly. Knowing when and how to do that, along with what to do, is essential.

    I agree with bmaz’s point about PAA passage last August and months later extension of it were the end game, sealing immunity and legality’s fate. And the following battle was a must fight for all of us who have some understanding of what was a stake.

    Thank you so much, WillamOckam for your first comment in this thread. Spot. on.

    The more I think about it.. William’s points about no secrecy and truth (openness) and the progresso-sphere’s embrace of civil liberties is one of our greatest strengths for garnering more support from other political factions on a myriad of issues in the near and long term.

    We must demand truth and liberty.. if we win on those fronts and stay clear about that… the debates and their inherent framing in days ahead will play out on much more level playing field. Open and available facts in front of all involved who care to see them are key to the governing for the common good. And that in a nutshell is all I could hope for now and for the future of my country.

    I understand why we went for immunity so late in the game.. we were desperate, looking for a poison veto pill. But that should not dilute the fact we were lied to *repeatedly* by most, to many of whom we thought were on our side.

    Posts and threads like this remind what an honor it is to be here with you all.

  34. hate2haggle says:

    I think rather than starting another group, cuz my inbox is full of progressive causes, we should consolidate and speak through less voices. At the same time expand our population. How about bumper stickers with a catchy phrase and the number 202-224-3121 for the capital switchboard. I just today set a new entry with that number in my cell phone, yet I know I called at least 200 times to my senators and probably yours, too, from my home phone and never once called from my cell. But we need thousands and millions of people doing acts as simple as a phone call to their congress critters. My .02.

  35. Cujo359 says:

    Significantly, instead of thinking of ways to explain what an acceptable compromise and an unacceptable compromise would be, we usually insisted that there should be no compromise.

    I have to disagree with this statement from your excellent article, EW. Each side in a negotiation has things that it cannot give up. What we did, perhaps not always successfully, was to say what those points were for us. Compromise, in such cases, means finding acceptable alternatives. The Administration’s, and the Democratic “leaderships’”, was “my way or the highway”. They could have had an acceptable bill without the things we objected to. They chose not to.

  36. Loo Hoo. says:

    Breaking, via DKos:

    I am learning to get online myself, and I will have that down fairly soon, getting on myself.

    Yup, McCane goes all whack-a-doo.

  37. nahant says:

    Marcy thanks for this update and explantion of the dirty deeds that transpired to rob us of of right to privacy… Next the whole constitution will be trashed… this is just one step towards making this a Corporatist (think Fascist) country!!

    Hey pups you all Digg this post why don’t you try Spotlighting it to get the Post to a wider audience??

    WARNING: Due to Presidential Executive Orders, WITH CONGRESSIONAL APPROVAL, the National Security Agency may have read this email without warning, warrant, or notice. They may do this without any judicial or legislative oversight. You have no recourse nor protection save to call for the impeachment of the current President, 69 members of the Senate and 293 members of the House of Representatives.

  38. amilius says:

    ‘Blue Dog’ Democrats seems inappropriate given the snarling cowardice of these legislators and their disingenuous justifications. Might “Yellow Cur Dems” be more fitting?

  39. wagonjak says:

    Fuckin’ Great EW…thanks for a long thoughtful FISA post with some positive suggestions for the future…

  40. klynn says:

    I also think the broad base of coalition building needs to happen sooner. I did not have success reaching individuals until the League Of Women Voters stepped up to oppose FISA. When people I talked to felt there was finally a broad base of support across the spectrum, that was when I reached the most individuals on the street…progressives, moderates, independents and conservatives…but THAT reach happened late in the game… Perhaps in the process of identifying the terms of debate, we couple that with how we “pluralize” the terms of the debate and strategy to build a broad base early on.

    • ImaPT says:

      I agree with you. For something like FISA and immunity, where we are talking about civil liberties and Constitutional issues, we need to remember that there are individuals/groups across the political spectrum who are just as concerned as we are (think Bruce Fein, Bob Barr, Ron Paul and others). They are our adversaries on most issues, but at times they can be allies.

      We need to form broad coalitions (like StrangeBedfellows) with these other parties as early on in the fight as we can, so that we can achieve the critical mass that is necessary to win something like this.

      P.S. – I think it is great that Emptywheel, Selise and others are conducting these post-mortems. This retrospection will help us in future battles. It is very heartening to see the netroots dusting themselves off after this (temporary) setback and doing what it takes to get ready for the next fight.

      They and the other inhabitants of FDL, along with Glenn G., the folks at Dailykos and many others are the Paul Reveres of our time – true patriots. Thanks for all you do!

  41. Valley Girl says:

    ~~The person who was going to run the Obama group in my hometown has decided he is no longer willing to do so after Sen. Obama’s FISA vote.~~

    snip from a dKos diary.

  42. ubetchaiam says:

    I am waaaay late to this but I would address some of Christy’s points.
    “We need to get better Democrats on the intelligence committees”—-concur but how? especially given the Senate’s Seniority Rules?

    “We–along with our coalition partners–did an amazing job at moving public opinion on this issue.”—- Have to disagree; MOST of the ‘public’ didn’t give a damn or were still buying the framing of ‘national security’ per Republican points. It still amazes me that even Obama with his rhetorical skills couldn’t change the framing of the ‘debate’. I can only conclude is that the Dems have a vested interest in retaining the ‘frame’.

    “We never challenged the Administration’s contention that the data mining aspect of this program was effective.”—there were some voices but the ‘netroots’ never picked up and ‘carried the water’.

    I would also add that the issue of abridging the Constitution and not taking on the 2nd Amendment argument was also an area that could have been improved. MOst people I have spoken with respond very well to the idea that ‘we do not want a king’, even if they are buying the Repub framework for ‘national security.

  43. Sara says:

    I suspect many defense attorneys would have an interest.

    I frankly would play off old Sam Ervin who long defended the 4th Amendment, and look at who aligned with him, as he clearly built a national coalition that was very eclectic. He had the Mental Health people, the Medical Records people, those who wanted to regulate records that could be accessed for credit (things that had nothing to do with credit worthiness and bill paying history), he fought Nixon’s no Knock laws, even back in the 60’s, he fought the FBI on Library Records, and he fought Hoover on Internal Security records in old FBI files. — once you start nameing these, you realize all of them have organizations that work on this and that in a fairly uncoordinated fashion. Librarians fight the privacy of their borrowing records, Schools fight for privacy of student transcripts — but they are not really informed about more basic 4th Amendment issues, and they are not making common cause. The whole point would be to create a very large Umbrella, sufficient that it could be the kind of player on the 4th Amendment that the NRA has been on the 2nd.

    So to the League of Women Voters, add Librarians, Teachers, Social Workers, Mental Health Professionals, and the usual suspects such as the Defense Bar and the ACLU. Pretty Soon you have a decent sized coalition.

    You get something like the recent bill regarding the use of genetic testing results by Health Insurance Companies — very tightly drawn, so tight in fact it may be meaningless. The larger issue of the use of DNA profiles without the owner of the DNA’s permission gets lost. If you have a larger coalition, such matters have a much more impressive constituency.

  44. yonodeler says:

    There’s a hinky sense in the public that the bits of information they hear and read about domestic surveillance and national security programs that net and process personal information don’t add up, but it’s so hard to pin anything down. Without explicit, credible facts of people being harmed, public outrage remains at such a low level that most Members of Congress don’t get uneasy. Plaintiffs’ sides in lawsuits may eventually be able to convincingly show that harm was done to the plaintiffs, but such a success would be several months in the future at the least, it appears. I’m wondering what in the short term can further enlighten the public, expose the big lies laid on them, and put pressure on Members of Congress.

    I’d like to see more high-profile coverage and discussion of what privacy experts, legal experts, and information technology experts—who are generally not prone to entertaining unfounded conspiracy theories, and so don’t need tin-foil caps—see as credible risks to persons and companies from the collection and utilization of personal data by government agencies and their corporate partners. Pertinent topics might include categorization of political speech, association, and activity; development of personal interest and lifestyle inventories; providing of personal information to insurance companies, employers, etc.; confusion of identities; adverse effects of watch lists—those mentions are far from exhaustive.

  45. yonodeler says:

    I should have stated above that risks to sensitive private company information, in the surveillance and data collection context, should be a widely-discussed issue.

  46. SoCali says:

    I respect emptywheels’s analytical skills but this post shows a chink in the armor. “Recommendations for the Future” is plain and simply a failed perception of reality. Under the current governmental structure there is no winning. Corporations had this one done from day one. What made it stand out was the open demonstration of brute force.
    The Dems are every bit as corrupted and controlled as the Repugs. Look at what our constitutional professor nominee did in the fact of an unprecendented attack on the 4th amendment while exposing that he like the rest of them have sold out basic principles in the face of a political price they may pay by being labeled soft on terror. Not only did Obama side with Bush and Cheney, he rationalized his vote in terms of making “America safe.
    Everyone says, we have to work within the system but it will take time. That for now, we have to vote for someone like Obama who is willing to sacrifice the 4th amendment for political gain while cowering in the face controversy. That we have to change the party.
    If what everyone says is true and that it will take time is obviously true, then why not take that time to build a viable 3rd party. I have voted in 9 presidential elections and each time we hear the same line, something like, “this is a two-party system, we have to work within it , and we have to make it work.” Usually there is something there about the Supreme Court.
    I have seen enough. The FISA vote should have convinced all but the terminally naive that this system is corrupted to the core. It is not just FISA! Don’t get me wrong. But FISA demonstrated unequivocally that corporate forces control our government. They control both parties.
    Emptywheel misses the point.

  47. yonodeler says:

    I’m not to the point of holding that only tech-savvy candidates should be elected to Congress, but I’ll say that we should expect every Member of Congress to be aware of technological issues pertaining to legislation before Congress and to congressional responsibilities. Having or pretending to have little knowledge of telecommunications and information technology should no longer be acceptable. Every Member can have staff possessing technical knowledge who can help the Member acquire technical understanding necessary for performance of duty; there are abundant resources on the World Wide Web; there are experts who would gladly tutor congressional committees or Members requesting tutoring.

  48. kspena says:

    As a bit of 2 cents, I remembered how hard it was to get the Pentagon Papers published and in circulation. Gavel read them from the floor of Congress where he had immunity. I wonder if reading key documents, from whistle-blowers or experts on topics (as Bybee memo, orders, presidential findings, etc.) that cut to the quick of the secrecy and lies, reading them and discoursing on them from the floor with CSPAN coverage, could be a useful tool….

  49. Sara says:

    May I make a book recommendation. Tim Shorrock’s new book, “Spies for Hire: The Secret World of Intelligence Outsourcing” (Simon and Schuster, 2008), a work based on his attending the business meetings of the Military Intelligence Complex organizations for the past seven years, really should be a barn-burner in this area. Shorrock is a business and commerce investigative reporter, mostly published in business journals, and the likes of the Progressive, New York Review and Mother Jones — but his key point is that about 70% of all intelligence and Homeland Security stuff is outsourced, and virtually no Government Contract gives the Government exclusive ownership of the data or the analytical programs used to extract it and support recommendations. The vast majority of this is personal data, or based on refinement of personal data. Because Congress has avoided trying to pass a modern data privacy act — what has happened is that Government now supports the process of collecting the data through contractors, who are perfectly free to keep the data and use as they will, for any purpose they wish — or whoever can pay for what they have.

    Richard Clarke today put some emphasis on “outsourcing” as he does in his new book — but to really comprehend the meaning of for instance, 70% of CIA or NSA’s budget going out the door to private contractors, you have to read Shorrock’s work, where he describes the special “fairs” departments such as Homeland Security set up, which are little more than auctions, with lots of shrimp and crab cocktail laid on to give it all a bit of class. Clarke is quietly trying to say, a lot of this stuff is really government business, and it should be brought back in house, and done by accountable public servants. That can probably only happen once many more folk know the vast rape of private information that has been on offer in recent years, gets mad, and demands change. And that is why you need a totally eclectic coalition — not something that can be easily “typed.”

    I will bet bottom dollar that the reason the Pentagon so fucked up the contracts for in air refueling tankers was because they wanted to look totally incompetent so that the procurement process could be privatized.

  50. TomR says:

    What I wonder is if there’s some way we can monitor telecom or other applicable lobbyist activities with our elected representatives. Is there some kind of public log kept somewhere of which lobbyists are meeting with which senators and representatives?

    That would have clued us in to there still being something afoot in regard to FISA legislation.

    – Tom

    • bmaz says:

      I am not sure that would have done anything for you. When you check the actual facts and figures, the money and lobbying efforts by telecoms were actually at unusually low levels through the end of fall 2007. And, considering that it was, from there forward, a presidential election year it has not been particularly elevated since then to the best of my understanding. And keep in mind that they always do a certain baseline level of lobbying and donating for a whole host of reasons germane to their business other than FISA; when you do, you find no real cognizable push that is overly noteworthy. The big push came from the Bush Administration.

  51. yonodeler says:

    The retroactive immunity issue, it would seem, could be significant to the voting public; trouble is, the backers of retroactive immunity have been widely persuasive in painting the affected service providers as patriots who acted in good faith.

    Exclusivity has potential for becoming a significant issue for the voting public. No one who learns that blanket surveillance has been and is being conducted, and who becomes familiar with FISA exclusivity, would believe that blanket surveillance is lawful conduct under FISA. Some lawsuits, if allowed to proceed, may eventually have the effect of making more of the public aware of illegal electronic surveillance and interception of domestic wire, oral, and electronic communications. But I’d like to think we won’t have to wait that long for the voices defending the rule of law to win credibility from their opponents.