On What Terms Will this Administration Spy on Americans?

I think these Senators are really getting tired trying to teach their Republican colleagues about the rule of law and the importance of all three branches of government.

Thanks to Selise for the YouTube. One highlight:

I know the Bush Administration fears and despises Judicial Oversight. Probably with very good reason.

And check out Whitehouse quoting Scalia starting at 7:55.

There was a sense of a sharp necessity to separate the legislative from the judicial power at the founding of our government. This sense of sharp necessity triumphed among the framers of the new Federal Constitution. And it did so–again quoting the decision–prompted by the crescendo of legislative interference with private judgments of the Court.

Nice touch, Whitehouse. 

Just a quick summary of where things stand. The amendments that Harry Reid believes won’t be close will be voted on tomorrow. It will almost certainly go into Wednesday. If Mitch McConnell has his way, though, he’ll push the FISA vote out until Thursday or Friday to hand it to the House with no time to fix it.

One more point. If I’m not mistaken, Harry Reid was really worried about giving Hillary and Obama the opportunity to get back to vote on the Stimulus Package. But apparently they seem a lot less interested in getting back to vote for our privacy and civil liberties.

FISA Liveblog

Reid is on the floor talking about what votes we’ll have tomorrow:


Argh. This means we won’t have 60 there for exclusivity.

Reid and Mitch McConnell had some back and forth on the stimulus package.

Kit Bond:

Thank colleagues for agreeing to a way forward on this bill. Hehehe, it would do no good to pass a good that is good for politics, but does not do what those who protect our country need. With these fixes we’ll have a bill the President will sign.

Shorter Kit: this is very very technical and so we’ve decided to just do away with Congressional review and, while we’re at it, privacy. What Mike McConnell wants, Mike McConnell gets.


In this debate about revising FISA and cleaning up the damage done by the President’s warrantless wiretap program, the Administration expends all its rhetorical focus on what we agree on.

On what terms will this Administration spy on Americans?

The privacy of Americans from government surveillance.

Both Chairmen–Leahy and Rockefeller–have given it their blessing.

As former AG and USA, I oversaw wiretaps, and I learned that with any electronic surveillance, information about Americans is intercepted incidentally.

In domestic law enforcement, clear ways to minimize information about Americans. Prospect of judicial review is an important part of protecting Americans. Bond and Rockefeller have already put into the bill that the authority to review the minimization if the target is an American inside the US. But as will often be the case, the target will often be outside the US. An American could just as easily be intercepted in these situations. This protection (review of minimization) should apply when the intercepted It makes no sense to strip a court based on the identity of the target. It may be that if there’s litigation that a court will decide that it is implied. The mere prospect of judicial review has a salutary effect. The opposite is true as well, when executive officials are ensured that a Court is forbidden to police enforcement, then they are more apt to ignore compliance. Both here, where the FISA bill creates an unheard of limit on Court powers, and in the immunity debate, where we intercede to choose winners and losers. Bad precedent for separation of powers. Those of you who are Federalist Society members should be concerned about this absence of separation of powers. Read more

FISA Fight Reconvenes at 2

The Senate will take up the FISA fight again today at 2:00, now missing not just the three presidential candidates, but possibly others campaigning for their colleagues. Among the many ways last week’s compromise on FISA really hurt our cause, scheduling the vote for the day before Super Tuesday is at the top of the list. [Update: there will not be a FISA related vote today, we’ll have debate. But I still doubt we’re going to hold off the votes until Wednesday, when everyone will be back from Super Tuesday.]

cboldt has a slightly updated post on what the Senate will be voting on here. By far his most important update is this:

The Senate has formally signaled that it will not request a conference with the House, to resolve differences. At this point of the process on the FISA bill, a conference request is premature because the House has yet to weigh in on the Senate’s proposed legislation. While the two bills are different, the formality of disagreement is presently absent. See Riddicks – Conferences and Conference Reports, in particular pp 467-8, which describe the interaction between both chambers.

For those of you hoping we’ll restore some of the protections from the House Bill (sorry, no pun intended) during conference, I take this to mean that we may well never get to conference, and therefore may never get to improve on the Senate bill once the Senate passes it.

So it behooves us to call our Senators and lobby for them to improve this bill now, in the Senate. When you call, I suggest you tell them to:

  • Oppose telecom immunity. While it’s unlikely that we’ll get the 51 majority vote to pass Dodd and Feingold’s amendment, pushing hard against immunity may convince them to support one or both of the compromise immunity amendments (I just learned this one requires majority vote of those voting, not 51).
  • Support court review of minimization procedures. Right now, the Administration is obligated to tell the FISA Court how they intend to make sure your data and mine isn’t rounded up in un-related searches and then used. But they don’t have to prove to the Court that they’re doing what they say they’ll be doing. Encourage your Senators to support Whitehouse’s amendment giving the FISA Court review of whether the Administration is doing what they say they’re doing. As we know, more often than not, they’re NOT doing what they say. Minimization is one of the things that Republicans consistently say they support, so if your Senator(s) is a Republican, remind him or her that this is really about protecting Americans’ civil liberties and privacy. Read more

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

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?

Not Just Immunity

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

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

Reid Thanks Christy and McJoan on FISA

I’m at a schmoozy event at the Senate today–Harry Reid gave an opening speech focusing on the areas where progressive loud mouths have really helped out the Senate.

He spoke for a bit about FISA–repeating what he has said publicly (that if the Republicans won’t accept a PAA extension, then it will expire). But at the very start of his speech he named some of the people who had helped most on the FISA bill. McJoan (from DailyKos) and FDL’s own Christy were the first two people he mentioned.

Was It Her Colleagues, or Her Constituents?

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?]