Richard Clarke to Bush: Stop Fear-Monger to Take Away Civil Liberties

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This article, from the man whose warnings about 9/11 Bush refused to believe, ought to be sent to every Senator.

For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections.

I spent most of my career in government fighting to protect this country in order to defend these very rights. And I know every member of Congress – whether Democrat or Republican – holds public office in the same pursuit.

That is why in 2001, I presented this president with a comprehensive analysis regarding the threat from al-Qaeda. It was obvious to me then – and remains a fateful reality now – that this enemy sought to attack our country. Then, the president ignored the warnings and played down the threats. Ironically, it is the fear from these extremely real threats that the president today uses as a wedge in a vast and partisan political game. This is – and has been – a very reckless way to pursue the very ominous dangers our country faces. And once again, during the current debate over FISA, he continues to place political objectives above the practical steps needed to defeat this threat.

In these still treacherous times, we can’t afford to have a president who leads by manipulating emotions with fear, flaunting the law, or abusing the very inalienable rights endowed to us by the Constitution. Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has and still works as the most valuable mechanism for monitoring our enemies.

In order to defeat the violent Islamist extremists who do not believe in human rights, we need not give up the civil liberties, constitutional rights and protections that generations of Americans fought to achieve. We do not need to create Big Brother. With the administration’s attempts to erode FISA’s legal standing as the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil, this is unfortunately the path the president is taking us down.

Click through for the rest–and then send copies to your Senators.

You think maybe Clarke is getting fed up with this false debate?

FISA Update

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Apparently, Reid has brokered a Unanimous Consent agreement that everyone, from Feingold and Dodd to Jeff "Mutual Defense" Sessions, have bought off on.

cboldt’s description is, not surprisingly, the best description of what we’re looking at. What the UC sets up is the following:

  • Four uncontroversial amendments that will pass with the UC. These cover getting the FISC rulings for the past five years, emphasizing prohibitions on domestic targeting, and eliminating a 7-day deadline.
  • Two Bond amendments that will receive very little debate (20 minutes) and will pass–and I do believe they will pass–with a 50 vote margin. One of these permits wiretapping those proliferating in WMDs without a warrant. From CQ:

One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction. Its adoption would require a simple majority vote.

  • Three Feingold amendments that shouldn’t be controversial–basically two just raising the bar on whether nor not the government is really after foreign intelligence or not, and another allowing FISC to require the government to stop wiretapping if their application sucks (though via a Bond amendment, they still get to tap for 90 days). I assume they’re accorded a 50 vote margin because the Republicans don’t find them controversial.
  • Two of the three immunity provisions–both the one striking immunity altogether, and the one substituting the government for the telecoms. I assume they’ve been subject to a 50 vote margin because the Republicans know they won’t win 50 votes. In other words, our chances of using the courts to learn what Bush did will almost certainly lose.
  • One Feingold/Whitehouse amendment on sequestration–probably a better guarantee on minimization than is in the bill. I’m guessing the Republicans have wagered this won’t get the votes to pass, since they’ve agreed to a 50 vote margin. Read more →

Dick’s Evolving Demands for Immunity

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Thanks to Faiz, who watches Rush, so I don’t have to.

Once again, the Administration has trotted out Dick to lobby for immunity for himself telecom immunity. All the things I said last week about the inappropriateness of sending the guy who would most directly benefit from immunity out to lobby for it still hold.

So someone decided that they would get the person least willing to cooperate with Democrats, the person who single-handedly could eliminate the legal problem they allege the telecoms have, and the person who stands to benefit most from an immunity provision for telecoms, to head out to pressure Congress? And they thought this would work to persuade Democrats to put aside all the troubling legal issues to grant immunity?

But I’m interested in slight changes to Dick’s spiel over the last eight days of legislative wrangling. As an aside, you’d think that some of these differences might stem from the fact that your average Heritage Foundation member has about four times the IQ of your average Rush listener, but Dick’s statements to Rush are much more measured.

One thing I hadn’t noticed in Dick’s Heritage Foundation speech is that it already included (and was perhaps the roll-out of) the Orwellian "liability protection" in lieu of the more accurate "retroactive immunity."

Actions by Congress sometimes have unexpected consequences. But a failure to enact a permanent FISA update with liability protections would have predictable and serious consequences.

It must have polled well, because Dick is developing into an elaborate metaphor including a dig at trial lawyers.

One of the main things we need in there, for example, is retroactive liability protection for the companies that have worked with us and helped us prevent further attacks against the United States —

[snip]

RUSH: The opposition in the Senate is primarily from Democrats, correct?

CHENEY: Correct. People who don’t want to — I guess want to leave open the possibility that the trial lawyers can go after a big company that may have helped. [my emphasis]

I wonder how the ACLU and EFF feel about being labeled trial lawyers? Read more →

Not Just Immunity

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Home now! More details on my trip over the day. And thanks to bmaz for holding down the fort yesterday (though I will pester him to do his part two).

This is the video Matt Stoller took of Russ Feingold speaking to a bunch of us DFH bloggers yesterday, mostly about FISA. Feingold argued that immunity was just one part of the SSCI version of the FISA bill that sucks: just as importantly, the SSCI has inadequate protection for the privacy of Americans, particularly when they communicate with people in other countries.

Now, Feingold suggested no one had been blogging about these other topics–to which I complained that I had (and McJoan from DailyKos pretty much agreed I won’t shut up about them). Here are some highlights:

Minimization (the process by which the government segregates out US person data and eventually destroys it):

Overseas Spying (addressing the fact that through the use of Pixie Dust, Bush appears to have made it legal to spy on Americans overseas)

Mass Collection (the FISA program aims to allow basket warrants, which will provide the legal justification to do data mining)

Read more →

For Fear Of Fear – Part One

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It has been an exciting and fascinating two days, yesterday and today. It has been the best, and worst, of American democracy in action. The thrill of victory; the agony of a weak defeat, snatched from the strong jaws of victory. Yesterday we were giddy with the knowledge that the Democratic Senate Leadership had actually stood up, not just to the Bush/Cheney/Republican cabal of maximum everything in wiretapping and privacy invasion, but in the name or the Constitution and righteousness. Today, reality came crashing back down to earth for those of us in the reality based community.

Yesterday, the Senate led by Harry Reid and the Democrats fought off cloture and a vote on the contemptible Jello Jay Rockefeller crafted SSCI FISA Update Bill that, in addition to other ills, provided immunity to Dick Cheney, George Bush, other Administration malefactors and, as somewhat of an afterthought, participating telcos. That was a good thing. There were already whispers and scuttlebutt of a "brief extension" of the truly contemptible Protect America Act. As I have argued for some time now, there are inherent problems with such a "routine brief extension".

I repeat what I said yesterday on this “brief extension” nonsense. It is nothing but sheer political posturing that brings us down to the level of the Repuglicans AND weakens our case at the same time. Take a stand for the proper principles, and stand behind them as opposed to injecting harmful BS for the sole sake of cornering your opponent; which is a fine and appropriate tactic, if it doesn’t undercut your core principle in the process. Here, it will weaken the core principle and argument in it’s favor and should NOT be considered; especially since it is not necessary “to protect us” in the least, and blindly saying that it is so necessary is ridiculous.

NO EXTENSION! There is no need whatsoever for an extension, because A) The Administration can order any comprehensive program, or programs, they want prior to the lapse of the PAA and that program(s) will stay in effect for one full year “to protect us”; and B) the original FISA law is reinstated. Furthermore, passage of any extension is a wolf in sheep’s clothing because is equitably removes and/or weakens many arguments and defenses that opponents, like us, to the PAA had from it’s original passage in August 2007. At the Read more →

Was It Her Colleagues, or Her Constituents?

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As Jane reported last night, our presidential candidates have decided to return to DC to exercise their vote, if not to lead.

I’m glad to have them, though I agree with Tim Tagaris that we could sure use their help on Tuesday and Wednesday and Thursday, as well as today.

I’m curious, though, about one thing. On Friday, here’s what Hillary told Matt Stoller about this vote:

Then I spoke with Hillary, and she said she has assured her colleagues she will go back to the Senate if they need her vote.

As was perfectly clear at that point, you don’t need votes to defeat a cloture vote–you just need to make sure your opponent doesn’t get the requisite 60 votes.

So what convinced Hillary to return and cast a vote that, I’m sure, her Republican opponents will find some way to attack (speaking of which, McCain is blowing off the SOTU, presumably to avoid committing one way or another to this vote)? Was it a slew of faxes sent to her campaign office, finally persuading her that missing this vote will be like flip-flopping on an $87 billion Iraq appropriation? Did someone decide that we might have a shot at reaching cloture on the House version of FISA, RESTORE, which should have a cloture vote immediately following the Rockefeller-Bond bill (I doubt that highly–I suspect this cloture vote is Reid’s attempt to prove that RESTORE is no likelier to pass than the Rockefeller-Bond bill [oops, I confused what the cloture vote is on–it’s on the extension of PAA])? Are we at risk of failing to defeat cloture, and Hillary wanted to make sure her vote was registered? Or did Hillary just remember she had a day job?

[Speaking of which, I’m actually in DC hanging around the Senate today, though I doubt they’ll let me vote in the cloture vote, or even see it any more closely than you can on CSPAN. Posting may be either light or heavy–who knows?]

Bush Would Forgo New FISA Programs to Make Sure Dick Gets Immunity

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Bush says he wants a new FISA bill, and he wants it now. 

The White House told Democratic congressional leaders Saturday that President Bush opposes a 30-day extension of an expiring eavesdropping law and instead wants an expanded version to be passed by Friday.

“The president would veto a 30-day extension,” a senior administration official said. “They’re just kicking the can down the road. They need the heat of the current law lapsing to get this done.” 

To which Reid appropriately pinned any blame on Bush.

Senate Majority Leader Harry Reid (D-Nev.) called the veto threat "shamefully irresponsible" and "simply posturing in advance of Monday’s State of the Union address."

"There will be no terrorism intelligence collection gap," Reid said. "But if there is any problem, the blame will clearly and unequivocally fall where it belongs: on President Bush and his allies in Congress."

Reid’s response is useful. But he needs to say one more thing. If Bush vetos a 30-day extension, he will be doing so for one reason and one reason only: because the existing legislationg, PAA, doesn’t offer immunity to telecoms–and with it, to Dick Cheney and everyone else in this Administration who pushed the telecoms to continue their spying even after the acting AG, Jim Comey, refused to certify the program for a period in 2004.

Bush is willing to forgo implementing new FISA programs (all the existing ones will continue for at least six months) all because he wants Dick to get his immunity … now. This is about Bush putting Dick’s interests–and his own–above the security of the country.

Bush’s Secret Cyber Initiative

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I’m actually fairly sympathetic to the notion that we need to get much better at defending our network infrastructure against attacks. I’m fairly supportive of the notion that one agency within the government should take the lead on the project.

But the news that Bush has assigned that role secretly…

President Bush signed a directive this month that expands the intelligence community’s role in monitoring Internet traffic to protect against a rising number of attacks on federal agencies’ computer systems.

The directive, whose content is classified, authorizes the intelligence agencies, in particular the National Security Agency, to monitor the computer networks of all federal agencies — including ones they have not previously monitored.

Until now, the government’s efforts to protect itself from cyber-attacks — which run the gamut from hackers to organized crime to foreign governments trying to steal sensitive data — have been piecemeal. Under the new initiative, a task force headed by the Office of the Director of National Intelligence (ODNI) will coordinate efforts to identify the source of cyber-attacks against government computer systems. As part of that effort, the Department of Homeland Security will work to protect the systems and the Pentagon will devise strategies for counterattacks against the intruders.

And the news that cyber-defense still focuses exclusively on government networks…

Supporters of cyber-security measures say the initiative falls short because it doesn’t include the private sector — power plants, refineries, banks — where analysts say 90 percent of the threat exists.

"If you don’t include industry in the mix, you’re keeping one of your eyes closed because the hacking techniques are likely the same across government and commercial organizations," said Alan Paller, research director at the SANS Institute, a Bethesda-based cyber-security group that assists companies that face attacks. "If you’re looking for needles in the haystack, you need as much data as you can get because these are really tiny needles, and bad guys are trying to hide the needles."

…Doesn’t give me a whole lot of confidence that this is being done right.

Though I will say this. The news that Michael Chertoff’s badly managed and contractor dominated Department of Homeland Security is no longer slotted to take the lead on this is one bit of good news. Read more →

How to Lead: Chris Dodd Edition

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While Hillary and Obama were leaving the work of legislating to others, Chris Dodd stepped up to lay out the stakes for the FISA debate.

Senators are not entitled to see their amendments pass. But they are entitled to this: a good-faith debate, honest criticism, and, ultimately, a vote.

Last night, they didn’t get it. Our Republican colleagues, assuming that they would lose those votes, effectively shut down the work of the Senate. They’ve taken their ball and run home.

They won’t debate us on the merits. On the merits, they conceded, Republicans have lost.

And I don’t think I’m far off base, Mr. President, in seeing in this egregious shutdown a parallel to retroactive immunity itself. Both attitudes privilege power over deliberation, over consensus, over honest argument.

Like immunity, pulling these amendments shows a contempt for honest debate and a willingness to settle issues in the dark, in back rooms—rather than in the open, where the law lives, where the American people can see it.

President Bush wants to shut down courts whose rulings he doesn’t like; last night, Senate Republicans showed that when they don’t like the outcome of a debate, they’ll shut that down, too.

It’s one thing for a president to express that kind of contempt for the process of legislation. It’s another for the members legislative branch to express it themselves.

Mr. President, I’ve spoken repeatedly about the rule of law. The rule of law isn’t some abstract idea. It’s here with us—it’s what makes this body run.

It means we hear each other out, we do it in the open, and while the minority gets its voice, gets its right to strenuously object, the majority ultimately rules.

And standing for the rule of law anywhere means standing for it everywhere: in our courts, and in our Senate. The circumstances are different, of course; but the heart of the matter is the same. Last night, I believe, the Republican party forfeited its claim to good faith on this issue. They’re left to stake their case on fear. Whether that will be enough, the next few days will tell. [my emphasis]

Well, thank god someone’s in DC standing up for the rule of law.

Dick Wants His Immunity, and He Wants It Now

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What wizard of political strategy decided that Dick Cheney was the appropriate person to harangue Congress about approving immunity for himself and all the other Admin folks who pushed illegal wiretapping the telecoms?

The unfortunate aspect of the Protect America Act is a sunset provision, which makes the law expire on the first of February –- just 10 days from now. That leaves Congress only nine days in which to act to keep the intelligence gap closed. And with the day of reckoning so close at hand, we’re reminding Congress that they must act now to modernize FISA.

First, our administration feels strongly that an updated FISA law should be made permanent, not merely extended again with another sunset provision. We can always revisit a law that’s on the books –- that’s part of the job of the elected branches of government. But there is no sound reason to pass critical legislation like the Protect American Act and slap an expiration date on it. Fighting the war on terror is a long-term enterprise that requires long-term, institutional changes. The challenge to the country has not expired over the last six months. It won’t expire any time soon –- and we should not write laws that pretend otherwise.

Second, the law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits. We’re asking Congress to update FISA and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11th, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now. Why? Because they are believed to have aided the U.S. government in the effort to intercept international communications of al Qaeda-related individuals.

We’re dealing here with matters of the utmost sensitivity. It’s not even proper to confirm whether any given company provided assistance. But we can speak in general terms. The fact is, the intelligence community doesn’t have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11. In some situations there is no alternative to seeking assistance from the private sector. This is entirely appropriate. Indeed, the Protect America Act and other laws allow directives to be issued to private parties for intelligence-gathering purposes.

[snip]

Actions by Congress sometimes have unexpected consequences. But a failure to enact a permanent FISA update with liability protectionswould Read more →

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