HAPPY 10th ANNIVERSARY!

This blog is TEN YEARS OLD TODAY!


Happy Birthday, 2PJ!
The OPJ started this blog on September 6, 2004.  Though to be honest my participation didn't begin until 3 days later.  My first blog post here was on the documents at the AWOL project supporting the assertion that George W. Bush failed to complete his National Guard responsibilities.
At that point that was about the biggest blotch on his otherwise blotchy reputation.  This is before the impeach worthy warrant wiretap story hit and before the waterboarding war crimes story hit.  Up until that point all Dubya had going for him was deserting the National Guard and yet still being able to snag an Honorable Discharge.
Ah, good times.
That being said, I'd like to wish Maria Lupinacci, the OPJ, a happy blogger birthday!

Suck It

FISA Vote on CLOTURE:
Obama: Yay
Clinton: Nay
McCain: No show/no vote

FISA FINAL BILL VOTE:
Obama: Yay
Clinton: Nay
McCain: No show/no vote

Sen. Hillary Clinton's Statement:

STATEMENT OF SENATOR HILLARY RODHAM CLINTON ON THE FISA AMENDMENTS ACT OF 2008

July 9, 2008

One of the great challenges before us as a nation is remaining steadfast in our fight against terrorism while preserving our commitment to the rule of law and individual liberty. As a senator from New York on September 11, I understand the importance of taking any and all necessary steps to protect our nation from those who would do us harm. I believe strongly that we must modernize our surveillance laws in order to provide intelligence professionals the tools needed to fight terrorism and make our country more secure. However, any surveillance program must contain safeguards to protect the rights of Americans against abuse, and to preserve clear lines of oversight and accountability over this administration. I applaud the efforts of my colleagues who negotiated this legislation, and I respect my colleagues who reached a different conclusion on today's vote. I do so because this is a difficult issue. Nonetheless, I could not vote for the legislation in its current form.

The legislation would overhaul the law that governs the administration's surveillance activities. Some of the legislation's provisions place guidelines and restrictions on the operational details of the surveillance activities, others increase judicial and legislative oversight of those activities, and still others relate to immunity for telecommunications companies that participated in the administration's surveillance activities.

While this legislation does strengthen oversight of the administration's surveillance activities over previous drafts, in many respects, the oversight in the bill continues to come up short. For instance, while the bill nominally calls for increased oversight by the FISA Court, its ability to serve as a meaningful check on the President's power is debatable. The clearest example of this is the limited power given to the FISA Court to review the government's targeting and minimization procedures.

But the legislation has other significant shortcomings. The legislation also makes no meaningful change to the immunity provisions. There is little disagreement that the legislation effectively grants retroactive immunity to the telecommunications companies. In my judgment, immunity under these circumstances has the practical effect of shutting down a critical avenue for holding the administration accountable for its conduct. It is precisely why I have supported efforts in the Senate to strip the bill of these provisions, both today and during previous debates on this subject. Unfortunately, these efforts have been unsuccessful.

What is more, even as we considered this legislation, the administration refused to allow the overwhelming majority of Senators to examine the warrantless wiretapping program. This made it exceedingly difficult for those Senators who are not on the Intelligence and Judiciary Committees to assess the need for the operational details of the legislation, and whether greater protections are necessary. The same can be said for an assessment of the telecom immunity provisions. On an issue of such tremendous importance to our citizens - and in particular to New Yorkers - all Senators should have been entitled to receive briefings that would have enabled them to make an informed decision about the merits of this legislation. I cannot support this legislation when we know neither the nature of the surveillance activities authorized nor the role played by telecommunications companies granted immunity.

Congress must vigorously check and balance the president even in the face of dangerous enemies and at a time of war. That is what sets us apart. And that is what is vital to ensuring that any tool designed to protect us is used - and used within the law - for that purpose and that purpose alone. I believe my responsibility requires that I vote against this compromise, and I will continue to pursue reforms that will improve our ability to collect intelligence in our efforts to combat terror and to oversee that authority in Congress.

I'm still voting for Obama, but for all the shit I took on this blog during the primaries, to quote Kathy Griffin: Suck it!

Oh yeah, Bob Casey fucking voted Yay on both too. Gee, so glad PA finally got a Dem back in the Senate!

You can see all the votes here.
.

FISA

From Chris Dodd:

This is it.

Today the Senate will be debating FISA and retroactive immunity.

By tomorrow, it's likely that voting will be done.

And what we do together over the next 24 hours will determine what the legislation looks like.

I've offered an amendment to strip retroactive immunity from the FISA legislation.

On Monday you joined thousands of Americans online by calling your Senators (with the help of our friends at FireDogLake) and asking them to vote "NO" on any bill containing retroactive immunity.

There's still time for more calls to be made.

http://tools.advomatic.com/7/fisa

I promise you that your voices are being heard in the halls of the Senate.

I promise you that I will continue to fight alongside you until the last vote is counted.

Help me now to ensure that my next email to you will be a celebration of our commitment to the rule of law.

.

NOT. BUYING. IT.

I wanted to blog on this earlier today but ran out of time.

I have to say that I'm not buying the premise by John Dean by way of Keith Olbermann that Bush would not issue a blanket pardon for the telecoms/Gov officials for illegally spying on the American public because it would be an admission of criminal guilt.

Dean is basing this on Nixon's decision not to issue last minute pardons for Watergate before he was drummed out of office.

But what Dean (and KO) are missing is that Nixon knew the difference between right and wrong, hence the cover-up. He knew he and his administration had broken the law but he tried to hide it and was loath to admit what all knew: that he was a crook.

Bush, on the other hand, believes whatever he does is right.

He already pardoned Libby after claiming he would fire anyone involved in outing Plame. The man routinely attaches signing statements to laws so he can break 'em. His own Daddy pardoned the whole Iran-Contra crew for chrissakes.

Bush would have absolutely no problem giving a blanket pardon to any and all involved because he would not view it as an admission of guilt. Instead, he would see it as protecting the righteous.
.

In Case You Missed It...

The text can be found here.

Good Luck Today

I wonder if we'll survive till dinner time.

For those of you who don't know, this will be the first weekday our great nation will be left unprotected by the now defunct "Protect America Act." Now, according to the great leader, "our country is in more danger of an attack" because the cowards in the House of Representatives didn't roll over and give him what he wanted. More from the AP:

"American citizens must understand, clearly understand that there's still a threat on the homeland. There's still an enemy which would like to do us harm," Bush said. "We've got to give our professionals the tools they need, to be able to figure out what the enemy is up to so we can stop it."

"By blocking this piece of legislation, our country is more in danger of an attack," he said.

Too bad Ronald Reagan's fav-rit newspaper, the Washington Times had this to say recently:

Many intelligence scholars and analysts outside the government say that today's expiration of certain temporary domestic wiretapping laws will have little effect on national security, despite warnings to the contrary by the White House and Capitol Hill Republican leaders.

With the Protect America Act expiring this weekend, domestic wiretapping rules will revert to the 30-year-old Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain a warrant from a special court to conduct foreign intelligence surveillance in the United States.

The original FISA law, these experts say, provides the necessary tools for the intelligence community to eavesdrop on suspected terrorists.

Indeed, this stuff was supposed to have been resolved a while back. Dubya even said so on October 27, 2001:

The bill I signed yesterday gives intelligence and law enforcement officials additional tools they need to hunt and capture and punish terrorists. Our enemies operate by highly sophisticated methods and technologies, using the latest means of communication and the new weapon of bioterrorism.

When earlier laws were written, some of these methods did not even exist. The new law recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations -- and also to detect them before they strike.
Since 11th of September, the men and women of our intelligence and law enforcement agencies have been relentless in their work. In return for their exceptional service, these public servants deserve our full support, and every means of help that we can provide. Intelligence operations and criminal investigations have often had to operate on separate tracks. The new law will make it easier for all agencies to share vital information about terrorist activity.

Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

In recent years, some investigations have been hindered by limits on the reach of federal search warrants. Officials had to get a new warrant for each new district and investigation covered, even when involving the same suspect. As of now, warrants are valid across districts and across state lines.

And what did he sign on October 26 of that year? Read on, MacDuff:

Six and a half weeks after the worst acts of terrorism ever committed on U.S. soil, President Bush signed into law the wide-reaching "USA Patriot Act," which authorizes broad new powers for law enforcement agencies that Congress rejected in less turbulent times.

That's right. We're left unprotected in these troubled times by the USA Patriot Act. Not to mention the FISA court and the rest of the intelligence community.

That's what dubya and his many apologists want us to believe.

How stupid do they think we are?

Yesterday In The House

By voice vote, The House of Representatives voted to extend the Protect America Act of 2007 by 15 days.

Here's how they did it:

Section 6(c) of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 557; 50 U.S.C. 1803 note) is amended by striking `180 days' and inserting `195 days'.

Simple - almost sublime, really.

The problem, though, is over in the Senate. From The Politico:

With a partisan stalemate in the Senate holding up any revision to the Foreign Intelligence Surveillance Act, the House today adopted a 15-day extension of the Protect America Act, legislation last August that expanded the surveillance powers of the Bush administration.

Senate Democrats are unable to agree among themselves and with their GOP counterparts on proposed FISA amendments, specificially a Intelligence Committee proposal to grant retroactive legal immunity to telecommunications companies that have participated in President Bush's warrantess surveillance program. A dozen Senate Democrats back the immunity provision, including Intelligence Committee Chairman Jay Rockefeller (D-W.Va.), but other leading Democrats, including Majority Leader Harry Reid (D-Nev.), are opposed to the effort.

With the Protect America Act expiring on Feb. 1, the House has now acted to extend that deadline for another two weeks in order to allow the Senate to reach an agreement, although there has been no movement on the issue as of press time. The House has already passed FISA-related legislation that does not include the telecom immunity language, and despite pressure from Bush to include it in any FISA bill, Speaker Nancy Pelosi (D-Calif.) is urging the Senate to do the same.

"Congress must update the Foreign Surveillance Intelligence Act by passing a bill that protects both our national security and our civil liberties," Pelosi said in a statment released by her office. "The House has already passed such a bill, the RESTORE Act, which provides flexible surveillance tools for the intelligence community while protecting the constitutional rights of Americans, and I hope the Senate will now follow suit."

The part that I don't get is about the telecom immunity. If the surveillance was warrantless, that makes it, in one way or another, illegal, right? And if it weren't illegal then there'd be no need to push for immunity, right?

So what part of "illegal" don't they understand? I'm just asking, Splinky, I'm just asking.

In any event, the House already has, as Speaker Pelosi is quoted above as saying, The Restore Act of 2007. ThinkProgress has a summary.

So no matter what happens in the Senate, the bill would still have to be reconciled with the House bill, a bill that does NOT have any provisions for telecom immunity.

Waiting to see what happens.

Your mission for today: Three Days to Win on FISA!

From firedoglake:

We've got three days to make sure he [Reid] beats Mitch McConnell in an important showdown on FISA on Monday.

McConnell has called for a cloture vote on the SSCI Bill (the one that gives the telecoms--and therefore Dick Cheney--immunity). The vote is scheduled for 4:30 PM on Monday, just hours before the State of the Union. If the Republicans win the cloture vote, then the SSCI bill will almost certainly become law--and you will have fewer protections against improper government surveillance.

Earlier today, 12 Democrats voted with the Republicans to refuse to replace the SSCI bill with the SJC bill (that means they rejected the bill that doesn't give telecoms--and therefore Dick Cheney--immunity). We need to prevent the Republicans from getting the 60 votes they need to impose cloture and therefore to ensure passage of the SSCI bill. That means we need to get at least three people who voted against the SJC bill today to vote against cloture on Monday (neither McCain nor Lindsey Graham voted today, but we should assume both will vote for cloture, which would give the Republicans 62 votes).

Call these Senators and tell them to vote against cloture and for amendments to the SSCI bill on Monday. The list includes all the Democrats who voted against the SJC bill, except for Jello Jay Rockefeller, since he is co-sponsoring the SSCI bill, plus Arlen "Scottish Haggis" Specter, who also had an amendment shot down today.

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852
Specter (202) 224-4254

In addition, it would sure help if Senators Clinton and Obama came back to DC and supported the Democrats on this. They need to show leadership on this issue to assure those who face re-election in November (Landrieu and Johnson) that this vote will win supporters.

Talking points provided here.

Here are toll free #s to reach them:

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

Just ask the operators for the Senators by name and they'll connect you.
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FISA Bill Granting Telecoms Retroactive Immunity Pulled! Thank You Chris Dodd!

From The Huffington Post:

Dodd's Filibuster Threat Stalls Wiretap Bill

Senator Chris Dodd won a temporary victory today after his threats of a filibuster forced Democratic leadership to push back consideration of a measure that would grant immunity to telecom companies that were complicit in warrantless surveillance.

The measure was part of a greater bill to reorganize the Foreign Intelligence Surveillance Act. Earlier on Monday, the Senate, agreed to address a bill that would have overhauled FISA, authorized the monitoring of people outside the United States, given secret courts the power to approve aspects of surveillance, and granted telecom companies retroactive immunity for past cooperation.

But the threat of Dodd's filibuster, aimed primarily at the latter measure, persuaded Senate Majority Leader Harry Reid, D-NV, to table the act until January. A compromise on the immunity will ostensibly be worked out in the interim period.

[snip]

While he never technically conducted a filibuster, according to aides, Dodd left the floor only once, to address a press gathering. He did, on occasion cede time to his Democratic colleagues. But even then, they say, he remained engaged in the debate.

"Everyone who spoke on the floor said they were grateful for Dodd taking a stand," said a staffer to the Senator who asked not to be named. "They said if it weren't for him they wouldn't be having this much-needed debate."

Dodd was the one Senator currently running for the White House who left the campaign trail to debate the Protect America Act, an absence he hinted at while on the Senate floor.

Chris Dodd on Bush's threat of a veto:


From Sen. Chris Dodd’s first speech on FISA today:

For the last six years, our largest telecommunications companies have been spying on their own American customers.

Secretly and without a warrant, they delivered to the federal government the private, domestic communications records of millions of Americans—records this administration has compiled into a database of enormous scale and scope.

That decision betrayed millions of customers' trust. It was unwarranted—literally.

What the telecoms did that Bush wants to cover-up by giving them blanket immunity:

What's happening in Room 641A of 611 Folsom Street in San Francisco remains one of the most closely-held secrets in the U.S. government. According to a former AT&T employee who assisted two technicians cleared to work in the telecommunications complex on Folsom Street, 641A served as a vacuum cleaner for phone calls and e-mails of terrorism suspects, routing them to the National Security Agency.

The claims made by the ex-employee, Mark Klein, are the basis for a class-action lawsuit against AT&T and affiliated telecoms for illegally harvesting information from U.S. citizens.

[snip]

Klein provided a detailed list of 16 communications networks and exchanges targeted in San Francisco, including MAE-West, a Verizon-owned Internet hub that is among the largest in the country. Klein also said "splitter cabinets" similar to the one on Folsom Street were installed in Seattle, San Jose, Los Angeles and San Diego.

[J. Scott] Marcus, the former FCC adviser, said in a legal declaration recently
unsealed in the case that the operation described by Klein "is neither modest nor limited" and was far more extensive than needed if it was focused only on international communications or on tasks other than surveillance.

"I conclude that AT&T has constructed an extensive -- and expensive -- collection
of infrastructure that collectively has all the capability necessary to conduct large-scale covert gathering of [Internet protocol]-based communications information, not only for communications to overseas locations, but for purely domestic communications as well," said Marcus, a veteran computer network executive who worked at GTE, Genuity and other companies before joining the FCC.

If you can, you might want to throw Dodd some $$$ --- he needs to stay in this race:!

http://chrisdodd.com


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RESTORE ACT Passed In The House

The House passed H.R. 3773 yesterday by a vote of 227-189.

The locals voted along party lines: Altmire and Doyle voted for it, Tim Murphy voted against.

The AP has the story:

The House voted Thursday night to strengthen court oversight of the government's surveillance of terrorist suspects but stopped short of providing legal immunity to telecommunication companies that helped eavesdrop on Americans.

The Democratic bill, approved 227-189, was a rebuke to President Bush, who has promised to veto any legislation that does not shield telecom companies from civil lawsuits. About 40 civil suits have been filed alleging the companies broke wiretapping and privacy lawsuits for monitoring phone calls and e-mails without permission of a secret court created 30 years ago for that purpose.

And:

The House bill would allow unfettered telephone and e-mail surveillance of foreign intelligence targets but would require special authorization if the foreign targets are likely to be in contact with people inside the United States — a provision designed to safeguard Americans' privacy.

And:

The new bill tightens rules on the sharing of identifying information gleaned from electronic surveillance that involves Americans. It provides protections against "reverse targeting" _that is, using unfettered foreign surveillance to secretly monitor Americans. It increases the size of the secret court that oversees intelligence. It also prohibits future presidents from conducting electronic surveillance outside the procedures established by the 30-year-old Foreign Intelligence Surveillance Act.

This so-called exclusivity provision would undermine Bush's claim that Congress' approval of the use of military force after the terrorist attacks of Sept. 11, 2001, was all the approval he needed to bypass FISA and eavesdrop inside the United States without court approval.

Of course the Republicans, looking to kill a bill they can't defeat, introduced a "Motion to Recommit With Instructions" minutes after the bill was introduced for passage.

Remember the "Motion to Recommit"? The Washington Post has a description here.

The motion to recommit allows the minority a chance to amend a bill on the floor or send it back to committee, effectively killing it. In a legislative body in which the party in power controls nearly everything, it is one of the few tools the minority has to effect change.

And the Republican obstructionists are using the tool far more sneakily than their predecessors:

In the 12 years of Republican control that ended in January, Democrats passed 11 motions to recommit. Republicans have racked up the same number in just five months of this Congress.

Democrats say any comparison is unfair because when Republicans controlled Congress, they directed their members to vote against all Democratic motions to recommit.

Now in the majority and mindful of staying there, Democrats have given no such instruction to their members, allowing them to break with the party if they choose. Many freshmen Democrats from GOP-leaning districts find themselves voting with Republicans as a matter of survival -- a reality Republicans have seized upon.

In any event, the Motion to Recommit was denied by a vote of 194-222. We find the same voting pattern among the locals that we found with the Act itself. Altmire and Doyle voted against the Motion, Tim Murphy voted for it.

Keep in mind that this is just one Act in one House of Congress. Something that's led atrios to point out that:

Current Senate Bill has no retroactive immunity. Just need for it to survive amendments, then get a decent bill out of conference, then Bush's inevitable veto, and then Democrats not caving in to Mr 24%.

We'll keep watching.

No One Hearts Dubya or Congress

From Reuters:

Deepening unhappiness with President George W. Bush and the U.S. Congress soured the mood of Americans and sent Bush's approval rating to another record low this month, according to a Reuters/Zogby poll released on Wednesday.

And

Bush's job approval rating fell to 24 percent from last month's record low for a Zogby poll of 29 percent. A paltry 11 percent gave Congress a positive grade, tying last month's record low.

Now we all know why dubya's numbers are in the toilet (his illegal war, the un-American domestic surveillance, and so on), but Congress? Perhaps this is the reason. Yesterday, the FISA bill passed last August (and rushed through Congress with more lies of terrorist threats) was to be voted on again. Congressman Jason Altmire was on Lynn Cullen's radio show to talk about the vote.

The vote never happened.

The GOP effectively threw a wrench into the works late last night. From The Politico:

Democratic leaders in the House were forced to suspend consideration of legislation updating the laws for warrantless wiretapping Wednesday after Republicans threatened to offer a procedural blockade.

Aides to Majority Leader Steny H. Hoyer (D-Md.) notified Republicans Wednesday evening that the bill, which had been scheduled for a vote that afternoon, would not come to the floor after Republicans advertised their intent to offer a motion that would essentially kill it.

The motion was a simple declaration that nothing in the bill would prevent intelligence officials from conducting surveillance on Osama bin Laden, al Qaeda or "any other terrorist organization" from attacking the United States or its citizens.

The problem is that Republicans wrote the motion in such a way that it would kill the overarching bill if Democrats helped them approve it.

And since most members of Congress would rather not vote for something that could be construed on the campaign trail as a vote to defend bin Laden, al Qaeda or any other terrorist organization, Democratic leaders could not bring the overarching bill to the floor.

TPMElection Central has some more details. Eric Cantor, GOP House member from the New York, posted this on his website:

Today, we will be offering an amendment to the legislation to clarify that nothing in the bill "shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization…from attacking the United States or any United States person."

The only problem is that the FISA bill already had such provisions. Rep Jerry Nadler (D-NY):

It also includes emergency provisions, including the ability to get a warrant after the fact, to ensure that the government will never have to stop listening to a suspected terrorist plotting an attack.

As Greg Sargent writes:

...it would appear to make it very obvious that Cantor's amendment was simply about scuttling the bill and nothing else.

Even the AP said that:

The measure would have allowed unfettered telephone and e-mail surveillance of foreign intelligence targets but would require special authorization if the foreign targets were likely to be in contact with people inside the United States, a provision designed to safeguard Americans' privacy.

The Republicans scuttled a bill that would protect our privacy. But when have they ever believed in the right to privacy?

All this while polls show that voters oppose warrantless wiretaps. Somewhere around 60% of them.

The people are against the war, they voted in a Democratic Congress to stop it. It can't or won't. The people are against warrantless wiretapping, the Democrats in Congress can't stop the minority party in the House from scuttling the bill.

Is there any wonder why the numbers for Congress are so frickin low?

You need to call these US Senators today on FISA

Christy over at Firedoglake has a list of Senators who need to be called NOW to tell them they we do not accept the following passage in the draft Senate version of the FISA bill (courtesy of the ACLU):

…the Senate bill (Committee draft) does contain immunity/amnesty for the telecom companies…Including retroactive immunity for anything they’ve done wrong in cooperating in illegal domestic spying for the past six years.

Senators to call:

*Sen. Jay Rockefeller (D-WV), Chairman — (202) 224-6472
*Sen. Dianne Feinstein (D-CA) — (202) 224-3841
*Sen. John Warner (R-VA) — (202) 224-2023
*Sen. Ron Wyden (D-OR) — (202) 224-5244
*Sen. Chuck Hagel (R-NE) — (202) 224-4224
*Sen. Evan Bayh (D-IN) — (202) 224-5623
*Sen. Barbara Mikulski (D-MD) — (202) 224-4654
*Sen. Olympia Snowe (R-ME) — (202) 224-5344
*Sen. Bill Nelson (D-FL) — (202) 224-5274
Sen. Richard Burr (R-NC) — (202) 224-3154
Sen. Kitt Bond (R-MO), Vice-Chairman — (202) 224-5721
Sen. Saxby Chambliss (R-GA) — (202) 224-3521
Sen. Orrin Hatch (R-UT) — (202) 224-5251
Sen. Russ Feingold (D-WI) — (202) 224-5323
Sen. Sheldon Whitehouse (D-RI) — (202) 224-2921

* Means these are the ones who need the most calls.

Here are toll free #s to reach them:

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

Tell them:

No retroactive immunity for telecom companiesand no umbrella warrants. Period.
As Christy says, "If they didn’t do anything wrong, why should they get retroactive immunity? And, worse, if it is likely that they broke laws, why on earth would the Senate just hand lawbreakers retroactive immunity before fact-finding on potential criminal conduct was even completed?!? That makes no logical or ethical sense."

But, please, read all of her post here (lots of good info and links).

Some Previously Secret FISA Details

According to the AP, Director of National Intelligence Mike McConnell revealed to The El Paso (Texas) Times some previously secret details:

• McConnell confirmed for the first time that the private sector assisted with President Bush's warrantless surveillance program. AT&T, Verizon and other telecommunications companies are being sued for their cooperation. "Now if you play out the suits at the value they're claimed, it would bankrupt these companies," McConnell said, arguing that they deserve immunity for their help.
  
• He provided new details on court rulings handed down by the 11- member Foreign Intelligence Surveillance Court, which approves classified eavesdropping operations and whose proceedings are almost always entirely secret. McConnell said a ruling that went into effect May 31 required the government to get court warrants to monitor communications between two foreigners if the conversation travels on a wire in the U.S. network. Millions of calls each day do, because of the robust nature of the U.S. systems.
  
• McConnell said it takes 200 hours to assemble a FISA warrant on a single telephone number. "We're going backwards," he said. "We couldn't keep up."
  
• Offering never-disclosed figures, McConnell also revealed that fewer than 100 people inside the United States are monitored under FISA warrants. However, he said, thousands of people overseas are monitored.

Actually in the interview he called them "man hours" - I'll leave it to others to sort out the gender politics at play in that sentence.

He also said that Americans will die because of the discussion about FISA:

Q. So you're saying that the reporting and the debate in Congress means that some Americans are going to die?

A. That's what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it's a democratic process and sunshine's a good thing. We need to have the debate. The reason that the FISA law was passed in 1978 was an arrangement was worked out between the Congress and the administration, we did not want to allow this community to conduct surveillance, electronic surveillance, of Americans for foreign intelligence unless you had a warrant, so that was required. So there was no warrant required for a foreign target in a foreign land. And so we are trying to get back to what was the intention of '78. Now because of the claim, counterclaim, mistrust, suspicion, the only way you could make any progress was to have this debate in an open way.

And so it goes.

Jack Kelly on the FISA Reorganization

Sorry this is late - I was in Canada.

I posted recently on the Congressional votes giving President George Bush even more surveillance authority.

Well my favorite local conservative pundit, Jack Kelly, chimed in on the recently retooled FISA statute. Not surprisingly, he panders and spins and throws in a healthy dose of fear mongering. J-Kel paints the retool as necessary to avoid unavoidable terrorism, though he begins with a story that's already of dubious quality:

There could have been thousands of lives lost and an enormous impact with devastating consequences for international air travel," Homeland Security Secretary Michael Chertoff told ABC News Monday. Mr. Chertoff was speaking of the al-Qaida plot -- narrowly averted last August -- to plant liquid explosives on London-based airliners headed to the United States.

If al-Qaida has made similar plans for this August, there's a good chance they'd succeed

Here's the ABC coverage of what Chertoff told ABC.

Jack used to be the P-G's "national security correspondent" and unfortunately for this column's credibility, the plot he mentioned has already been debunked - by a real national security expert, former CIA employee in the Directorate of Intelligence and former deputy director at the State Department's office of counter Intelligence, Larry Johnson.

Johnson said last year that the plotters had no working device, no passports, no tickets. Futhermore, CNN reported at the time that the group was infiltrated by British Intelligence and thwarted by British and Pakistani authorities. Looks like good old fashioned police work uncovered the almost-plot.

What relevance does it have to FISA? Jack's just trying to scare us into agreeing with him.

Kelly spends the first part of his column describing the necessity of retooling FISA so that all foreign based communications that happens to be routed through the US can be surveilled warrant free. OK fine. Most critics of the retool agree that that was a necessary part. Jonathan Alter of Newsweek:

Congress had good reason to amend the 1978 Foreign Intelligence Surveillance Act (FISA). After the shift from satellites to fiber-optic cable for most international phone calls, the statute was as out of date as disco. With Congress, the courts and President Bush squabbling over his illegal wiretapping program, the government was actually conducting less surveillance of foreign nationals than before 9/11, which was crazy. We had to do more listening in, especially with scary new intelligence "chatter" suggesting an unspecified attack on the U.S. Capitol this summer. Congressional sources who attended the late-July classified intel briefings, but won't talk about them for the record, say these threats didn't sound like spin. After all, we're not talking here about trumped-up Iraqi WMD, but Al Qaeda terrorists who have already tried to kill us.

It's the other part that's nasty. Jack Kelly:

The amended law also permits interception of foreign communications directed into the United States without a warrant, provided that the person in the United States is not the target of surveillance. So if Ayman al Zawahiri calls a Muslim student in Florida, the NSA can just listen. But if authorities want to monitor any subsequent calls that the student makes, they have to get a warrant.

See? It's ok. It's only a terrorist who's calling a Muslim. Nothing to worry about. However as Alter points out, that also means the:

authority to spy without a warrant on any American talking to a foreigner, even if it's you and the guy from Mumbai fixing your printer.

So now it's a little scarier. Alter, again:

I hate to sound melodramatic about it, but while everyone was at the beach or "The Simpsons Movie" on the first weekend in August, the U.S. government shredded the Fourth Amendment to the Constitution, the one requiring court-approved "probable cause" before Americans can be searched or spied upon. This is not the feverish imagination of left-wing bloggers and the ACLU. It's the plain truth of where we've come as a country, at the behest of a president who has betrayed his oath to defend the Constitution and with the acquiescence of Democratic congressional leaders who know better. Historians will likely see this episode as a classic case of fear - both physical and political - trumping principle amid the ancient tension between personal freedom and national security.

Or maybe they just wanted to get to their vacations.

Follow-up on FISA

In this posting, I asked if anyone knew who the sixteen Senate Democrats were who voted in favor of S. 1927. I finally was able to track down the vote in the Senate. The sixteen:

Bayh (D-IN)
Carper (D-DE)
Casey (D-PA)
Conrad (D-ND)
Feinstein (D-CA)
Inouye (D-HI)
Klobuchar (D-MN)
Landrieu (D-LA)
Lincoln (D-AR)
McCaskill (D-MO)
Mikulski (D-MD)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Salazar (D-CO)
Webb (D-VA)

Just for the record both Pennsylvania Senator Bob Casey and local Congressman Jason Altmire voted in favor of the recent restructuring of the FISA statute.

And what did they vote for?

Spencer Ackerman over at TPMMuckraker begins his analysis with this:

It's a fairly safe bet, judging by the amount of expert disagreement about the act's provisions, that most members of Congress don't know what they've just passed.

Never a good sign. And then:

What's clear is that now the Attorney General and the Director of National Intelligence can now obtain the international communications of U.S. citizens or residents without a warrant provided that such surveillance is "reasonably believed" to be "directed at" persons outside the country. The FISA Court's new, restricted role here is to determine -- up to six months after the fact of the surveillance -- that the government's procedures in seeking the primarily-foreign data is not "clearly erroneous." If it isn't, the surveillance goes forward.

One of the most controversial, and little understood, provisions in the bill changes the definition of electronic surveillance -- but not substantively. In short, it takes out from Fourth Amendment protections surveillance of a person "reasonably believed to be located outside of the United States," no matter who that individual communicates with, inside or outside the United States.

He quotes Jim Dempsey, policy director of the Center for Democracy and Technology, saying:

If you are talking with somebody overseas, and the government intercepts that communication, it is electronic surveillance if government says they were directing the surveillance at you,

But...

It is not electronic surveillance if the government says it's directing the surveillance at a person overseas.

That's what they voted for. Thanks, guys.

Not to fear. But House Speaker Pelosi and Senate Majority Leader Reid have both said they'll revisit the issue in six months.

Here's a shocker. Dubya wants to revisit the issue, too. From the White House:

While I appreciate the leadership it took to pass this bill, we must remember that our work is not done. This bill is a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law.

When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.

Isn't that last part an odd phrase? It also pops up here in the Director of National Intelligence's letter to Congress outlining the "Critical Changes Needed" for FISA:

Second, those who assist the Government in protecting us from harm must be protected from liability. This includes those who are alleged to have assisted the Government after September 11, 2001.

That means legal immunity for those telecom companies who participated in the dubya's illegal domestic surveillance.

Democrats in Congress cave in (yet again) to the worst president ever and the 4th Amendment takes another body blow.

Thanks, Bob. Thanks, Jason.

Senate Democrats Cave

Ladies and Gentlemen, let me explain something about the Congressional approval ratings. Republicans don't like (in fact they can't like) the current Congress because it's run by the Democratic Party. That's completely understandable.

Democrats don't like the Congress because the Congress does things like this:

The Senate bowed to White House pressure last night and passed a Republican plan for overhauling the federal government's terrorist surveillance laws, approving changes that would temporarily give U.S. spy agencies expanded power to eavesdrop on foreign suspects without a court order

The LA Times sees it this way:

Bowing to pressure from the Bush administration, the Senate passed emergency legislation Friday that would significantly expand the authority of U.S. spy agencies to monitor overseas phone calls and e-mails.

It also would remove requirements for court approval when those communications passed through the United States.

Bowing to pressure from the most unpopular White House since Nixon's last days.

It's S.1927. So far all I can find is the vote numers 60-28. From the Washington Post:

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." [emphasis added]

Anyone know who those sixteen were? More from the Post:

Privacy advocates accused the Democrats of selling out and charged that this bill gives the government more authority than it had under a controversial warrantless wiretapping program begun in secret after the 2001 terrorist attacks. Under that program, the government could conduct surveillance without judicial oversight only if it had a reason to believe that one party to the call was a member of or affiliated with al-Qaeda or a related terrorist organization. This bill drops that condition, they noted.

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.

But alas, all is not lost. From Talkingpointsmemo:

Harry Reid emphasized that yesterday's measure is temporary, and that the Senate will revisit the issue in six months. That's not exactly reassuring. For one thing, Dems will be just as fearful in February as they are now. For another, that's six months of the administration having largely unchecked surveillance power.

Weren't we supposed to "not worry" about the USAPatriot act because there were "sunset" provisions in it? What happened when the act was revisited?

That's right. Most of the "sunsetted" stuff remained - and was made permanent.

UPDATE: The bill passed the House 227-183 (Democrats cave again). How did the locals do with the yeas and nays?

Doyle - Nay
Murtha - Nay

Altmire - Yea
Murphy, Tim - Yea

Hmm. Congressman Altmire's got some explaining to do.

Bush, FISA, and More Deceptions

First - were you at all curious about the timing of the new FISA discussions in Congress? Me too. Reuters has a possible explanation:

A U.S. intelligence court earlier this year secretly struck down a key element of President George W. Bush's warrantless spying program, The Washington Post reported in its Friday edition.

The decision is one reason Congress is trying to give legal authorization to the spying program in fevered negotiations with the Bush administration this week, the Post reported.

The intelligence-court judge, who remains anonymous, concluded that the government had overstepped its authority by monitoring overseas communications that pass through the United States, the Post said, citing anonymous government and congressional sources.

But wait - it was a secret? How did we find out about it then? Check out today's Washington Post:

House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court's decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

What is it with these Republicans leaking classified information for political gain? Don't they know that it's a dangerous world? Leaking classified information is tantamount to giving aid and comfort to the enemy, or so I'm told.

So the secret, classified FISA court struck down part of dubya's domestic surveillance plan (in secret, of course) and yet when a Repulican member of the House discloses that information on the Republican "news" channel, it's somehow not "revealing classified information."

Yea, and Valerie Plame wasn't covert, either.

But beyond that - what would this new FISA scenario look like? This is from the AP:

The law generally requires court review of government surveillance of suspected terrorists in the United States. It does not specifically address the government's ability to intercept messages believed to come from suspects who are overseas, opening what the White House considers a significant gap in protecting against attacks by foreigners targeting the U.S.

Democrats, who control Congress, would allow the messages from foreign targets to be intercepted, but only after a review by the special FISA court to make sure the surveillance does not focus on communications that might be sent to and from Americans.

They reject the Bush administration's proposal to give Gonzales speedy authority to decide if the surveillance properly targets people overseas _ and not in the United States.

The Bush Administration wanted to give more authority to AG Gonzales?

This AG Gonzales?

Senators in both parties concede they don't have enough evidence to make a perjury charge stick against Attorney General Alberto Gonzales. But that doesn't mean they're going to quit trying to pry him from office.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., is considering asking the Justice Department's inspector general to examine whether Gonzales' answers to questions from lawmakers amount to misconduct.

"I am deeply concerned about the seriousness of his misleading testimony and the pattern that has developed with regards to the attorney general's testimony over the years," Leahy said Thursday. "At the very least, I am considering sending his answers as they stand to the inspector general for review."

Ranking committee Republican Arlen Specter doesn't sound like he'd stand in the way.

"I think we need to finish this (the committee's) investigation and find a way to end the tenure of Attorney General Gonzales," Pennsylvania Sen. Specter said Thursday at a hearing.

End the tenure of Alberto Gonzales. IMPEACH.

Ex-FISA Judge on Domestic Surveillance

Via the AP:

A federal judge who used to authorize wiretaps in terrorism and espionage cases criticized yesterday President Bush's decision to order warrantless surveillance after the Sept. 11, 2001, attacks.

"We have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war," said Royce C. Lamberth, a U.S. District Court judge in Washington and a former presiding judge of the Foreign Intelligence Surveillance Court, speaking at the American Library Association's annual convention.

And:

Lamberth, who was appointed to the federal bench by President Ronald Reagan, expressed his opposition to letting the executive branch decide on its own which people to spy on in national security cases.

The judge said it is proper for executive branch agencies to conduct such surveillance. "But what we have found in the history of our country is that you can't trust the executive," he said.

"The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs," Lamberth said at the Washington Convention Center. "We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive."[emphasis added]

By the way, this guy was a Reagan appointee.

In Case You Missed It

Within the larger context of the administration seeking to "revise" the rules for domestic surveillance in front of a very skeptical the Senate Intelligence Committee, The New York Times is reporting this morning that:

Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.

Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.

As a result of the January agreement, the administration said that the National Security Agency’s domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.

But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.

Looks like we're back to someplace before square one. What is says is that basically while dubya's domestic surveillance had been brought under the legal structure of FISA as of January 2007, there's no guarantee that it will continue to be. Oh yea, and dubya still claims the Constitutional authority to ignore the law, even if he's not Constitutionally ignoring it now.

Here's the letter AG Gonzales sent to Congress outlining the change last January 17. His first paragraph:

I am writing to inform you that on January 10, 2007, a judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection internal communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.

But on whether the rules are "revised" the New York Times editorial board has an opinion. It's less of a revision, they write, than a gutting. They also lay out the reason dubya's pushing for it:

Mr. Bush’s motivations for submitting this bill now seem obvious. The courts have rejected his claim that 9/11 gave him virtually unchecked powers, and he faces a Democratic majority in Congress that is willing to exercise its oversight responsibilities. That, presumably, is why his bill grants immunity to telecommunications companies that cooperated in five years of illegal eavesdropping. It also strips the power to hear claims against the spying program from all courts except the Foreign Intelligence Surveillance Court, which meets in secret.

In case you missed it.