What's a Senate to Do?

By Keith Schmitz

With the vote today in the Senate over the FISA bill, Bush is holding the war on terror that he so cherishes as a hostage over telcom immunity. In other words, look the other way when the Bush administration sucks the life out of the 4th amendment.

If this free pass passes today this will be the triumph of telcom cash being poured into many pockets, knowing that they will be let off for a crime they may have committed, but we are not supposed to know what it is.

Every one knows that unless this measure is passed, there will be no way for this country to find out who in the Bush administration ordered possible illegal wire taps. It's like Al Capone running the courts in Chicago.

One shouldn't care which political party is perpetrating a crime, but that a crime could have been perpetrated. Isn't this what the rule of law is all about?

When a Senator raises the right hand, isn't protecting the Constitution supposed to be somewhere in the job description? Just asking.

Obama, FISA and the Politics of Puffery

Update: Contact Barack Obama.
Update: See Compromising the Constitution and August 8, 1974 v. July 9, 2008.
***Bush is using the Nixon crimes-inspired FISA to immunize the very executive abuse which FISA was crafted to prevent.***

Barack Obama has taken much heat for his qualified support for the FISA capitulation to be debated and possibly voted on in the U.S. Senate this week.

The Foreign Intelligence Surveillance Act (FISA) (1978) was one of numerous post-Watergate reforms intended to check the vast executive power, in this matter of concern the power to wiretap and spy on American citizens under the invoked umbrella of national security.

A president wants to spy on Americans and claim national security rationales (misleadingly like Nixon and Bush), then a president has to answer to the FISA court as a check on the executive power preventing the president from becoming an Orwellian tyrant, dispensing with citizens’ rights at will, FISA mandates.

Bush, like Nixon before him when there was no FISA, is attempting to codify an unconstitutional executive program, violative of (among other liberties) the Fourth Amendment’s protection against unreasonable searches and the First Amendment right to engage in free speech, chilled when “(t)he price of lawful public dissent (is) dread of subjection to an unchecked surveillance power” [Landmark Supreme Court decision striking down Nixon’s claims of unlimited power to wiretap Americans under presidential claim of “domestic security;” UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)].

But one of the rare points of light in the new FISA bill (that addresses modern technological methods of communication), it is claimed, is the mandate that a court will be in place to check illegal executive branch monitoring of citizens, and that any monitoring must take place exclusively within the FISA court-approved sphere, effectively negating the power of a Bush-Cheneyesque, out-of-control presidency.

“The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court,” said Barack Obama in a statement of his support for the bill.

These things you say we have, we already have.

That’s one of the problems of the FISA bill. As Slate and others have pointed out, FISA is already the exclusive legal authority checking executive surveillance on American citizens that are made on national security grounds, and the new FISA bill, ironically, retroactively codifies the most flagrant FISA law-breaking since its inception.

Bush, and his conspirators in the telecommunications industry, have throughout his presidency utterly disregarded FISA and broken this federal statute in presidential acts of lawlessness unrivaled since Nixon.

Bush is using the Nixon-inspired FISA to immunize that which FISA was crafted to prevent. And the Democrats believe opposition to this disgusting act is too politically risky.

As Patrick Radden Keefe explains:

The Democrats' most pathetic bit of self-deluded posturing involves the inclusion of a clause suggesting that the new law represents the "exclusive means" by which 'electronic surveillance and interception of certain communications may be conducted.' According to House Speaker Nancy Pelosi, D-Calif., this means 'the law is the exclusive authority and not the whim of the president.' But, then, FISA always said that it was the 'exclusive means.' And in 2001, pretty much on a whim, the president set it aside. …

From 2001 to 2007, the NSA engaged in a secret program that was a straightforward violation of America's wiretapping laws. Since the program was revealed, the administration has succeeded in preventing the judiciary from making a definitive declaration that the wiretapping was a crime. Suits against the government get dismissed on state-secrets grounds, because while the program may have been illegal, it was also so highly classified that its legality can never be litigated in open court. And now suits against the telecoms will by dismissed en masse as well. Meanwhile, the new law moves the goal posts, taking illegal things the administration was doing and making them legal. … Whatever Hoyer and Pelosi—and even Obama—say, this amounts to a retroactive blessing of the illegal program, and historically it means that the country will probably be deprived of any rigorous assessment of what precisely the administration did between 2001 and 2007.

The Politics of FISA

The political track for candidate Obama, who undoubtedly despises out-of-control chief executives like Bush and Nixon, is to project a nuanced presidential candidate laboring under the weight of his national security commitments, and then quietly help strike the absurd passages from the House-approved FISA bill under Senate consideration.

President Bush will ultimately veto such an amended FISA if passed, leaving the issue on the backburner as gas pushes five dollars/a gallon and middle America goes further in debt leaving FISA about as relevant and compelling a political story to struggling American families as the movie Jaws II.

The compulsion driving this maneuver, rather than just calling the House FISA bill what it is, is to prevent a harebrained national media (ever desperate to assist John McCain) from creating a campaign narrative (false though it be) of McCain and national security versus Obama and fuzzy Fourth Amendment (whatever the hell that is).

But Obama need not engage in this strategy, though he is not doing so casually. There is a long and distinguished tradition of American Constitutional thought on liberty and security that can inoculate Obama from even the most craven Republican and the most foolish of talking heads.

And Obama can, in essence, plausibly assert that anything Bush and his cronies tell you on anything is wrong. That would be the politically safe and Constitutional thing to do.

We'll see what happens this week.

For a more detailed examination on the unadulterated idiocy of the FISA bill, see Glenn Greenwald at Salon.
- via mal contends -

Feingold Reminds US to Stay Outraged

by bert

Good for Russ Feingold for continuing this week to protest against the warrantless wiretapping bill. Too bad no one is listening.

We're all tired, I know. It's summer for god's sake. And this is just one old, rotting piece on a messy pile of constitutional outrages that were built up in the guise of fighting terror.

But Feingold, along with Sen. Christopher Dodd, is still out there this week on the Senate floor and in interviews with messages that are in effect paddling upstream. They are pushing against a strong current of indifference. (UPDATE: Note, for example, the buried wire story on this that the Journal Sentinel ran Thursday morning.) This shows that both men are working from principles, and not craven political posing. You don't pose when you know no one is watching.

At issue is the bill that will exonerate phone companies for opening communications to the executive branch of government without the (heretofore) required judicial permission, and will weaken protections of our privacy against one government branch's unilateral decision to snoop.

What sticks in Feingold's craw -- besides the fact that the existing rules to act fast and give judicial oversight would work fine against terror -- is that this administration knew the wiretaps were illegal, and just did them anyway.

Bush's defenders try to attack Feingold's position by saying Feingold doesn't want the government to fight terror. I remember Jessica McBride urging Feingold to watch the movie "United 93". But obvious to anyone is that the administration's motive is not terror, it is a belief in unfettered executive branch power and in the divine right of corporations.

Here's Feingold today during an interview with Amy Goodman's Democracy Now:

But I think a censure resolution [against George Bush] that essentially lays out the same case, that for the first time since Andrew Jackson says this president has
actually violated the laws of the land and has disregarded our system of government, is a very important step. I know it won’t happen. I know it’s not going to be brought up. But I do think it would be the appropriate step . . .

Feingold recognizes that our mass fatigue and a conservative media are working against a clear view of the damage wreaked by the Bush administration. In fact, lately sensing an opportunity, right-wing dead-enders have been working stealthily to exploit this indifference -- -- to try to burnish the lame duck's outgoing image while no one is looking. For example, Mark Belling last week called Bush's war on terror a "glorious victory".

So Feingold deserves credit for pushing back a little -- for lighting a candle rather than cursing the apathy.

Paid by the oversimplification?

Dickens and Tolstoy were paid by the word. (Some day, I dream I can be, too, since there's no word limit I can't blow through.) But it's clear that's not how Jessica McBride gets paid. Here's post of hers from this week, in its entirety:

They do?

New Saint Russ press release:

“Democrats support wiretapping terrorists..."

It then, predictably, goes on to oppose Congressional measures to wiretap terrorists.

What exactly has Russ Feingold ever done to support the wiretapping of terrorists? Opposing wiretapping terrorists doesn't count.

If you read Feingold's press release, you actually see that he still fully supports FISA, the law that allows the president to wiretap terrorists, in fact protesting that Arlen's Specter's "compromise" bill guts the current statute. If he opposed wiretapping terrorists, he'd be busy trying to eliminate FISA, rather than protect it. What McBride has penned here is an oversimplification of the worst kind--one that provides a false sense of what is actually going on.

What Feingold opposes is not "Congressional measures to wiretap terrorists," but rather Congressional attempts to both 1) retroactively excuse the president's violation of the plain language of the FISA law and 2) remove the administration's activity from the oversight of either the judicial or the legislative branch.

Perhaps McBride thinks that short paragraph above (me? write a short paragraph?) is too complicated for her readers so she feels the need to simplifiy it to a version that doesn't reflect reality. But that's a pretty cynical view of her and her fan base. Perhaps that short paragraph is just too complicated for McBride herself to understand. That also seems unlikely. That's why I've come down on the side of thinking that she gets a little bonus every time she writes up a misleading oversimplification.

She must be raking it in.