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ACLU Lens: Court Rules Challenge to Warrantless Wiretapping Law Can ProceedIn a very significant development, yesterday a federal appeals court ruled that our lawsuit challenging warrantless wiretapping can proceed. The law that we’re challenging, the FISA Amendments Act (FAA) of 2008, is the most far-reaching surveillance law ever enacted by Congress. It gives the National Security Agency (NSA) virtually limitless power to spy on Americans' international phone calls and emails. It allows the NSA to collect those communications en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight. Needless to say, the law has dramatic implications for Americans' privacy rights. In the lower court, the case was dismissed on “standing” grounds. The judge ruled that our plaintiffs — a broad coalition of attorneys and human rights, labor, legal and media organizations — could not prove with certainty that they had been spied on and consequently didn’t have the right to challenge the law. A three-judge panel of the appeals court reversed that decision, and yesterday the full appeals court refused to reconsider that ruling. The government now has 90 days to decide whether or not to appeal this issue to the Supreme Court. We hope that that they will decline to file a petition and instead allow the case to go back to the lower court so that a judge can finally consider the constitutionality of the FAA. In the news:
Learn more about warrantless wiretapping: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: faa, fisa, surveillance, warrantless wiretapping
Don't Let Phone Companies Off the Hook: Demanding Accountability for Warrantless Wiretapping As we near the tenth anniversary of the terrorist attacks of 9/11, we can expect to see a number of retrospective pieces in print and broadcast offering commentary on changes to America in the decade since that shocking day. As we near the tenth anniversary of the terrorist attacks of 9/11, we can expect to see a number of retrospective pieces in print and broadcast offering commentary on changes to America in the decade since that shocking day. Some of the changes are obvious — heightened security at the airports, U.S. troops involved in two wars overseas, and physical barriers placed at governmental buildings in downtown Chicago and across the nation. Beyond these obvious changes, we have seen numerous alterations to federal laws that permit government to gain easy access to personal information about millions of Americans. The USA PATRIOT Act, for example, was passed by Congress and signed into law approximately six weeks after the terrorist attacks in New York and at the Pentagon; that law has been extended several times in some form or other. And, Congress passed a measure that granted the National Security Agency broad, new powers to monitor the telephone calls, emails and website use of Americans without prior oversight from a court. In early 2006, news reports uncovered another front in the effort to expand government’s ability to spy on Americans without evidence of any criminal activity. These reports indicated that the major phone companies, including AT&T, had cooperated with the federal government in spying on Americans without a warrant. It was revealed that the telecoms turned over to the government massive quantities of records on the telephone calls made by millions of consumers across the nation. Later we learned that included the communications not just the records. In response, more than forty lawsuits were filed across the nation challenging this practice by the telecoms — a direct violation of not only existing federal and state law, but also the privacy and associational rights protected by the constitution. In short, the phone companies failed to protect their customers’ privacy. I joined a suit brought by the American Civil Liberties Union of Illinois, along with author and oral historian Studs Terkel, Dr. Quentin Young and James Montgomery, a former Corporation Counsel for the City of Chicago. In the view of the plaintiffs in our case, the phone companies broke the law and needed to be held accountable. Alas, accountability has been difficult to achieve. In response to demands from the Bush White House, the U.S. House and Senate voted to grant retroactive immunity to the nation’s giant telecommunications companies that collaborated with the government in the spying we challenged. During the debate over the law, government officials were not subtle, acknowledging that the goal of the legislation was to provide amnesty for the telephone companies. Once the law was passed and signed into law, then Attorney General Michael Mukasey filed the required “certification” with a federal district court in San Francisco (where all the lawsuits, including ours, had been combined) saying that the lawsuits must be dismissed. The court, under the law passed by Congress, was not permitted to examine whether the spying was legal. The court only could consider the representation by the Attorney General that the activity was within the class of cases in which the Congress intended to give immunity. Based on this limited examination, the judge granted the motion and denied my fellow plaintiffs and me our day in court. This week, a federal appellate court, sitting in Seattle, will hear an appeal to the dismissal. In many ways, the result of this appeal will determine just how much things have changed since September 11, 2001. One of the central elements of the argument before the appellate court will be a question about how much authority Congress ceded to the Executive Branch in voting for immunity for the telecoms in this case. In this instance, Congress did not — as legislatures often do — change the laws we claimed were violated by the sharing of phone records and communications. Rather, the Congress simply gave the Executive Branch (through the Attorney General) the ability to pick particular cases in which to seek dismissal — with no real limitations on the reasons that might lead the Attorney General to file such a motion. In other words, the Attorney General can act with complete discretion to determine what the law means and when it should be invoked. There are no standards. This process is a direct violation of the divisions of power under the U.S. Constitution, which places the authority for making laws in the hands of Congress, not in the Executive Branch. Moreover, the Attorney General’s filing also dismissed a number of claims under state law (mainly California privacy laws) without Congress ever acting to change federal law to hold supremacy over state law. Courts have made clear over time that Congress can change laws and protect entities from lawsuits by changing federal law and policy. That is not what occurred here. Rather, Congress simply ceded to the Attorney General the right to decide who can and cannot have their day in court to challenge violations of their personal privacy. And, as noted, this decision is not bound by any real standard. Defenders of immunity have said that we need to give the giant telecoms amnesty for breaking the law, or else those telecoms will no longer cooperate with the government in spying efforts that help protect America. But the truth is that telecoms did not need a special deal. In fact, these companies have immunity from lawsuits for turning over customer records to the government if they do so in conformity with existing law. In this instance, the telephone companies knowingly violated that law. If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future? Most important, amnesty not only lets the companies off the hook without answering any questions, but it also assures that the American people will never learn about the breadth and extent of the lawless program authorized by President Bush to gather information about Americans without a warrant. We deserve the opportunity to explore the interactions between the government and the telecoms that led to the phone records of millions of innocent Americans being swept up and kept up by the government. I am hopeful the appeals court will rule to permit us our day in court. (Originally posted at the ACLU of Illinois' blog.) Learn more about spying: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Barbara Flynn Currie, Dr. Quentin Young, faa, fisa, James Montgomery, Michael Mukasey, Patriot Act, spying, Studs Terkel, telecom immunity, warrantless wiretapping
Is Retroactive Telecom Immunity Unconstitutional?When Congress enacted and the President signed into law the FISA Amendments Act of 2008, some of the nation's largest telecommunications companies were given an extraordinary gift: full-scale immunity from the pending lawsuits brought by their customers, who had alleged that their privacy and other rights were violated by the telecoms' participation in the Bush administration's illegal spying program. There are, however, several reasons for believing that this telecom immunity provision is unconstitutional, violative of several different constitutional guarantees. The first and, in my view, strongest constitutional objection to telecom immunity is that it constitutes a usurpation by the Congress and the President of the "judicial power" which the Constitution assigns to the judicial branch. Article III, Section 1, provides that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," while Section 2 specifies that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States." The lawsuits brought against the telecoms by their customers were brought pursuant to the Constitution and the laws of the United States, as those suits allege that the telecoms violated both the constitutional rights of their customers and federal law. Thus, adjudication and resolution of those lawsuits are the definitive "judicial powers" which the Constitution assigns to courts, not Congress or the President. When immunizing the telecoms, Congress was not enacting a broad, generalized policy that falls into the scope of the "legislative power" constitutionally assigned to Congress by Article I, Section 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States"). Rather, what Congress was doing was deliberately intervening into pending lawsuits in order to resolve factual and legal issues in favor of one of the parties -- the telecom-defendants. Indeed, the chief Congressional advocate of telecom immunity, Senate Intelligence Committee Chairman Jay Rockefeller, repeatedly stated that he favored telecom immunity because, in his views, the telecoms had acted "in good faith" when cooperating with the Bush administration's requests to enable illegal spying. And the formal Report of Rockefeller's Committee repeatedly emphasized, when justifying its support for immunity, its belief that telecoms acted in "good faith" -- a finding they reached by examining precisely the evidence and other documents that the court (or a jury) would have examined in order to resolve the telecom cases:
But whether telecoms acted "in good faith" was precisely one of the key factual questions that would have been adjudicated in the telecom lawsuits. The 1978 FISA law already provided that telecoms would be immunized from liability if they acted in the "good faith" belief that what they were doing was legal (see 18 U.S.C. 2520(d)). Thus, the very issue which Sen. Rockefeller and the Congress generally purported to resolve when enacting telecom immunity -- namely, whether the telecoms acted "in good faith" by cooperating with the Bush administration's spying program -- was to be resolved by the court as part of the telecom lawsuits. If anything qualifies as a "judicial power," it is the resolution of those sorts of factual disputes that exist between adverse parties in a lawsuit by examining the relevant evidence. By purporting to resolve that question in favor of the telecom defendants, and by preventing the court from doing so, the Congress usurped a definitive "judicial power" that is reserved by the Constitution for the courts. Congress has simply denied the courts their central, constitutionally assigned role. A related ground for challenging the constitutionality of retroactive telecom immunity is a straightforward "Due Process" challenge under the Fifth Amendment, which provides that no citizen shall "be deprived of life, liberty, or property, without due process of law." Telecom customers who had their private communications turned over to the Government in violation of the law have clearly been deprived of property -- the right to sue telecoms -- without a smidgen of legal process. Instead, Congress has simply intervened in the lawsuit and ruled that the defendants are right and the plaintiffs are wrong. The Electronic Frontier Foundation's Cindy Cohn, counsel to plaintiffs in the telecom cases, said: "our clients have the constitutional right to have their cases decided in a court, not by Congress." Congressional intervention in pending lawsuits for the purpose of deciding the dispute in favor of one of the parties seems clearly to be the sort of denial of property without due process of law that the Fifth Amendment was designed to prohibit. Independently, it is worth noting here that several of the claims asserted by the plaintiffs in the telecom cases are constitutional in nature -- that telecoms have enabled violations of the Fourth Amendment and other constitutional rights of their customers. It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations. For this reason, Congress lacks the authority to enact statutes to deny remedies for constitutional violations. At the very least, the telecom immunity provisions should be held inapplicable to foreclose the plaintiffs' constitutional claims. There are, as well, substantial due process problems with the extraordinary secrecy provisions in the FISA Amendments Act. Section 802(c) of the telecom amnesty section actually provides that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal. So basically, one day in the near future, we're all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we're never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won't we, the public, know that, neither will the plaintiffs' lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. It is impossible to understand how such secret Star Chamber proceedings can be reconciled with basic precepts of due process. EFF's Cohn said: "Our clients have the right to know why their cases are being dismissed and what the rationale is for the dismissal." A further potential constitutional infirmity with telecom immunity is that it constitutes a "taking" without "just compensation" in violation of the Fifth Amendment. When they commenced their lawsuits against their telecom carries, the plaintiffs possessed something of clear value: namely, the right to sue under FISA and other laws for privacy violations and illegal spying. By retroactively removing those rights, the FISA Amendments Act have, in essence, deprived those plaintiffs of something of tangible value, a government "taking" which the Fifth Amendment allows only in exchange for "just compensation." The legal rationale and precedental support for this argument was comprehensively set forth in a Findlaw article by Professor Anthony Sebok at the Benjamin N. Cardozo School of Law. Professor Sebok points out that in other instances where the Congress sought to deprive citizens of existing legal rights -- such as when Congress sought to deprive 9/11 victims of the right to sue airlines and World Trade Center owners -- Congress provided an alternative form of relief to constitute "just compensation" (in the case of the 9/11 attacks, it created the 9/11 Victims Compensation Fund in lieu of being able to sue in court). As Professor Sebok reasoned: In fact, throughout the recent history of federal responses to various liability crises, the pattern has been the same: The elimination of causes of action has always been linked to some kind of quid pro quo, whether it took the form of a guaranteed payment, such as for the 9/11 victims' families, or access to a special court, such as in the case of childhood vaccines. . . . It has been widely assumed since enactment of the FISA Amendments Act of 2008 that dismissal of the telecom lawsuits is a fait accompli. But the ACLU and EFF intend to contend that the telecom immunity provisions of the Act are unconstitutional, and there are numerous grounds that enable a persuasive case to be made. This is a battle, both legally and politically, that is far from over. Tags: fisa
T.G.I. FISCOkay so you may know that we sued the government last week (you know it never really gets old, suing the government) when President Bush signed the FISA Amendments Act into law. This was not a "compromise bill" or a "modernization" bill, which is how they tried to sell it. Instead Congress basically handed the President even more power to spy on Americans than he was using under the illegal warrantless wiretapping program. Super, right? Totally classy in addition because as Sen. Arlen Specter (R-PA) pointed out, ""This may be a historical embarrassment . . .Everyone knows we don't know what the program did." Sans a thorough investigation, Congress decided to seek out a CYA strategy and, you know, abandon that old tricky-dicky document the CONSTITUTION. Anyway, at the same time we were filing that lawsuit we also sent a motion to the Foreign Intelligence Surveillance Court. Never heard of it? That's because it's secret. Under the old FISA law, passed to keep the government from abusing its power, the FISC issued warrants for wiretaps and the like. But under the FAA, when the government is monitoring people abroad (even though they may be talking to or emailing with people in the United States) the FISA court is given only a peripheral role. Rather than specific warrants authorizing surveillance of particular people or places, the FISA court basically just approves the government's surveillance procedures. The NSA doesn't have to name the person they are spying on, or the place, or even the reason anymore. "Wait!" you say. "I thought this law was about terrorism! How come they don't have to be seeking out information on terror, they could be seeking information on . . . well anything?" you ask. We're wondering too. So it is possible that when the FISC looks at whether the government's surveillance procedures they may decide the constitutionality of the FAA. If that happens, we want to make sure that the government isn't the only one there making arguments and that it doesn't happen in total secrecy. So we sent them a little note and asked them to make any arguments like that public and to let us argue why the law is unconstitutional. Typically, only the government gets to communicate with the secret FISC and the government is the only party that has ever argued before in front of them. So, in addition to being constitutionally necessary to keep open the judicial process, it'd be really neat if we got to go in front of them as well. A this-has-never-happened-before and where-are-we-when-secret-courts-are-more-open-than-the-law-making-process-in-this-country kind of a way. Today the FISC court gave us a little nugget of hope. They told the government to reply to our request by July 29th. Then we'll reply to their reply. And then the court will issue a decision. And maybe (this is still just a big, hopeful, maybe) the court will let us argue why this law is wrong, wrong, wrong and, better yet, it may end up being a secret court (rather than Congress) that draws this unconstitutional spying out into the light and issues a public decision. Tags: fisa
President Bush, in the Rose Garden, with the Constitution and Some White-Out, at 1:15
President Bush will sign into law the FISA Amendments Act of 2008, at 1:15 this afternoon in the Rose Garden. Immediately after he signs, we're suing. Our argument is simple: This bill is a clear violation of the Fourth Amendment. You know, the one that says: 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.You can check out our roll call to see how your Senator voted. (Chuck and Hillary pulled through!) Our lawsuit will ask a federal court to stop the government from enforcing this new, clearly unconstitutional wiretapping law, which will give the Bush administration unfettered power to spy on innocent Americans without warrants or judicial oversight. It's clear that the Bush administration doesn't believe in checks and balances and judicial review, but the ACLU has faith that the courts still have a role in our government. We're running a full-page ad in a national newspaper to let the White House know exactly what we think of its wholesale evisceration of the Fourth Amendment. Join us, if you please, by signing this petition to add your name to the ad. On January 20, 2001, George W. Bush swore to "preserve, protect and defend the Constitution of the United States." Taking some white-out to the Fourth Amendment is no good Americans' idea of preserving, protecting, and defending. Can you hear us now, President Bush? CORRECTION: A previous version of this post stated that George H.W. Bush was inaugurated in 2001. That was incorrect. It was George W. Bush. (Thanks Bryan!) Tags: fisa
FISA Vote, or How I Lost Complete Faith in Our Legislative BranchToday's the day, folks. Start dialing your international calls now while you still have some assurance of privacy. Reid came on the floor and set up the rules. Debate will continue then votes on the amendments — Dodd, then Specter, then Bingaman. Senator McConnell: "Blah blah blah compromise blah blah blah thanks to Bond's leadership blah blah blah…" Then Bond spoke, saying that the Senate Select Committee on Intelligence was created as and should be the only vehicle for oversight. May I say, you've not done a great job, sir. Even Rockefeller, whose capitulation on immunity is insane, thought the program was out of line and went so far as to keep a sealed letter in his desk disavowing it. And look where we are now. Bond also called out "far left editorial writers." Wink, wink NYT! Hatch followed Bond and attempted to rebut points made on the floor yesterday while also tearing down those who have suits against the phone companies. He argued that no one in the government has the time or inclination to monitor random domestic phone calls. Well, whether they have the time or inclination they're about to get the ability to do so, so thanks. Hatch also repeated Bond's strange and likely baseless argument that, if the lawsuits go forward, phone companies will suffer consequences including possible physical threat to their employees. Can someone explain that to me? Who is circulating that talking point? What the hell is going on? Feingold on Hatch's remarks that the majority of the Senate being in the dark on the specifics of the program: "Wow." He smacked down Hatch's condescending remark that it's the "black helicopter crowd" that is concerned with this saying, "It could not be clearer that this program broke the law and this president broke the law." Feingold's walked us through the history of this issue, starting before the New York Times broke the story. (Here's a little history lesson from the ACLU.) He brought up that old Authorization to Use Military Force (AUMF) story. You know, the one where the administration claimed Congress gave it the go ahead to wiretap without warrants when it passed the AUMF? That should have been another red flag that this administration is crazy-go-nuts for ridiculous legal interpretations. (BTW, here's an old and fantastic story on TPM that I just found — check the date on that baby.) Then the administration was all, "No, no, no. The president's got Article II authority." Wasn't it clear when it was scrambling for prior legal cover that the administration knew it was caught with its hand in the cookie jar? Feingold also said that, as a member of the Intel committee, he's seen all the documents and has been read into the program and, "members of this body will regret we passed this legislation." If only that would resonate… Leahy is Leahy and I love him. Oh my goodness, I love him. Specter followed Leahy and said passing this law without knowing the full details of the program is like buying a pig in a poke. It's been a while since I've heard that and he's right. It can't be said enough that senators are voting on something that the majority of them have little or no context for. Once this bill passes and these amendments are voted down, it's done. DONE. Everything you always wanted to know about the president's domestic spying program will remain a mystery. Senator Sanders just took to the floor and spoke for less than a minute but said everything that needed to be said. We're all for finding terrorists and preventing attacks but we must remain within the bounds of the Constitution. Sanders out. Since votes came up quicker than I can type, I'll quickly summarize:
Final passage will be around 2 or 2:15. Stay tuned and don't do anything foolish in the meantime. We'll get through this. Update: After the amendments were effectively killed – along with any possible hope of court review of the president’s illegal and unconstitutional domestic spying program (can’t say that enough) – the votes for final passage were counted. The votes were cast and so was the die. Final count: 69 to 28. I can only say it’s been emotional. This isn’t the last you’ll be hearing from the ACLU on this subject — in fact, far from it. Keep an eye on this space for our continued and tireless work protecting the Fourth Amendment (and all the other ones, too, come to think of it). Tags: fisa
FISA Debate: The Senate Has Nearly Sucked Out My Soul.It’s been a long day so here’s a quick highlight reel from the last few hours:
Senator Reid came on the floor. Announcement: The man who scheduled the vote will be voting against the bill…so logic and democracy are alive and well in the halls of the Senate. Reid said they may be able to revisit some of these issues during Patriot Act reauthorization next year. (Hot tip – Patriot will be a pretty interesting fight in and of itself and the ACLU plans to be on the front lines.) Reid also believes Title 2, immunity to you and me, is “way out of line.” I just wish he had fought a little harder against it. It’s not the will of the people, it’s the power of the purse that’s allowed this provision to get this far and that, my friend, goes against the very ideals this country was founded on. I know it’s true because I saw the HBO series John Adams last week. Dodd came next. A tireless warrior on immunity. I tip my hat. He really encapsulated this fight well. He said he believes that the choice between liberty and security is a false choice. We at the ACLU should feel a kinship with Senator Dodd because, even as we stare down a likely and depressing defeat, we don’t for a second think about not going down swinging. No matter what happens tomorrow, we’ll keep fighting this and other constitutional battles without fatigue until, well, forever. Tags: fisa
FISA Debate — Break's Over.Debate begins again. Senator Bond is on the floor once again saying plainly and, frankly a little smugly, that the FISA Amendments Act is the Senate bill with "cosmetic" fixes for the Democrats. Boasting is unattractive, Senator Bond. (BTW, why can no one in Congress pronounce "exigent" properly? Does that make you feel confident about their ability to discuss and legislate on these intricate matters? Me, neither.) Bizarrely, Bond keeps railing about phone company employees being in physical danger if these lawsuits go forward. He goes so far to say that the phone companies are akin to our fighting men and women and we should not leave them unprotected as we would not leave our troops unprotected. Ladies and gentlemen, we have officially fallen down the rabbit hole. Bond also argued that these lawsuits would destroy the phone companies' reputation: Do the phone companies have a good reputation? I was completely unaware. Specter came on to the floor to battle Bond Specter said the Supreme Court "ducked" the issue. Yes they did, sir. Yes they did. (Notice not a lot of senators are talking about Title 1 — the actual wiretapping provisions. Today is all about immunity — clearly because that's all the amendments address. But don't for one second forget what is at stake for the Fourth Amendment in this debate.) Senator Bingaman introduced his amendment which would stay the cases against the telecoms until after the inspector general reports (mandated in the bill) are complete. Kind of makes sense. Unfortunately, like all things aimed at making this bill easy to swallow, there's a saying about a snowball and hell that I'm reminded of. Rockefeller claimed that Bingaman's amendment would "undo the very carefully constructed compromise" that was reached between the House and the Senate. I still don't understand how anyone can call this immunity provision a "compromise" with a straight face. If I could take a moment to pledge my undying love for The New York Times editorial board on this issue, that would be great. The Times offers a fantastic smackdown of what Rockefeller deems a "compromise." Enjoy. Rockefeller claimed that Bingaman's amendment satisfies the "particular need of a particular senator." Of all the ridiculous and condescending things to say. Thank god. Leahy came onto the floor to rail against the bill. He spoke eloquently spoke about Americans' right to justice and to take their concerns to the court. Leahy on wiping out the courts' role with the immunity provision: "Not just a heavy thumb on the scale of justice but a whole hand and arm." (!!!!!!!!!!!!!) God, I wish I had written that. Very short break in debate. Specter's amendment is up next. More (sigh) to come… Tags: fisa
FISA Debate. Day 4,392. Ever see Groundhog Day?Yeah, me too. Ever lived it? The Senate is taking up the FISA Amendments Act once again. Today they'll be debating it on the floor and then they'll vote tomorrow morning. Listen. It doesn't look good. Here's a quick rundown of the first bit of debate. Senator Cardin spoke first then Senator Feingold came to the floor giving Senator Dodd props on his immunity work. He called the immunity provision a "rigged process" thereby cementing his place in my heart. Feingold also notes that at least 70 senators have not seen the documents outlining the legal underpinnings of the program that the Intelligence and Judiciary committees have had access to. The senator from Wisconsin goes on to makes several sound and reasonable points including the fact that current law already grants immunity to phone companies that cooperate with the government. All they need is a court order or a certification from AG that it meets statutory requirements. Little known fact: FISA instructs phone companies to reject anything less. So why didn't they? Senator Specter came to the floor and interrupted to discuss Judge Vaughn Walker's recent decision in the Al Haramain case and its effect on the debate. For a quick wrap up, check out EFF's site. (Fun Fact! Judge Vaughn Walker, along with having a pretty sweet name, is also the judge that is sitting before all of these infamous telecom cases. He may have some free time open up if the Senate goes through with this. The gut-wrenching part is the Al Haramain decision gives the indication that Judge Walker may believe the president's domestic spying program to be as constitutionally sturdy as a two-legged stool. With a vote on immunity less than a day away, the glimmer of court review hope is fading fast.) Oh, hi Senator Rockefeller. What's that? You oppose Senator Dodd's amendment? Would it also be a fair assumption that the Pope is, indeed, Catholic? (Side note — Allow me to explain why the exclusivity provision that Rockefeller spoke about is backwards. If you rewrite FISA to be toothless, with superficial court review and flimsy standards, and then claim it is the exclusive means of wiretapping you pretty much save any president — present or future — from the temptation to circumvent it. So, nicely done fellas.) Specter interrupted again to challenge Rockefeller with Feingold's point that they will be granting immunity for a program many in the Senate do not understand. Rockefeller's rather, no, incredibly weak response is that those senators who were read into the program at the beginning weren't even allowed to talk about it so the mere fact that the Intelligence and Judiciary committees have had access to those documents is a huge step forward. Personally, that sounds like what my mother would call "horse pucky." Bear in mind, sir, you're voting on a bill that would essentially – and forever – erase any hope of anyone outside those few senators having anything but a primitive understanding of one of the largest executive power grabs of our time. The fact that ¾ of your colleagues haven't had the opportunity to peruse those documents is a big deal, got it? Especially when you consider how many of them (Feingold, Wyden, Whitehouse, etc.) have seen the documents and still think the administration's rationale is bunk. Speaking of bunk, did you see that Attorney General Mukasey and the Director of National Intelligence Mike McConnell sent a letter to Senate Majority Leader Harry Reid yesterday once again letting him know that they would advise the president to veto the FISA Amendments Act of 2008 if it included the Bingaman amendment or anything else stripping blanket immunity? Ummmmmmmmm. Why would you veto a bill you claim is so painfully vital for our nation's intelligence community? What kind of logic is that? Maybe because you know if the cases move forward the details of your warrantless wiretapping program will be revealed? Yeah, that's what I thought. Also, please stop insulting our intelligence by claiming immunity is about national security. It's about covering your, well, you know. Debate resumes again around 2:15. More to come… CORRECTION: A previous version of this post gave the wrong year of the FISA Amendments Act. The correct year is 2008, not 2007. Tags: fisa
Activists vs. Career Politicians?
The Washington Post has a look at the strange dynamic dividing many members of the conservative base in D.C. from their traditional allies over the illegal NSA spying. The article specifically mentions the libertarian Cato Institute, but the same dynamic is visible with grassroots leaders and activists like Bob Barr or David Keene's American Conservative Union. It's all a question of whether the GOP is really the 'leave us alone' party, or is actually the party of Really Big (Brother?) Government.
The attorney general faced increasingly skeptical questioning Monday, with Republican Senators Arlen Specter and Lindsay Graham directly engaging on the bogus claim that the authorization of force resolution after 9/11 somehow implicitly amended the express wording of FISA. Read the Post's coverage here. Even Senator Sam Brownback, conservative Republican from Kansas, questioned the illegal spying, given its open-endedness and vague boundaries of the 'war on terrorism': "It strikes me that we're going to be in this war on terrorism possibly for decades; maybe not, but this could be the Cold War of our generation," Brownback said. "To have another set of eyes also looking at this surveillance technique is an important thing in maintaining the public's support for this." Some in Congress are reportedly considering a constitutional amendment to delineate the president's authority when it implicates domestic policies. Adam Liptak at The Times laid out the legal arguments, though he failed to note at the outset that the use of force resolution says absolutely nothing about domestic electronic surveillance without a warrant, while the FISA law explicitly bars it. Tags: fisa, national security project, rtpa
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