I’m in a wretched mood because Sears just called and told me, after assuring me last week they could get me a fridge this week, and after they sent me a badly damaged fridge yesterday, and after then promising I’d have a fridge today, then kept me on the phone for an hour and a half to tell me they won’t actually have my replacement fridge to me until Monday and oh by the way would you like a gift card for the trouble of having to unload and reload three different fridges so you can shop at our crappy store some more?

I tell you, always buy local or you’ll end up looking like a chump like me.

So I thought I’d put my crappy mood to some use to try to brainstorm the appropriate moniker for what the telecoms after they receive their Congressional pardon sometime next week. They won’t really be "pardoned felons," because we never got to the point of a jury trial to certify them as felons. I guess "pardoned lawbreakers" might work, but it’s not very catchy.

Once we figure out a catchy name for what you call corporations after the President and Congress decide to put aside separation of powers in order to make sure they avoid any consequences for their law-breaking, I figure we can do some google-bombing and make their legislative win a PR disaster.  

To my letter to him. He told me to fuck off.

Statement of Senator Barack Obama on FISA Compromise

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year’s Protect America Act.

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people.

In case you couldn’t parse the three bolded sentences yourself, here’s my take on them.

1. I will make a showy effort in the Senate on Monday to get them to take out immunity. I will lose that effort 32-65. But hey! I can say I tried!
2. But don’t worry, little boys and girls, Inspectors General are an adequate replacement for our third co-equal branch of government!
3. Nice little bloggers! Aren’t you cute! After you demanded accountability we gave you piggy lipstick and fig leaves and told you it was time to move on while we important Senators told you–in polite terms–to fuck off.

Senator Obama:

In his recent opinion on the Boumediene case, conservative Justice Anthony Kennedy reminded the Executive and Legislative branches that we cannot suspend the Constitution in times of crisis.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

He went on to remind "the political branches" that the Article III Courts must not be turned into a mere rubber stamp for the Executive Branch–particularly when, as with habeas corpus, those Courts review laws designed to serve as a check on the Executive Branch.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

Ultimately, the Supreme Court found aspects of the Military Commissions Act unconstitutional because it tried to limit the review of Article III Courts to mere review of whether the Administration had complied with its own procedures, and not a real review of the legality of the detention of men at Gitmo.

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

Yet this is precisely the kind of procedural review that the current FISA bill envisions. The "political branches" are attempting to limit court review of wiretaps on Americans to a procedural review in three ways:

• The Court can only certify that the current Attorney General has claimed the warrantless wiretap program was legal; it cannot assess the representations to the telecoms, nor review the legality of the underlying program.
• The Court can only approve the procedures planned in a given wiretap program, it cannot review whether the actual program is legal.
• The Court can only review proposed minimization procedures intended to protect US persons’ data; it cannot review whether the Administration is actually following its own minimization procedures.

The Courts’ role in protecting Americans’ Fourth Amendment rights is just as important a check on unrestrained executive power as its review of habeas corpus. After all, the Fourth Amendment, just like habeas corpus, is a foundational principle of this country designed to guard against the abuse of power familiar before our Forefathers revolted against the rule of Kings. As Justice Kennedy said, we cannot suspend these principles simply because the country faces a crisis.

Senator Obama, you are asking voters to choose you to become the President of the United States. You had to as Senator–and will as President–swear an oath to protect and defend the Constitution.

You cannot remain silent on this issue and at the same time fulfill your promise, the one you have made, and the one you will make, to defend the Constitution. Remaining silent rejects the separation of powers. Remaining silent presumes that the "political branches" can simply legislate the Courts into submission. And remaining silent communicates that you–the next President of the United States–believes checks on executive power like habeas corpus and the Fourth Amendment are mere niceties and not foundational principles of this great nation.

As the presumptive leader of the Democratic Party, you can lead your fellow Senators in rejecting this unconstitutional law. But without your leadership, the Constitution will suffer a dangerous blow.

Here it is.

Immunity

As Glenn says, the "immunity" provision here sucks ass. Here’s the operative language:

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that

[snip]

(4) the assistance alleged to have been provided by the electronic communication service provider was —

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

Contrary to what the WSJ suggested, this provision puts no restrictions on whether the directives were authorized by anyone but the President–all it takes to get off scott free, in this bill, is for the President to have said the program was legal, regardless of whether it was or the whether the telecoms should have questioned whether the directives were legal.

Minimization

The minimization rules on this still suck. FISC gets to review the procedures themselves, to make sure they will adequately protect US persons’ data. But the FISC does not get to review whether the government is doing what it says it’s doing with regards to minimization–the AG and the intelligence branch still get to do that.

Wiretapping Overseas

This bill provides significantly more protection for Americans traveling overseas, requiring an extra level of review before tapping an American traveling abroad.

Wiretapping in the US

This bill has slightly more protections for Americans in the US, prohibiting wiretaps if a communication is intended entirely for people within the US. That’s a slight improvement, of course, because the bill still allows the collection of information on–say–an email in which one person is outside the US.

Use of Information

The bill addresses a problem that Russ Feingold identified–what happens to data collected in a program that the FISC subsequently finds improper. Feingold wanted the goverment to have to get rid of this data. This bill strikes a middle ground: it prohibits the government from using such data in a trial or other official hearing. But it still gets to keep the data improperly collected.

Exclusivity

The bill does contain a reasonable exclusivity provision, which virtually guarantees they’ll get DiFi’s support:

Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.

Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United Staes Code, shall constitute an additional exclusive means for the purpose of subsection (a).

This would seem to prevent the John Yoos of the world from pretending that the AUMF constitued authorization to wiretap.

Review of the Illegal Program

The bill takes an idea included in the House bill–a review of the program to find out what really happened–and dumps that review into the lap of the Inspectors General of the various agencies (the House bill had called for a bipartisan commission). The OPR review of the authorization of the program is included in this. An IG picked by the President and approved by the Senate will, a year after the bill is passed, present an unclassified report on the program (with classified annex). That review cannot name anyone in the private sector involved in the illegal wiretapping.

I’ll work on fleshing this out with the bill’s language–let me know what you see in the bill in the thread…

CQ and WSJ are finally giving more details about what Steny and Jello Jay have concocted with their Republican buddies and telecom lobbyists. CQ confirms what we’ve been hearing–that the immunity would basically consist of a District Court reviewing the authorization, with almost no way to rule against the telecoms.

One source said the federal district court deciding on retroactive immunity would review whether there was "substantial evidence" the companies had received assurances from the government that the administration’s program was legal.

And it appears that Steny’s grand bargain consists solely of prospective review of the programs, rather than review as the program is being implemented.

Under the prospective deal, the secret court created by the original law would get to review, in advance, the process by which the administration chooses foreign surveillance targets who may be communicating with people in the United States.

Of course, note the word "process" here–it sounds like FISA still doesn’t get to review the actual choices.

There’s an interesting wrinkle in the WSJ version, though, that I find notable. The telecoms would have to prove that either the AG–or an intelligence agency head–signed off on the wiretap requests.

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed. [my emphasis]

That’s an interesting detail, because up until now, we’ve been told that the Attorney General approved this program, with the sole exception of the period immediately following the hospital confrontation on March 10, 2004. After that confrontation, the SSCI had reported, the White House Counsel (yup–Alberto Gonzales) approved the program for a period of not more than 60 days.

As SSCI points out, the telecoms would be immune from prosecution if they had been authorized to conduct wiretaps under 18 U.S.C. § 2511(2)(a)(ii).

Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain otherofficers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii).

I’ve bolded those words, "or certain other officers," to emphasize that Jello Jay and the Republicans didn’t actually specify what the law says. So let’s look at the law, shall we?

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

The law says that only the AG or someone specified in 2518(7) may provide the telecoms with the certification that their actions are legal. Here’s what 2518(7) says:

(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— [my emphasis]

So the only people who may give telecoms the authorization that their eavesdropping is legal are: the AG, the DAG, the AAG, and any principal prosecuting attorney, such as a USA [Actually, maybe this means a State AG].

Yet, as the report informs us, for a period of time (a period of time, I might add, at some remove from 9/11), none of those people had signed off on the wiretapping program. After the Deputy Attorney General, as the Acting Attorney General refused to endorse the legality of the program, Alberto Gonzales authorized it.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

But Alberto Gonzales was not then one of the named people who could authorize such wiretaps. He was an attorney, but not a prosecuting attorney. In fact, at the time, he was not a law enforcement officer at all (unless you count someone enforcing Cheney’s law as a law enforcement officer).

So now we’re to believe that it was not Gonzales’ say-so that made the program "legal," it was the say-so of the head of an intelligence agency (either NSA or CIA)?

How come I get the feeling that J Edgard Hoover would love this kind of immunity, that said that the President and an intelligence head could decide to spy on citizens if they wanted to?

Christy says the bill number will be HR 6304, but I can’t find it yet on Thomas.

As you know, the FISA Amendments Act has been being negotiated behind closed doors by Steny Hoyer, Kit Bond and friends for some time now. See here and here. Well, the action is coming a little faster than we all anticipated.

It now appears quite clear that either the House will vote on the War Funding Supplemental and then go to the FISA Amendments ACT or, and it is not clear at this time what the odds on this are, link the two bills and vote on both at the same time. Here is what we do know. House has finalized their war supplemental bill, and it appears to be a go for a vote tomorrow (Thursday). So, the best evidence is that the vote on FISA will be on Friday June 20, and may be as early as Thursday night. There is precious little time left to make our voices heard.

Here is what Liz Rose from the ACLU gave me for publication:

One thing bugging me is that we do not have the Hoyer draft and neither do reporters; and yet some reporters are believing every single word Hoyer says. Feingold, Leahy, Conyers do not have the draft; the only people who do have it are Rockefeller, Bond, and Hoyer. People who are for the proposal. And yet I have not yet heard anyone question why that is. No sunshine and no one demanding to see the details.

Plus, even if leadership will vote with us, and act like they are on our side, the truth is they control the calendar. Nothing happens unless they want it to. It is so cynical and calculating. And it seems that the unwritten story is that this whole FISA cave in is really all about the DCCC and their worries about freshmen dems getting re-elected. They are not afraid of terrorists — they are afraid of ads about terrorists. If they were really afraid of terrorists they would just extend the orders. But all they really want is to reward the big telco contributors and get more checks for their campaign coffers. It is all political.

But I think they are wrong. Fear mongering did not help Guiliani win. And remember how good the House Dems were when they stood up on FISA and said no to the senate bill?. I will keep you up to date. Thanks. Liz

She is right. We, and more importantly, the Constitution, are being sold out for rank political posturing. Pitiful state of affairs that.

Here is the latest scheduling information from the House I can find.

Subject: House Approps 2008
TRACK BILLS: House Approps 2008
Draft Bill — Fiscal 2008 War Supplemental Appropriations (House)
Official Title: Fiscal 2008 War Supplemental Appropriations (House)
Cosponsors: No reported cosponsors
Next Scheduled Action: June 19, 2008 — Scheduled action — House Rules Committee (Chairman Slaughter, D-N.Y.) will consider a rule for floor debate for pendiing legislation. Time TBA, H-313 Capitol Bldg. New
NEW on this bill
Bill Actions
June 19, 2008 — Scheduled action — House Rules Committee (Chairman Slaughter, D-N.Y.) will consider a rule for floor debate for pendiing legislation. Time TBA, H-313 Capitol Bldg. New

So, for any Wheelers and Lakers, if you find better information, please post in the comments. Maybe we will have a longer period to act in, but history shows that we must assume the worst. That means the FISA vote, the big kahuna, is going to be Friday, and maybe even Thursday night. Heave Ho.

Steny Hoyer wants you to believe he’s having a discharge problem.

But he’s not.

Which is kind of weird, don’t you think? That Steny would try to excuse his own cowardly actions because of someone’s–or someone’s lack of?–discharge, when, as sympathetic as you might be to Steny about his discharge problem, you know it’s just an embarrassed excuse. 

And frankly, you realize that the Constitution trumps Steny’s discharge problem anyway? 

Honestly, now, if Steny’s having a bunch of so-called Democrats coming to HIM with their own problems with civil liberties, just five months short of the election, we Democratic voters ought to know about that. With names attached.

But right now, Steny’s got nothing. But his own claimed discharge problems. 

I’ll be in my Scottie McC daze for one more day yet, but I wanted to point those of you with free time to this Ryan Singel post and the collection of documents he’s reporting on. The EFF just got a slew of documents recording the questions the FISA Court asked of the FBI.

Does the FBI track cellphone users’ physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database? Does the FBI’s wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?

That’s what the nation’s Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau’s counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.

I’m most intrigued (though not at all surprised) by this question.

In October 2005, the court also asked the FBI to explain how it stored "raw" foreign-intelligence wiretap content and information about Americans collected during those wiretaps.

The government is supposed to "minimize" — that is anonymize or destroy — information gathered on Americans who aren’t the targets of a wiretap, unless that information is crucial to an investigation.

The court wanted the FBI to explain what databases stored raw wiretaps (.pdf), how those recordings could be accessed, and by whom, as well as how minimization standards were implemented.

The documents don’t reveal the answer to that question. The FBI did not respond to a request for comment by press time.

The question came, of course, just months before the NYT broke the story on the illegal wiretap program. You think maybe there’s a connection?

Whether by design or random chance, there is so much information, on so many and diverse subjects, flooding the politically astute citizen currently that it is hard to keep track. It seems like we are drawn from one crisis and seminal issue to another with the passing of not every day, but with the passing of every hour. And yes, they are all pretty much that important; but there are some that portend not just how we do in our lives, but who we are and what we stand for in the first place. Chief among those is the question of whether we are a nation of men freelancing in the public trough of goodwill, or a nation of laws in which men operate within the rule of law and under the edicts and guidance of our founding fathers and the Constitution they bequeathed us.

One of these issues has been at the forefront of out conscience for nearly a year now; the issue of how to improve the Foreign Intelligence and Surveillance Act (FISA) for the future we face and how to address the criminal violations of FISA we have suffered in the past. How we resolve FISA will go a long way indeed in indicating whether we are a nation of admirable laws or, alternatively, of mere opportunistic men.

The three critical parts of FISA that are the subject of the heated and protracted fight over reform are exclusivity, minimization and retroactive immunity. Simply put, exclusivity refers to the relative degree in which the resulting FISA law will control this area of the law. The original FISA statute was designed to be the

…exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted.

As Marcy Wheeler has pointed out however, the Bush Administration performed a terminally disingenuous end run around the exclusivity mandate of FISA via one of John Yoo’s made to order faux legal opinions. The exclusivity provisions must be made impervious to such sophistry and with sufficient teeth to insure future compliance by the executive branch.

Minimization is the word for the procedures the government uses to

remove and (eventually) delete any data from US persons collected incidentally in the course of surveilling someone overseas. If we could be guaranteed that minimization procedures are sound, then the whole debate over wiretapping would be easier because we could rest assured that if the NSA picked up anything on a US person it didn’t have a warrant for, it had to destroy it. That would mean that Americans could trust that they would only be wiretapped with a warrant approved (eventually, anyway) by a judge.

We live in an ever complex society served by ever more sophisticated communication means and devices. Even when our government takes it’s duties to protect the privacy and fundamental Constitutional rights of the citizenry seriously, which has certainly not been the case over the last seven plus years, it is impossible to not incidentally and accidentally collect up information that should not be so obtained. Getting minimization right means that the government will not wrongfully retain and/or use inappropriately obtained information and data.

Retroactive immunity is by far the most easily understood of the three concepts. The sole question is whether or not approximately forty lawsuits, that have already been consolidated into one general whole in the Northern District of California, for the convenience and economic efficiency of all concerned, will be dismissed in order to cover up the misdeeds and crimes of the Bush Administration and the rich multinational phone companies that conspired with them, or whether they will be allowed to legally proceed so that we may all learn the truth about what has been done in our name and accountability therefore assigned. It is really, at the root, that simple; truth and accountability or craven coverup.

The desperate push on FISA by the Bush Administration, complicit and subservient Republican Congressional leaders, and their telco partners is about to explode onto the forefront again. You are already starting to see the advance seeding by proponents seeking to seed the public with fear and alarm that if we don’t get on board with the whims and desires of the Bush Administration we will be exposed to terrorism and all die. In direct response, Professor Martin Lederman performs a beautiful technical dissection of this fraudulent scare tactic in full detail here.

No, the FISA fix is not about "listenin to al-Qaida to protect America from terrists" as George Bush et al. would have you believe. We have been doing that, and are going to continue to do that; and there is no disagreement whatsoever on that point. Rather, how we resolve FISA is what the disagreement is about, and it is a glaring symbol of what we are, and are going to be, as a country. We are either a nation of laws that protects citizens and their right to seek redress for being wronged by their government and it’s agents, or we are a nation of self serving men like George Bush and Dick Cheney that can, and do, get away with whatever illegal and immoral acts they desire.

Two men that have recognized that fact and stood resolutely and heroically from the outset are Senators Chris Dodd and Russell Feingold. Today, they remind us of what leadership truly is by way of a joint letter to the Democratic Leadership currently controlling the shape of the FISA fix process coming to a head.

As you work to resolve differences between the House and Senate versions of the FISA Amendments Act of 2008, we urge you to include key protections to safeguard the privacy of law-abiding Americans, and not to include provisions that would grant retroactive immunity to companies that allegedly cooperated in the President’s illegal warrantless wiretapping program.

With respect to immunity, we are particularly concerned about a proposal recently made by Senator Bond, and want to make clear that his proposal is just as unacceptable as the immunity provision in the Senate bill, which we vigorously opposed. As we understand it, the proposal would authorize secret proceedings in the Foreign Intelligence Surveillance Court to evaluate the companies’ immunity claims, but the court’s role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received "a written request or directive from the Attorney General or the head of an element of the intelligence community … indicating that the activity was authorized by the President and determined to be lawful."
…
In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

As we have explained repeatedly in the past, existing law already immunizes telephone companies that respond in good faith to a government request, as long as that request meets certain clearly spelled-out statutory requirements. This carefully designed provision protects both the companies and the privacy of innocent Americans. It gives clear guidance to companies on what government requests it should comply with and what requests it should reject because the requirements of the law are not met. The courts should be permitted to apply this longstanding provision in the pending cases to determine whether the companies that allegedly participated in the program should be granted immunity.

Take a good look; read the whole letter. This is what real leadership looks like. If Pelosi, Hoyer, Reid, Rockefeller, and Reyes all had even half of the "right stuff" that Dodd and Feingold possess, we would not need to have this discussion. But, alas, they do not and, as a result, our collective backs are again against the wall on FISA. More, and higher leadership needs to occur.

Barack Obama has fought long, hard and well to win the chance and right to lead both the Democratic Party and the nation as a whole. It is time for him to so lead, and his leadership will make the difference in this fight if he is willing to take the mantle. I am not the first to call on Mr. Obama to step up to the plate. Last week, when the news first broke that HPSCI Chairman Reyes was indicating his, and his fellow Democratic House Leaders’, willingness to compromise cave and pass the Bush/Cheney FISA dream, dday at Digby’s Hullabaloo made a very eloquent plea:

I congratulate Barack Obama on his primary win and think he has the opportunity to bring forward meaningful change in America. In fact, he can start today. He can go to the well of the Senate and demand that the party he now leads not authorize new powers to spy on Americans and immunize corporations who broke the law with their illegal spying in the first place.
…
Barack Obama could put an end to this today if he wanted. He could tell his colleagues in the House and the Senate that they should not work so hard to codify into law what his opponent is calling for – the ability for an executive to secretly spy on Americans.
…
This really is identical to George Bush’s position and now the Democrats in the House are signaling their willingness to go along with it. Obama positions himself as a new kind of Democrat who wants to change Washington and has a background as a Constitutional scholar. There is no other issue which both shows the rot of the Democratic leadership and their disinclination to enforce or even recognize the Constitution than this one.

Truer words were never spoken. The time is now Mr. Obama, and you are the man. Even the Kennedys have put Mr. Obama up as a John F. Kennedyesque figure. Well, it is time for a Profile In Courage. And not just by Mr. Obama, but by all of the Democratic Leadership. The cause is just; the time is now. Limber you fingers. Oil your fax machines. Let Mr. Obama know that when he leads on this critical issue that we will not only follow, but will have his back. This is who we are; this is what we stand for. Let him know. NOW!

UPDATE II: The ground is shifting already. From The Hill:

Congressional Republicans are reviewing a Democratic proposal to break the logjam on electronic-surveillance legislation by allowing federal district courts to determine whether telephone companies seeking legal immunity received orders from the Bush administration to wiretap people’s phones.

That differs from a plan that Republicans, with support from the White House, floated right before Memorial Day that would give that authority to the secret court that operates under the 1978 Foreign Intelligence Surveillance Act (FISA). In both cases, the courts would not decide whether those orders constitute a violation of the law, according to people familiar with the language. The plan was floated by House Majority Leader Steny Hoyer (D-Md.) and has the support of Sen. Jay Rockefeller (D-W.Va.), the chairman of the Intelligence Committee.
…
“While several issues still remain, Sen. Bond believes he and Hoyer are making progress on crafting an ultimate compromise and remains hopeful that a bill to keep American families safe can be signed into law before the August expiration moves the intelligence community back to 1978,” said Shana Marchio, communications director for Sen. Kit Bond (R-Mo.).

Rockefeller said he is “mildly optimistic” that the plan could yield agreement, and added that the status of negotiations is “getting pretty darn good.” (Emphasis added)

The Democratic Leadership takes us for fools, and treats us accordingly. They have taken the Republican/Bush-Cheney White House dream plan and substituted the words "District Court" for "FISA Court" and run it up the flag pole to see if we will salute. Even Jello Jay Rockefeller seems like he might realize that this is pitifully weak and lame and is just hoping the citizenry is stupid enough to acquiesce. Let me repost the applicable paragraph from Senators Dodd and Feingold that addresses this latest ruse, with the only changes necessary:

In other words, under the Bond Democratic Leadership’s proposal, the result of the FISA District Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA District Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

This willingness of the Democratic Leadership to belligerently betray the trust and best interests of their constituents, party and country is simply stunning. This is weak, shameless and traitorous leadership at it’s craven worst.
(h/t MadDog)

UPDATE I: Sen. Obama Phone (202) 224-2854, FAX (202) 228-4260 Courtesy of Rosalind in comments.

After significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."

Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:

Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.

As it happens, DOJ actually appears to be somewhat cognizant of the legal hackery of this Yoo opinion. When he learned DNI had declassified the passage from the opinion, Brian Benczkowski sent a letter to Senators Whitehouse and DiFi, trying to claim that Yoo’s opinion is unremarkable:

The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President’s constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties.

Then, after ignoring the question of whether Yoo’s interpretation of "reasonably possible" was itself reasonable, Benczkowski went on to stress that DOJ gave up Yoo’s opinion in 2006 and replaced it with more hackery.

However, as you are aware from a review of the Department’s relevant legal opinions concerning the NSA’s warrantless surveillance activities, the 2001 statement addressing FISA does not reflect the current analysis of the Department. Rather, the Department’s more recent analysis of the relation between FISA and the NSA’s surveillance activities acknowledged by the President was summarized in the Department’s January 19,2006 white paper (published before those activities became the subject of FISA orders and before enactment of the Protect America Act of 2007). As that paper pointed out, "In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute [in the AUMF] had confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland."

As he did with Yoo’s opinion, Benczkowski also ignored the question of whether this claim–that the AUMF authorized Bush to ignore FISA’s exclusivity provision–was reasonable, particularly when Tom Daschle, who was Senate Majority Leader when the AUMF was passed, insists that Congress specifically refused to give the President war powers within the US.

As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

Pretty much, Benczkowski is stuck in the unenviable position of trying to claim the warrantless wiretap program was legal, when it clearly wasn’t. He ends his letter with a pathetic plea to the Senators not to circulate Yoo’s interpretation of exclusivity by itself.

Accordingly, we respectfully request that if you wish to make use of the 2001 statement in public debate, you also point out that the Department’s more recent analysis of the question is reflected in the passages quoted above from the 2006 white paper.

As if that makes ongoing DOJ hackery defensible.