Franken’s Fleeting Fourth Amendment

Remember this stunt? It was just two weeks ago that Al Franken was reading the Fourth Amendment to David Kris. Franken made a good point about how you should identify individuals before collecting their data.

Of course, two weeks later, Franken voted with eight other Democrats to continue to allow the government to collect information–things like shopping histories–about people without first identifying whose information they want to collect. Just collect a list of everyone in Aurora, CO who bought acetone, Franken seems to be saying, and too bad for the guy with an Arabic name who becomes an FBI target because he’s painting his house.

Just two weeks later and it seems someone needs to give Franken the lesson he was trying to give Kris.

26 replies
  1. ART45 says:

    Franken’s learning how he’s supposed to behave.

    I say, good for him.

    Certainly wouldn’t want him to flout the system he’s sworn to uphold.

    • LabDancer says:

      I wouldn’t go that far; nor am I inclined to conclude that Franken is engaged here in ‘going along to get along’. Rather, the pattern that has emerged, of support for & dissent from the DiFi approach, since emptywheel started in her posts on the SJC’s conflation of the state of the Zazi investigation with the issues involved in reviewing the tools in stale-dated in the Patriot Act tools & in FISA 2008, of the investigation having stalled out somewhere at or just beyond Zazi, & those conducting it urging on the membership of the SJC that as a matter of necessity they’re driven to hoovering, to at least some extent.

      [As to what extent, I’m inclined towards the view that bmaz has been suggesting, i.e. throughout an defined locationg that’s been cobbled together from combining a greater metropolitan area & the ways in which the materials of interest are distributed from warehouses through to supposed end-users — or in my slightly amended preference, more than one such area.]

      I’m also inclined towards admiration for how Feingold is keeping his head above the herd over this, in particular pointing out, as I’m interpreting his statements at least, that each of the members of the SJC herd supporting the DiFi approach is voting either on an expression of faith in the bona fides of the investigators [actually, more materially in the bona fides of the briefers], or on the default position of not being able to judge, which is less–so much less as to be categorical–than what a judge typically gets & can command on entertaining an application for a warrant.

      That ‘default position’ is where I’d think more likely Franken is coming from. IMO it really does take a familiarity with the law & how its machines work that’s beyond Franken; he’d have to have something like the gifts fearless leader here has to even dare.

  2. orionATL says:

    lab dancer @2

    what if one just says, e.g., franken just says,

    “i’m not waiting until i get to your level of understanding before i comment or act. give me info and lots of it and give it to me now or i’m going to make a fuss.”

    that’s what franken could have said (or feingold or whitehouse).

    no info, no explanation? then no support for sub-rosa, hidden-from-the-public-view, decision making.

    i’m not about to trust that any high level american politician, especially slick operators like obama and feinstein,

    have a grasp of circumstances that is more meritorious in terms of history or reality than my own,

    unless they publicly explain their positions in a way i find both educational and morally acceptable to me.

  3. phred says:

    Just had a chance to catch up. I trust by now EW you are well into beer thirty. I certainly hope so after such a depressing day. Someday I would like to be pleasantly surprised by the Dems. I don’t imagine it will be any day soon though…

  4. bmaz says:

    And the Feds decide to lean hard on Zazi’s father with some trumped up trivial crap:

    The father of an Afghan immigrant accused of plotting a terrorist attack in New York City was indicted on a charge of lying to investigators, federal officials said Thursday.

    The U.S. Attorney’s office in Denver announced that a grand jury returned the indictment against Mohammed Zazi for allegedly making a false statement in a matter involving terrorism.

    The indictment alleges that Mohammed Zazi lied to FBI when they asked him if he had spoken to anyone about his son on the phone and whether he was in any trouble with authorities.

    Prosecutors say that Mohammed Zazi did speak to someone on or about Sept. 11 about his son and that at one point, Mohammed Zazi warned his son that he should hire an attorney.

    Let’s see here, Father Zazi mentioned his son to someone and told his son to get a lawyer. How nefariously terroristic of him. You know, maybe there is more to the overt conduct than is being let on, but on the surface this looks like pure crap.

    • phred says:

      bmaz, I haven’t had chance to follow the Zazi story in much detail. I am highly suspicious about this case simply because of the timing with respect to the reauthorization of the Patriot Act. Seems a little too convenient for the Feds to produce the perfect poster child for the occasion. Still, that puts me well into tin foil hat territory since I don’t know the facts. Am I being unfair? Do you think this looks like a real genuine case or does it look suspect to you?

      • Hmmm says:

        Except that it’s not clearly a poster-boy case. In fact on the one hand the official story is that they didn’t originally find him via PATRIOT powers at all; and on the other hand, the ways in which they did apparently use 215 (ostensibly) authorized methods has raised ten kinds of dire questions about how the particulars work, and about whether those particulars trample, or are like to trample in the future, on everyone else’s rights and freedoms. This controversy hurts, rather than helps, them in the reauthorization fight.

        So if the Zazi publicity timing was indeed manufactured, as you suggest, then whether they fully thought things through seems iffy at best.

        • LabDancer says:

          mmmayb…nnnnaaat so much.

          I think this could well be one of those perfect scam doohickeys, where even those actively exploiting it can’t rule out the possibility it might be true.

          One can almost hear someone on an investigating team from one the various agencies involved throwing this out in jest over a refreshment or even a beverage, then other members of the team returning to it, at first to summons back the humor, then to kill time, then as an option to complete the list of possibilities, to taking up a space on a whiteboard, being assigned a nominal advocate, who takes the job seriously, grabbing her or his chance while the team is engaged in an exercise of attempting to fix parameters about the information void by coming up with scenarios & contingent response plans to those; burying the idea in the very bottom of the briefcase in preparation for yet another inter-group briefing & strategy meeting, where one thing said leads to another…

          Throwing out this crap about being charged with lying to cops, at the guy’s dad, & earlier his imam [? or if not, an elder], that’s indicative of something else: incompetence, too many cowboys in the posse, maybe anxiety; although, you’d expect at this level, if the anxiety was real, we wouldn’t be learning about it in something barely past real time; it would be coming out in court, or in a media interview to push the book.

          • LabDancer says:

            I should point out that in the world I’m referring to, the members of the various investigating teams, though constrained by bureaucracy & otherwise from sharing what I’d call the ‘hot stocks’ part of their portfolios [in descending order: humint, acquired documents, sigint & analysis], is actually quite an enthusiastic, geeky to the point of trekkiness world when it comes to sharing information on a broad range of trade techniques, of all manner, particularly including things that, if it were to be written down you could title the book Borderline Tactics: How to Impress Your Boss, Your Colleagues, Suspects & Those Who Lawyer Them Up, Prosecutors & Judges, While Avoiding Professional Embarrassment & Getting Caught.

            The denizens of that world are constantly taking specialized courses, attending limited topic conferences & inter-disciplinary training sessions, & working through intra-agency bonding & assessment exercises — each of which places inviolate status on time for unstructured, informal social interaction, during which such topics as the ‘perfect scam’ take on the recurrent status of occupational mythology.

            And as we know from folks like the late Joseph Campbell, the mythology allele has only a few dozen variations on the human genome & carries something like the same capacity as sex has to fascinate.

    • cinnamonape says:

      “In trouble with authorities” vs. “hire a lawyer”. I had to hire a lawyer when I was not “in trouble with authorities”. One can hire a lawyer for many reasons, disputes with others (torts)…making sure disputes with others are avoided (contracts), and making sure one doesn’t get into trouble with the authorities.

      Getting legal advice, or suggesting to someone in getting legal advice, should not be a crime. And suggesting that someone do so doesn’t mean that they ARE in trouble with the authorities.

      • bmaz says:

        Well, yeah. Now, of course technically the charge is not for the call, but not admitting it to the Feds. But if it were just some innocuous throw away comment to a friend like “my kid’s in trouble, I told him to get a lawyer”, I can see why the father would not necessarily think to mention it. Now, to be fair, it may have been some far more serious discussion of his son that was nefarious and it is a valid charge. Sure don’t see that yet though.

  5. bmaz says:

    Heck if I know. Zazi could really have been working on explosives with bad intent; if you can believe any of the government’s publicly released statements on their case, it would appear Zazi indeed was. And it sure does seem to be being hyped for political purposes too. It may be a fair amount of both. I am curious as to what the nature of Zazi’s father’s discussion with the friend was regarding Zazi; there sure wasn’t anything in that article that indicated it was particularly nefarious. From what we know so far, I am not real plussed with any of it; but who knows what is beneath the surface. Would be a lot easier to have faith in the government’s case if they didn’t have such a totally pitiful and consistent record of dishonesty and hyperbole on such things.

  6. abinitio says:

    Feingold’s Dkos post says a lot about the Democrats.

    Meet the new boss same as the old boss. Congress is irrelevant now in protecting personal liberty of citizens. They are an active accomplice with the Executive in creating a national security state to benefit the elites. Look at the fraud perpetrated by the Fed & Treasury in privatizing profits while socializing losses of the financial sector. It should be clear as day that we have is a melding of the state and financial interests – the Mussolini definition of fascism.

    Working to elect more Democrats has been a failed strategy! There’s not much difference between Dubya’s bailout Wall Street and Obama’s change you can believe in money printing and trillion dollar deficits. The Patriot Act bill out of the Democratic controlled committee should now make it abundantly clear the Obama “change” was a conjob on the American people.

  7. Sara says:

    A little OT info on Franken…

    Today, Survey USA released its latest polling results…straight up approval/disapproval, and Franken is moving up in the world. They asked about four current office holders.

    Klobuchar, 64/31
    Franken 49/44
    Pawlenty 45/52
    Obama 55/40

    OK — now for Franken’s next bill. We need to remember his first effort at bill writing was a bi-partisian effort to authorize the VA to provide service dogs to disabled Iraqi and Afghani Vets. A very small piece of the stim was to be used to support this. Dogs are to be trained in medium security prisons by inmates with professional dog trainer supervision, and then distributed through the VA. First dogs arrived at Minnesota Womens’ prison in August, and Franken was there to supervise the pups. (he follows through).

    Second Bill is attached to the Defense Authorization Bill, it has now passed both houses, and it prohibits any contractual language in any DoD contract that allows a contractor to strip any employee or sub-contractor of rights of redress in civil or criminal courts for rape, sexual harassment, etc. He got 60 votes on passage of the amendment.

    So his new Bill — this Thursday, October 8th. A little more substantial. He proposes that we strip tax breaks from Pharm and Medical device companies for all advertising (which under tax law is called consumer public education) to the general public and to the medical profession. (Think all those ads on the nightly network news — will this be the death of the 5:30 News Programs???)

    He got it scored by CBO, and it would save (actually add to Federal Revenue) 3.5 Billion Dollars per year, or 35 Billion over ten years. That is about 40% of what the whole Baucus Bill would save over ten years.

    I think everyone ought to get behind Franken’s “end tax breaks for Adult Diaper Ads” bill as a way of Modeling how you find some of that famous waste, fraud and abuse in how current tax expenses mis-spend medical dollars.

    I suspect Franken’s third bill will gather somewhat more opposition than his first two. But all of these just make me smile — they are so like the things Paul Wellstone used to do, essentially find these gems and put them in legislative form, and force votes on them.

    As to the question about the 4th Amendment Franken asked of the DoJ witness — I would imagine DoJ and the FBI probably sat down with him and talked a bit about investigations in the local Somali Community, and how some of their tools apply to this. You all may remember my commenting on this when we were discussing Pirates — but it is a very serious issue here abouts. Last year about 20 young Somali men were recruited to fo to Somali to fight against the current government with a group that is linked with Al-Qaeda. Apparently of that 20 they think six have been killed in the fighting, several have returned to the US and have been indicted by a local federal grand jury, and will be tried, but the key issue in the investigation seems to be who is doing the recruiting through the local mosques? The current President of Somalia was here last weekend in the wake of the UN meeting, and addressed about 15 thousand of the 70 thousand Somali refugees now living in Minnesota — and I gather there were a number of private meetings with leadership and some State Department officials about all this over the weekend. Keith Ellison has been fairly up front as this thing gradually rolls out.

    I strongly approve of what they seem to be doing. Clearly there is a problem with al-Qaeda recruiting here, particularly using the Mosque as a place for such activity. But they seem to be trying very hard to avoid any sort of broad brush approach to the matter, they are carefully looking toward indicting only true targets — there don’t seem to be any fancy games being played to intice people into false flag conspiracies.

    Well, it looks as if Barack Obama has to make a return trip to Scandinavia this December — maybe two trips if he goes to the Kobenhavn Climate Change conference. I think I might even watch a little winger TV today to see how they take Obama getting the Nobel Peace Prize at this point in his political career. NPR is having trouble detailing what to say about the award (Juan Williams says it is out of the blue), — apparently it is for trying to cut back on the inventories of Nuclear Weapons, and changing the tone of US Diplomatic Leadership among other things. No Olympics mind you, but Oslo will get a speech. Nice booby prize.

    • prostratedragon says:

      NPR is having trouble detailing what to say about the award

      Hey, let the fumbling begin. This should be quite a day, especially for those onlookers with a touch o’ Lucifer in ‘em=;>

      Seriously though, what could give more emphasis to the need other countries feel that we stay engaged and ready for geniune dialog on any number of important matters?

    • bmaz says:

      I am having a hard time really explaining it too, at least on hard substantive grounds. In more esoteric concerns however, he has had an immense calming effort on a lot of fronts in world diplomacy because of who and what he is, and who and what he is not (Bush). The attempts to cut back on nukes is commendable, but hardly seems enough yet on its own for the Nobel; but it will sure drive the neocons and wingnuts crazy and that is a good thing.

      • Sara says:

        “I am having a hard time really explaining it too, at least on hard substantive grounds. In more esoteric concerns however, he has had an immense calming effort on a lot of fronts in world diplomacy because of who and what he is, and who and what he is not (Bush). The attempts to cut back on nukes is commendable, but hardly seems enough yet on its own for the Nobel; but it will sure drive the neocons and wingnuts crazy and that is a good thing.”

        Realize, my first post was as NPR was making the first announcement just after 4AM CDT. Now I have thought about it.

        The real American Expert on the Nobel Peace Prize is my former History Professor, Irwin Abrams. I’ve checked his site, and he has everything up and linked, so just google Irwin Abrams and start reading.

        As a very young man, just out of the CO prison camp during WWII, Abrams became a key leader in the American and British Friends Service Committee’s work to resolve the DP problem in post war Europe, and in 1947 he was part of the group that went to Oslo to accept the Prize that was split between the British and American Quakers. He has remained close to the Nobel Committee ever since, and has frequently worked to assemble the documentation for the committee when they consider American Nominees. He had lots to do with both the Carter and Gore award, and he has co-authored with Carter — the site links their work. I would not be at all surprised if he didn’t have something to do with documenting the case for Obama. He is 96 or so years old now, but sharp as they come.

        So google Irwin Abrams and surf his very massive site. Everything you ever wanted to know about the Lauraets, about the committee’s considerations in selecting them, copies of their Nobel Lectures, (all Lauraets must give a lecture in Oslo), and all are expected to remain for life associated with the Nobel Community — many former Lauraets make nominations.

        Looking at some of the pieces on his site — I have decided that Obama was exactly the right choice for 2009.

  8. skdadl says:

    When Kissinger won the award in 1973, Tom Lehrer declared that satire was obsolete and quit performing, definitely one of the major sins to be totted up against Kissinger.

    How many times can satire die?

  9. knowbuddhau says:

    Are there any deeper similarities between this and Jello Jay’s fleeting 90% amendment?

    MIKE LILLIS, THE WASHINGTON INDEPENDENT: Earlier today [10/01], we previewed an effort by Sen. Jay Rockefeller (D-W.Va.) to require insurance companies to dedicate a minimum share of premium revenues to health care delivery, as opposed to administrative costs, profits and executive pay. Moments ago, the West Virginia Democrat made his case for the amendment, then withdrew it. The Congressional Budget Office, he said, hasn’t scored it yet.

    It wouldn’t have passed anyway. Aside from Republican opposition, which would almost certainly be unanimous, Sen. Jeff Bingaman (D-N.M.) said he wouldn’t support the measure either. The underlying bill, Bingaman argued, already addresses the most egregious industry abuses. Rockefeller Withdraws Amendment

    The timestamp says “By Mike Lillis 10/1/09 6:32 PM,” so JJ proposed his amendment, to loud applause, and then withdrew it late on the very next day.

    Is this grandstanding by both, neither, or just Franken?

  10. phred says:

    Mornin’ All, thanks for the responses to the question I posed last night. I really appreciate all of your insights. Hmmm, I didn’t mean to suggest that Zazi is in fact the perfect poster boy, simply that he is being used that way at least from what I could gather from EW’s liveblog on the SJC hearing.

    It occurred to me that just because Bush sprung the trap early for political purposes on the terrorist ring the Brits were watching, doesn’t mean that they weren’t terrorists. So it is certainly possible that Zazi is a terrorist, but that doesn’t exclude the possibility that they busted him now for political purposes.

    As for the subject of the moment… It strikes me as premature to give Obama the award now. We’ll have to wait and see if he lives up to it.

  11. orionATL says:

    sara @12

    what a neat little explanatory essay you penned here.

    three small, manageable efforts – productive, and providing clear evidence of franken’s caring about the public interest (as opposed to calculations focusing on one’s career political interests).

    this is just what i would have expected from franken.

    i also expect that, given that he was an athlete in his youth, that there will be a good bit of competitiveness and determination displayed in his years as a senator.

    i sure hope so.

    the nation needs a liberal senator with competitive instincts.

    sara, let me ask you a question i have wanted to ask you since it popped into my head at the end of the franken-coleman struggle:

    how is it that in minnesota these days, historically one of the most liberal, good-government, sensible-government, government in the public interest states in the union,

    a guy like franken beats a guy like coleman by the barest of margins?

    or a guy like coleman beats a guy like mondale, replacing the lost senator wellstone?

    of course this scene plays out in many other states these days.

    but why?

    • Sara says:

      “sara, let me ask you a question i have wanted to ask you since it popped into my head at the end of the franken-coleman struggle:

      how is it that in minnesota these days, historically one of the most liberal, good-government, sensible-government, government in the public interest states in the union,

      a guy like franken beats a guy like coleman by the barest of margins?

      or a guy like coleman beats a guy like mondale, replacing the lost senator wellstone?

      of course this scene plays out in many other states these days.

      but why?”

      Every election is its own story. While I can generally tell you how a progressive DFL’er can win state wide — there are always little details that you can’t control.

      Mondale v. Coleman. All us Wellstonians were crying buckets of tears. I mean that literally. There are still words and sentences that cause me to tear up even six and a half years later. We absolutely loved that guy, particularly those of us who worked on the supposedly hopeless 1990 campaign when we beat Boschwitz who spent 11 million, and we only had a million to spend. I’ve worked on campaigns since 1956 — when I passed on Stevenson literature in a Republican Suburb in Dayton Ohio. You only get one Wellstone Campaign in your life if you are lucky. It is (was) very personal. So what happened after the plane crash in 2002 — most of the Wellstone Campaign spent the week before the election crying our eyes out, and not doing serious GOTV. The American Indians, the African Americans and virtually all the GLBT vote simply did not vote — when we looked later at the turnout, that is where we lost it. Mondale, though honored and well-known was not all that well known among younger voters which was a Wellstone solid blok — they didn’t vote either. We lost some votes to those who had voted absentee early, and were not able to get their ballots back and re-do them, and all of Wellstone’s assets, the campaign office, the money in the campaign fund and all — by law that could not be transferred to Mondale, we had to raise all fresh money ten days before election day.

      You have to remember Norm Coleman had been a centerist DFL’er when he was Mayor of St. Paul — so many centerist liberals in St. Paul just voted for him thinking he would be fairly independent. (HA). So add it all up, and you can account for the 40 thousand votes we would have needed to win in 2002.

      So what happened last year. Remember Minnesota has a third party, the Independence Party (founded by Jesse Ventura) and their candidate, Dean Barkley, took 16% of the votes. Most of Barkley’s campaign consisted of pointing out that Franken and Coleman were flinging barbs at each other — we had tons of money spent on Minnesota last year, wall to wall campaign ads everywhere, so Barkley’s anti-advertising got him votes. He probably took more votes from DFL leaners than from Republicans.

      Within the DFL there were certain circles that just didn’t like Franken — some of the regulars who thought the endorsement should have gone to someone who had worked his way up the ladder. The Franken base was all the old Wellstone folk, most but not all the elected officials, Labor, the Iron Range, and first time youthful voters. But comparing Franken with Coleman on Israel favored Coleman, and Franken lost the more conservative Jewish vote. Franken got the Reformed and the youthful Jewish vote.

      Coleman hired for his campaign staff one of the elders in the Somali Community, and even though Keith Ellison tried to sort that out, there was a rumor in the Somali community that Coleman was the better deal for their clan. Franken should have spent a little more time with Ellison visiting and tea drinking with the clan that went for Coleman, but also voted for Obama. (As I understand it, the clan that were pitched by Coleman is the same clan that had their young men recruited to go fight with al-Qaeda in Somalia.)

      Franken had written some humor for Playboy some years back that some of our politically correct Feminists took objection to — and they went for Barkley. In fact, at one time or another, Franken had done humor about a number of types that are otherwise likely DFL voters. For instance, the very serious substance treatment folk do not necessarily find Stuart Smalley very funny, and they voted against the humor, even though Franken drew the character from his own experience in AA. (Franken does not drink.) I think I knew about six months before the election this was going to be a problem — and I tried to point this out at DKos, because so many posters there only knew Franken through SNL skits. We didn’t need to talk about Limbaugh, Bill O’Reilly and all the other targets of his humor over the years. Anyhow, all reminders of some of his comedy probably lost us more votes than it helped. This should not be a problem in the future as by 2014 the character Senator Franken should be established, and he will have a sense of humor, but will also be a skilled Senator. If those Survey USA polls are correct, Franken has picked up seven points already — he got 42% last year, and he is now at 49%. If he keeps writing decent legislation, he’ll be up in the high 50’s. (Minnesota will love the bill against special tax treatment of adult diaper ads on the evening news.)

      Anyhow, hope this gives you the lay of the land. Next year there is no Senate Race here — we need to elect a DFL Governor, and show the door to Michelle Bachman.

  12. orionATL says:

    sara @ 24

    thanks sara. that was an insiders look like i could never have gotten even from star-tribune, let alone nytimes or wapoop.

    it seems as if in any political contest these days – if you live and breath and speak publicly (and have a sense of humor) – you will have offended so many people you might not get elected.

    but then there are the right-wing candidates like aspiring gov rob’t mcdonnell in virginia who have lots of political baggage that never seems to influence the campaign.

    it just seems as if it is nearly impossible anymore for a democratic candidate to construct a coherent campaign focused some version of “the public interest” .

    there’s seems to be something missing in demo campaigns, some important teaching rhetoric that just is not there, that does not emotionally bind voters together, nor create mandates to guide an elected official’s decisions.

    too much of campaign rhetoric seems focused on the personal rather than the societal.

    thanks again for your wonderfully detailed précis. it gets right to the heart of what boots-on-the-ground campaign politics – the politics so many of us, myself included, understand poorly, if at all – is about.

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