The Coming Showdown -- 3: FISA fight in a nutshell

By Carol Gee

On amending FISA, the Foreign Intelligence Surveillance Act: Once again lots of action bubbled on and off the floors in the U.S. Congress Tuesday. Various elements of the House, the Senate and citizen activists went toe to toe over what to do with this highly contentious legislation. Those of us who are "little bloggers" need to give well-deserved kudos to the "big bloggers" taking the lead in such magnificent ways. They deserve the country's gratitude for public service: Glenn Greenwald at Salon.com, Jane Hamsher and "empty wheel" at Firedoglake, Chris Bowers and Tim Tagaris at Open Left, and "mcjoan" at DailyKos. We couldn't do it without you!

The Protect America Act (PAA) would have expired February 1 at the end of its six month limit, but it has been extended. By voice vote, the House of Representatives passed a 15-day PAA extension that had been agreed to by the White House. Then the House promptly left to go on retreat for the rest of the week. The Senate has also agreed to the extension, according to Rep. Steny Hoyer. (ht to FDL)

The blogosphere went into action against this backdrop with a contact-your-senator campaign urging wavering lawmakers to stand firm against the Republican tactics. Thousands of e-mails, phone calls and faxes bombarded senate offices urging support for Senator Reid's announced position of opposition to a Republican cloture motion set for a Monday afternoon vote. The motion failed, as did a subsequent cloture vote on a proposed 30-day PAA extension. Informal debate on the FISA issues has continued in the Senate.

In the Senate two bills are in play. A bipartisan compromise bill demanded by the administration came out of the Intelligence Committee and eventually to the floor for debate. It featured retroactive immunity for the cooperating telecommunications companies that have allegedly been helping the government with the spying program since the beginning of this administration. A Judiciary Committee version, offered better civil liberties protection and omitted the "telecom immunity," was never brought to the floor. However a number of Senators wanted to offer key elements of it as amendments to the Intel Committee bill. So far, the Republicans have successfully prevented that, demanding that a so-called "clean" bill the president would sign, be passed without amendment. Now the Senate will likely have an opportunity to actually debate and amend the flawed Intel bill, title by title.

Key Senators -- Significantly, key bloggers met with Senator Russ Feingold, who gave them a little demo about the FISA bill. Senators Clinton and Obama were on the Senate floor to vote Monday afternoon and Senator Obama's statement is here DailyKos' mcjoan provided the latest on this whole episode, including the upcoming action needed with Senators who need propping up by the blogosphere. To quote:

So here's our new target. Call, fax, and e-mail Senator Rockefeller and the likely suspects among the Democrats to urge them to make sure that all of the Democratic caucus's FISA amendments get to the Senate floor and that they establish a 50 vote threshold on Democratic amendments.

• Rockefeller, (202) 224-6472 phone, (202) 224-7665 fax
• Bayh (202) 224-5623 phone, (202) 228-1377 fax
• Carper (202) 224-2441 phone, (202) 228-2190 fax
• Feinstein (202) 228-2190 phone, (202) 228-3954 fax
• Inouye (202) 224-3934 phone, (202) 224-6747 fax
• Johnson (202) 224-5842 phone, (605) 341-2207 fax
• Landrieu (202)224-5824 phone, (202) 224-9735 fax
• Lincoln (202) 224-4843 phone, (202) 228-1371 fax
• McCaskill (202) 224-6154 phone, (202) 228-6326 fax
• Mikulski (202) 224-4654 phone, (202) 224-8858 fax
• Nelson (FL) (202) 224-5274 phone, (202) 228-2183 fax
• Nelson (NE) (202) 224-6551 phone, (202) 228-0012 fax
• Pryor (202) 224-2353 phone, (202) 228-0908 fax
• Salazar (202) 224-5852 phone, (202) 228-5036 fax

Here is a list of free "800" numbers at the capitol, through which you can call Senate offices (courtesy of Firedoglake). I can verify that they work. Within the past few days I reached 14 different Senator's staff members directly. To quote:

• 1-800-828-0498
• 1-800-459-1887
• 1-800-614-2803
• 1-866-340-9281
• 1-866-338-1015
• 1-877-851-6437
  

The PAA is only the latest iteration of FISA updates or changes to the original legislation passed in 1978. Though the temporary PAA will sunset, the main law, FISA remains in place to offer the basic needed framework for surveillance of suspected enemies of the U.S. Despite claims to the contrary, there will not be any lapse that puts the U.S. deeply at risk of a terrorist attack. Emergency measures are available for whatever eventualities occur with the NSA surveillance apparatus.

(Cross-posted at South by Southwest.)

One word: "waterboarding"

By Carol Gee

. . . was the subject of 29,300 posts carried by my news aggregator Bloglines this morning. The word simply will not go away. In fact, someone I know dreamed about George Bush and waterboarding. It is very serious business when something in the news disturbs the sleep of perfectly normal people.

What is so disturbing about the practice of waterboarding being carried out by people in the name of the U.S. government? It is hard to put into words, but here are a few that come quickly to mind: It is flat wrong. It is un-American. It is stupid. It is illegal. It is uncivilized. It is counterproductive. And it is terribly destructive to the fabric of of our nation's illustrious history of freedom and justice.

I found even better words, however, in my Sunday paper, written by one of my favorite columnists, Joe Galloway, described by his newspaper this way:

ABOUT JOE

General H. Norman Schwarzkopf has called Joseph L. Galloway, a military columnist for McClatchy Newspapers, "The finest combat correspondent of our generation — a soldier's reporter and a soldier's friend."

Galloway is the co-author, with Lt. Gen. Hal Moore, of "We Were Soldiers Once ... and Young," a story of the first large-scale ground battle of the Vietnam War. The book was made into a movie of the same name. Galloway was portrayed in the movie by actor Barry Pepper.

He knows from whence he speaks -- McClatchy's Newspapers Joe Galloway, a Texan, seems very disturbed as evidenced by his most recent column. Dated (11/7/07), the author titled it simply, "Commentary: Is waterboarding torture -- Yes." To quote:

All of Judge Michael Mukasey’s artful dodging and word play to avoid acknowledging the obvious to the august members of Senate Judiciary Committee does nothing to change the fact.

When you hog-tie a human being, tilt him head down, stuff a rag in his mouth and over his nostrils and pour water onto the rag slowly and steadily to the point where his lungs fill with water and he's suffocating and drowning, that is torture.

Four decades ago in the field in Vietnam, I saw a suspected Viet Cong waterboarded by South Vietnamese Army troops. The American Army advisers who were attached to the Vietnamese unit turned their backs and walked away before the torture began. It was then a Vietnamese affair and something they couldn't be associated with.

Galloway goes on to write the most rational, succinct and passionate piece I have ever seen on the subject of waterboarding. I now realize what former Assistant Attorney General Jack Goldsmith (who rescinded the Justice Department's original torture memo) was talking about. In one of my previous posts, "Following the Rule of Law - - Part II," Goldsmith talked about what everyone involved was afraid of, actual prosecution. To quote further from Galloway,

Waterboarding is torture in the eyes of all civilized peoples, no matter how desperately President George W. Bush tries to rewrite the English language, with which he has only a passing familiarity, anyway. No matter how desperately his entire administration tries to redefine the word "torture" to cover the fact that not only have they acquiesced in its use, but they also have ordered its use.

The president, Vice President Dick Cheney, and their cronies and legal mouthpieces such as David Addington, John Yoo and Alberto Gonzales are doing all they can to avoid one day facing the bar of justice, at home or in The Hague, and being called to account for crimes against humanity.

They want a blank check pardon, and they'll continue searching for attorneys general and judges and justices and senators and members of Congress who'll hand them their stay-out-of-jail-free cards.

As they squirm and wriggle and lie and quibble and cut deals with senators, they claim that "harsh interrogation methods" are necessary to prevent another 9/11. But as terrified as they are by terrorists, they also fear that one day they may be treated no better than some fallen South American dictator or Cambodian despot or hapless Texas sheriff; that they might not be able to leave a guarded, gated compound in Dallas or Crawford, a ranch in New Mexico or the shores of Chesapeake Bay for fear of arrest and extradition.

Galloway's conclusion lays it out more clearly than I have seen written to date on the subject of waterboarding. Quote:

Now the Democrats, or some of them, are conspiring with them to seat an attorney general who will help facilitate the ever more frantic search for ex post facto immunity for their crimes. Shame on them! There’s such a thing as too loyal an opposition; too cowardly an opposition; too craven an opposition.

Waterboarding is torture. Decent people have acknowledged that for centuries. We sent Japanese war criminals to the gallows for using it. We sent a Texas sheriff to prison for using it. One day, an ex-president and those who helped him and those he ordered to torture fellow human beings may have to plea bargain for their lives and their freedom.

The one word for voters to ask presidential candidates should be, "How do you feel about waterboarding?" It is not a complicated or convoluted question. It is simple. And the answer should be simple. "Never again."

References:

1. "The Terror Presidency: Law and Judgment inside the Bush Administration," by Jack Goldsmith
2. Lapopessa's "A History of Waterboarding"
3. "We were Soldiers Once . . . and Young," by Joe Galloway and Lt. Gen Hal Moore (USA-Ret.)
   

(Cross-posted at South by Southwest.)

Dems ready to cave again?

By Edward Copeland

Mere months after vowing to roll back the broad eavesdropping powers that Congress had handed to Dubyaland, the Democrats are ready to cave yet again to an unpopular administration that no one even listens to any longer.

WASHINGTON, Oct. 8 — Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.

Ever fearful of being labeled "soft on terrorism," House Democrats are poised to extend the NSA's surveillance powers for several years. As if that weren't bad enough, a Senate version being bandied about seems ready to offer the White House even more, including retroactive immunity for telecoms that participated in the warrantless program.

***UPDATED***
Perhaps things are not quite as gloomy as The New York Times would have you believe. Check out some more thorough analysis from The Carpetbagger Report, Glenn Greenwald and pontificator at Daily Kos. Perhaps it's not as bad as it seemed at first -- at least for now. Of course, compromises would still lie ahead.

NYT on FISA - Part II: Administration's position

By Carol Gee

Foreign Intelligence Surveillance Act - In the Sunday (8/18/07) news, James Risen and Eric Lichtblau of the New York Times, thank goodness, are still looking at the law under FISA. In Part I of this series, I explored the genesis of the domestic spying law being amended and the sorry history of what may have been done to it by both the administration and Congress. This post explores the administration's intentions about implementing their new bonus powers.

One of the most significant new revelations of the New York Times article, concerns what the administration spokespersons asserted regarding the new law. The amended FISA law gives the director of national intelligence, Mike McConnell, and Attorney General Alberto R. Gonzales the power to set up the new procedures and approve the way surveillance is conducted. To further quote the reporters on this crucial aspect of the issue - the position of the administration about what they will do or not do under the new FISA law,

. . . Vanee Vines, a spokeswoman for the office of the director of national intelligence, said the concerns raised by Congressional officials about the wide scope of the new legislation were “speculative.” But she declined to discuss specific aspects of how the legislation would be enacted.

. . . The legislation “restores FISA to its original and appropriate focus — protecting the privacy of Americans,” said Brian Roehrkasse, Justice Department spokesman. “The act makes clear that we do not need a court order to target for foreign intelligence collection persons located outside the United States, but it also retains FISA’s fundamental requirement of court orders when the target is in the United States.”

. . . At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

. . . Asked whether the administration considered the new legislation legally binding, Ms. Vines, the national intelligence office spokeswoman, said: “We’re going to follow the law and carry it out as it’s been passed.”. . . Bush issued a so-called signing statement about the legislation when he signed it into law, but the statement did not assert his presidential authority to override the legislative limits.

The authors do not name the Democrats meeting with the White House about the amended FISA law. We would not be surprised if none of the misguided Senators or House Members who voted to approve the bill came to complain about it to the administration. They would leave that fight to those losing Democrats whose votes did not prevail that late Saturday night. It is now too late for the "yes"voters to read and understand the legislation they passed. My general understanding is that one reads and understands before casting a vote.

Yes, I am still so mad at those on THE YES LIST, (corrected) I can hardly resist continuing to complain. My planned forgiveness remains incomplete, not that it matters in the least, of course.

Cross-posted at South by Southwest.

A Sad Day for the Bill of Rights

By Carol Gee

(Image - "Bill of Rights": National Archives and Records Administration)

The Bill of Rights in the U.S. Constitution is a very old and faded document. Today it is even more faded due to what Congress did to the Bill of Rights (NYT) before going out for its August recess. The public has every right to react negatively.

We are able to ask what happened because of the *First Amendment. It guarantees free speech and a free press, as well as free assembly to ask the government for redress of grievances. We are aggrieved because of the Bush administration and Congress' most recent assault on the **Fourth Amendment to the U.S. Constitution. The Fourth Amendment guarantees our rights to have lawful and reasonable search and seizure with a court issued warrant.

Sunday will not be a day of rest for some of us in the blogosphere. We will be reacting ourselves at The Reaction (below) - and looking closely at the public's reaction - to Senate and House passage of something called the "Improving Foreign Intelligence Surveillence To Defend The Nation and Consitution Act of 2007." One of my favorite bloggers, "MeteorBlades" at DailyKos titled a post, "Enough Already with the Pathetic Excuses," that captures some of my own anger. To quote the opening,

I know what a lot of you 57 Democratic Representatives and Senators are going to be saying over the next month while you’re speaking on the home turf. You did it to protect Americans. You didn’t want to take a chance. You had to stand up to the terrorists. You really had no choice.

If anybody asks why in hell you chose to legalize what the Cheney-Bush team has been doing illegally since 2001, you’re going to tell us you did it for our own good. You amended the 29-year-old Foreign Intelligence Surveillance Act – originally passed to put some modest restrictions on agencies whose outrageous and frequently illegal behavior had been exposed by journalists and the Church Committee – to make us safe. You’re going to tell us you’ve got our backs.

You’re going to claim we can depend on you to be tough against terrorists even though you just put your foreheads to the floor at the feet of the most loathsome duo ever to sink their talons into the office of the Presidency. You’re going to tell us you couldn’t stand up to the blackmail, although that's not what you'll call it. You’re going to say Democrats can’t afford to appear weak.

More on FISA from the blogosphere - Even though I may be in the spiritual doldrums, my curiosity led me to check around. A couple of my blog favorites, Jane Hamsher at Firedoglake, and Faiz at ThinkProgress also wrote great posts in the same vein. Ironically the occasion of the YearlyKos meeting seemed to occupy Jay Rosen, Juan Cole, Josh Marshall (interviewing Steve Clemons), and Barbara of The Mahablog.

It will not be sad forever - Neither psychological angst, personal challenges, summer doldrums, cynicism, nor burn-out will deter alert bloggers from sustained committment to this issue. Stay tuned for more.

References:

• The U.S. Constitution online.
• The Bill of Rights - The First Twelve Articles of Amendment.
• *Amendment 1 - Freedom of Religion, Press, Expression. Ratified 12/15/1791.
  
  

  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.



• **Amendment 4 - Search and Seizure. Ratified 12/15/1791.
  
  

  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(Cross-posted at South by Southwest.)

Dems act afraid of the boogeypresident once again

By Edward Copeland

Sure, Congress' approval ratings are even lower than Dubya's, but don't they realize that most people no longer even listen to Dubya, just waiting for the day that our long, national nightmare is over. They do however watch Congress, who after seven months of Democratic leadership keeps disappointing voters who hoped they'd finally bring back some check and balance on this incompetent zealot in the Oval Office. I guess getting their long August recess is more important, as the Senate Dems cave and gives Dubya what he wants in terms of FISA changes, though they insist the changes "are temporary," in a 60-28 vote. It's on to the House today. As usual, helping the GOP get their victory was closeted Republican Censorin' Joe Lieberman.

Sixteen Democrats and Sen. Joseph I. Lieberman (I-Conn.) joined all 43 Republicans in supporting the measure, which is nearly identical to a proposal prepared by the Bush administration. "We're at war. The enemy wants to attack us," Lieberman said during the Senate debate. "This is not the time to strive for legislative perfection."

People who believe in the rule of law and rights of privacy say that this bill actually gives Dubyaland more snooping authority than they had under the old warrantless wiretapping program, noting that the previous requirement that at least one side of the call had to be affiliated with al-Qaida or some other terrorist group has now been dropped.

Democrats "have a Pavlovian reaction: Whenever the president says the word 'terrorism,' they roll over and play dead," said Caroline Fredrickson, Washington legislative director of the American Civil Liberties Union.
Gregory Nojeim, senior counsel at the Center for Democracy and Technology, predicted that the bill's approval would lead to the monitoring of ordinary Americans by the National Security Agency, which conducts most of the government's electronic surveillance. "If this bill becomes law, Americans who communicate with a person abroad can count on one thing: The NSA may be listening," he said.

Even the rulings against it are done in secret

By Edward Copeland

The sudden rush and handwringing seeking to revise FISA rules on warrantless wiretapping seems to have been sparked by a judge's secret ruling earlier this year declaring parts of the program illegal. Now, the cause has been made public in an article in The Washington Post.

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.
The decision was both a political and practical blow to the administration, which had long held that all of the National Security Agency's enhanced surveillance efforts since 2001 were legal. The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court, and after it finally did so in January the court ruled that the administration's legal judgment was at least partly wrong.
The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA).

Who should this leaker to the media be, presumably at risk of being punished by Dubyaland's threats to prosecute leaks it doesn't like? Why none other than House Minority Leader John Boehner, and on Fox News no less. I'm guessing neither will get in trouble.

There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto in a Tuesday interview.

Of course, Boehner's spokesman Kevin Smith is quick to deny that his boss leaked classified information after House Democratic Caucus chairman Rep. Rahm Emanuel said that "John should remember the old adage: Loose lips very much sink ships."

NSA SPYING NOW EVEN MORE ILLEGAL ???

HOUSE PASSES BILL ON NSA EAVESDROPPING
WOW A LAW THAT MAKES IT ILLEGAL TO BREAK A LAW - HELP!
THIS CLIP IS FROM AN UPCOMING PBS SPECIAL ON THE SUBJECT OF NSA SPYING

NSA reading e-mail? pbs.org/frontline
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