FISA Redux: The Slippery Slope Becomes A Mine Shaft

(photo h/t Pointed Words)

Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.

With the utterance of those words and placement of quill to paper, by Founding Father Benjamin Franklin, so began the half life decay of his wisdom. The surveillance state we occupy today is the festering, mature result of the acts of cloying politicians and barons of power to serve their own political and financial goals by declaring themselves the protectors of law and order. The daddy state. They spread fear of isolated, and ultimately inconsequential, yet publically hyped acts of crime and terror in order to supplicate the nation at large.

It has been a singularly effective scheme.

So it began with characterization of hideous and substantive Fourth Amendment violations of fundamental search and seizure law as "mere technicalities". Soon judges and prosecutors, being elected or politically appointed officials themselves, started shading their duties, principles and morals under the law to find creative ways around Constitutional protections in order to avoid results that would be unpopular. Then the officials ran again for reelection proudly proclaiming how they protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal’s use of technicalities". The more they talked the talk, the more they walked the walk. Down the slippery slope.

And that is where we find ourselves today. From Spencer S. Hsu and Carrie Johnson in today’s Washington Post:

The Justice Department has proposed a new domestic spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years.

The proposed changes would revise the federal government’s rules for police intelligence-gathering for the first time since 1993 and would apply to any of the nation’s 18,000 state and local police agencies that receive roughly $1.6 billion each year in federal grants.

Quietly unveiled late last month, the proposal is part of a flurry of domestic intelligence changes issued and planned by the Bush administration in its waning months. They include a recent executive order that guides the reorganization of federal spy agencies and a pending Justice Department overhaul of FBI procedures for gathering intelligence and investigating terrorism cases within U.S. borders. (Emphasis added)

This is sick. Quite frankly, the contours of this have been quite obvious, and even partially stated, as being on the way for a while now if you were paying attention. This is why I was foaming at the mouth when the Protect America Act (PAA) was passed a year ago, and especially when Congress voted "just to extend (renew) it for a period". Read more

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 Read more

Omnibus Liveblog

Two things going on today: the FISA debate, viewable on CSPAN2, and an oversight hearing, on CSPAN3 or the Committee feed.

And I’m gonna do my best to cover them both (that is, until Christy can pick up one of them).

Here’s the UC for today on the FISA debate–final votes will be around 11:30.

On Wednesday, July 9, 2008, after the Senate convenes at 9:30am, it will resume consideration of the FISA Amendments Act of 2008 (H.R. 6304). There will be one hour and forty-five minutes of debate, with 30 minutes under the control of Senator Feingold; 15 minutes under the control of Senator Dodd; 10 minutes under the control of Senator Bingaman; 10 minutes under the control of Senator Leahy; 10 minutes under the control of the Majority Leader; and 30 under the control of the Republican Leader or his designee.

Upon the use or yielding back of this time, the Senate will proceed to roll-call votes in relation to the pending amendments. Upon disposition of these amendments, the Senate will proceed to a roll -call vote on the motion to invoke cloture on H.R. 6304, as amended if amended.

If cloture is invoked on H.R. 6304, all post-cloture time will be yielded back, and the Senate will proceed to a roll-call vote on passage of H.R. 6304, as amended if amended.

Right now, Leahy is talking at SJC about how this Administration is more politicized than Watergate. And Mitch McConnell is speaking on the Senate floor–so I’ll stick with Leahy for now.

Leahy is reminding Mukasey that he promised to review the OLC opinions. "We look forward to obtaining these memos. We look forward to learning which aspects of the OLC memos have been modified or withdrawn by AG."

Specter (in SJC) talks about FISA as an unchecked expansion of executive authority.

Specter discussing attorney-client privilege–has a bill pending on this. He’s complaining about corporations being asked to waive privilege. (Apparently, he’s okay with the DOJ practice of spying on defense attorneys for people accused of terrorism.)

Now Specter complaining that Judy Miller went to jail when Richard Armitage was the source of the leaks. Apparently he just slept through all the dark clouds hanging over Cheney’s head.

A leak in the investigation of Curt Weldon. A very distinguished Congressman, led directly to his defeat. Never mind that he’s now an arms dealer.

Read more

FISA Liveblog: Chris “Not only do I dress better than Kit Bond, I defend the Constitution, too!” Dodd

Dodd up: Thanks to Reid for leadership on this issue.

Majority leader made clear–this is about Constitution and rule of law. Call up amendment.

The entire amendment: Strike Title II.

Were those warrants sought before the telecoms turned over those communications. Allow co-equal branch to determine whether actions of executive branch were legal. We have 3 co-equal branches of govt. We being legislative should insist that judicial branch determine actions taken.

Thanked a number of Senators–but not Obama.

May seem like a difficult issue to follow. Rule of law v. rule of men. For more than 7 years Bush has demonstrated that he doesn’t respect rule of law. Today considering legislation to grant retroactive immunity to those who are alleged to have cooperated without warrants. Some may argue companies received documentation and that therefore it is automatically legal. They argue mere existence of documentation makes it leagl. Already know companies received some form of documentation. Not whether companies received a document from White House. A very uncomplicated problem. Did the companies break the law? FISC has rejected 5 requests in 30 years. Why not go to court? Why did they depend on paper documentation? Because of this so-called compromise, judge’s hands will be tied. Holding Admin to account for violating constitution. Where law ends, tyranny begins.

Bush’s false dichotomy: to be more security, we have to give up rights. False choice. It’s precisely when you stand up and protect your rights you become stronger. Cannot protect American if you fail to protect the Constitution of the United States.

Eisenhower: The clearest way to show what the rule of law means is to recall what has happened when there is no rule of law.

If we do not stand up for the Constitution, history will decide that those of us in this body bear equal responsibility for looking the other way time and time again. It’s time we stood up for the rule of law. FISA Court strikes a balance between secure nation and nation defending its rights.

Not every phone company did what they did. The ones that didn’t should be celebrated for standing up for the rule of law. Tomorrow we vote around 11:00 in the morning.

Levin noted that this itself can become a precedent. For some future administration to circumvent the FISA courts. This is about whether a court of law should decide. Let’s not decide it by a Read more

FISA Liveblog: Kit “I think red ties look great with pink shirts” Bond

CSPAN’s stream is being a bit cranky, but I’ve got Kit Bond on the old style teevee, and boy I’m not a fashion maven, but I wouldn’t wear a red tie with a pink shirt.

Boy, Kit Bond must be really tired of having to manage a debate against the very much smarter Russ Feingold. He just tried to refute Feingold’s point that 70 people shouldn’t vote for immunity when they don’t know what they’re voting immunity for. He said, "that’s okay, that’s why SSCI is there." Ah, but Mr. Red Tie, if SSCI can’t award immunity on their own (as if Congress can, but nevermind), then I guess it’s not enough, huh?

Bond just said Judge Walker’s opinion doesn’t stand up.

Shorter Kit "Mr. Red Tie": I realize a judge has said Cheney’s whole notion of inherent authority is bunk. But I disagree. And while I’m happy to let Article II boss me around, I’ll be damned if I let Article III boss me around.

Kit Bond: IGs will not determine whether the illegal program was legal or not.

House and Senate Intelligence Committees are all the oversight you need, little boys and girls. Never mind the Courts!

Specter: A member’s constitutional duty cannot be delegated to another member. The full body has to act. The question for the Senator with the red tie is, how can 70 members of the US Senate expect to grant retroactive immunity in light of the clear cut rule that we cannot delegate our Constitutional responsibilities.

[Is this the day Haggis returns to US law?!?!?!?!]

Bond: well, SSCI predates me.

Specter: Uh, yeah, I know. I used to chair it, remember?

Specter: SSCI hasn’t even all been briefed on the stuff they’re supposed to be briefed on. Judge Walker with his 56 page opinion that bears on the telephone case. Have the telecoms had problems with their reputation? Perhaps. They can recover from that.

Specter: Does the Senator from Missora know of any case involving constitutional rights where Congress has stepped in and taken it away from the Courts where there’s no other way of getting a judgment on the constitutionality of it?

Mr. Red Tie: What Specter fails to understand, it’s not a question of carriers being held liable, what they would do is disclose the most secretive methods used by our intelligence community. Read more

Shorter Mike and Mike: No, We Don’t Want Immunity Contingent on Actually Finishing the IG Report

I think I’ve given as much consideration to what it would take to have a meaningful study of what the Administration did with its illegal wiretapping program as anyone (though also see this piece on immunity from Brian Beutler, one of the last pieces he did before he got shot last week). And I gotta say–the fact that DNI Mike McConnell and AG Michael Mukasey claim they’d advise Bush to veto the bill if it included Jeff Bingaman’s amendment–holding off on giving the telecoms immunity until after the IG study mandated by the bill was completed–makes me rather suspicious that Bush intends to spike the IG investigation (h/t Spencer).

As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001.


H.R. 6304 contains such protection, but the amendment would reportedly foreclose an electronic communication service provider from receiving retroactive [immunity] until 90 days after the Inspectors General of various departments, as required by section 301 of H.R. 6304, complete a comprehensive review of, and submit a final report on, communications intelligence activities authorized by the President between September 11, 2001, and January 17, 2007. The final report is not due for a year after the enactment of the bill. Any amendment that would delay implementation of [immunity] in this manner is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President’s other advisors, will recommend that the President veto any bill that includes such an amendment.

Now, I’d be charitable and buy Mike amd Mike’s claim that they’re just worried about a delay. Except that they make this completely cynical bid to suggest that the SSCI’s review of the program was adequate to expose what really happened with this program.

Deferring a final decision on retroactive [immunity] for 15 months while the Inspectors General complete the review required by H.R. 6304 is also unnecessary. The Senate Intelligence Committee conducted an extensive study of the issue, which included the review of the relevant classified documents, numerous hearings, and testimony. Read more

I Don’t Think “Accountability” Means What Obama Thinks It Does

Obama’s statement on FISA:

I want to take this opportunity to speak directly to those of you who oppose my decision to support the FISA compromise.

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That’s why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any President or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I’ve said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility

The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I’m persuaded that it is necessary to keep the American people safe — particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise. Read more

Dean and Bush and Pardons

John Dean’s piece on FISA reads with all the angst of someone who–after a number of people have demonstrated his error–is hoping to persuade Barack Obama to get him out of the hole he created for himself. "Please, Obama," Dean seems to be saying, "hold Bush accountable so I don’t have to admit immunity really is immunity."

One gaping problem with Dean’s argument is the absence of any discussion of statutes of limitation. Even if Obama did what Dean wanted–and announced he would direct his AG to immediately review the warrantless wiretap program–the Republicans in the Senate could just filibuster approval of Obama’s AG until, say, April 26, 2009 (five years and 45 days after the authorization signed by Alberto Gonzales on March 11), and the statute of limitations on the known crimes would expire.

But the proposition I find really ridiculous is Dean’s contention that Bush isn’t going to issue blanket pardons of all the law-breakers in his Administration.

Given the downside, it is not clear whether Bush would issue a pardon in this context.

If it were issued by Bush, however, a blanket pardon to his “national security” miscreants would require acceptance by them of the fact that they had broken the law, and thus an admission of guilt. Were Bush to issue such a remarkable pardon, it would, of course, cement his historical stature as several notches below even that of Richard Nixon, who refused to pardon those who (many “for national security reasons”) engaged in the so-called Watergate abuses of presidential power on his behalf. Not many presidents want to be viewed by history as worse than Nixon. And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch. It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.)

Bush is very politically savvy. He knows that a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election. Most Americans are deeply concerned about Bush/Cheney’s conduct of foreign affairs and national security, which ignores American laws and treaty obligations. Read more

The al-Haramain Decision

Due to some doozy global warming storms last night, we had intermittent power, so I’m just now getting to the Vaughn Walker decision in the al Haramain case, in which he dismisses the suit but invites the plaintiffs to submit unclassified evidence in support of their case. So there’s already a range of smart commentary on the decision. The Electronic Frontier Foundation argues that Walkers ruling bodes well for their own case–which relies on the AT&T documents liberated by Mark Klein, and not classified evidence. Wired’s David Kravets notes that, coming as it does two business days before Congress will grant the telecoms immunity, the ruling has little meaning for EFF. McJoan basically makes the same argument–Congress is in the process of taking an unwieldy bad law and making it worse.

With regards the events of the next week, I sort of agree that this ruling will have little effect. There’s nothing in Walker’s ruling that will, by itself, persuade Barack Obama to take a stand on this legislation (he’s due to make an announcement about his stance on the legislation, but I don’t think this will change it one way or another). And I agree with Kravets–once Congress does pass its immunity, this ruling will be meaningless for those suing the telecoms (though perhaps it’ll make the likely suits that the immunity itself is illegal more interesting).

State Secrets Is Not Absolute

But the decision is interesting for two other reasons. First, Walker makes a strong case that the government’s ability to invoke state secrets is not absolute. Walker cites one of David Addington’s favorite cases, Navy v. Egan, to show that even that case envisions the possibility of Congress placing limits on the President’s ability to control national security information.

But Egan also discussed the other side of the coin, stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id at 530 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required. Egan’s formulation is, therefore, a specific application of Justice Jackson’s more general statement in Youngstown Sheet & Tube. [my emphasis]

Read more

I Don’t Think “FISA” and “Expire” Mean What Obama Thinks They Do

There’s a really disturbing line in this article on backlash against Obama for his FISA stance (say "hi" to Jane, Glenn, and Markos as you read).

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.” [my emphasis]

Either Greg Craig is not the guy the Obama campaign should have discussing–much less advising him on–these issues, or Craig is simply repeating Obama’s profoundly erroneous logic.

But in either case, FISA is not expiring anytime soon. Last I checked, FISA’s been on the books for 30 years, and I have every expectation it will remain on the books for the next 30 years, regardless of how Obama votes on July 8.

Either Craig or Obama is making the common–but ignorant–mistake of conflating the Protect America Act with FISA. The former does expire in early August. The latter does not.

I might be accused of pedantry by maintaining this distinction. But its useful to maintain the distinction because it focuses on the differences between FISA and PAA. FISA provides a way for the government to wiretap individuals legally, while providing real protections for American citizens. Whereas PAA provides the government the ability to get basket warrants based on the say so of the Attorney General, dramatically eroding the protections for American citizens.

When someone erroneously claims that FISA is going to expire shortly, it’s a good bet that that person is thinking about retaining the basket warrant provisions of the PAA and not–as the spin suggests–simply "modernizing" FISA so the government can wiretap foreigners via telecom circuits in the United States. 

It’d be useful if someone asked the Obama campaign which of these authorities Obama is really intent on maintaining.