Drop your FISA hopes for Obama, Josh Marshall

MSLBer Jsh Marshall, host of Talking Points Memo, links to this Congressional Quarterly article as hope that Obama will get the telco immunity he voted for in last year’s FISA bill. Fat chance, as the ACLU notes on page 2 of the story. Josh, you’re grasping at straws.

Meanwhile, the Foreign Intelligence Surveillance Court, whether simply making its best honest ruling by its lights or else trying to inject itself into civil suits, is expected to release a public ruling that warrantless snooping on Americans is OK.

Warrantless wiretap suit gets OK

U.S. District Judge Vaughn Walker has green-lighted an amended lawsuit by two lawyers who formerly represented a now-defunct Islamic group. This is also good news for the Electronic Frontier Foundation’s lawsuit on FISA immunity; Walker is handing that case, also.

Telco immunity front and center

U.S. District Judge Vaughn Walker starts his hearing on FISA telco immunity at noon Texas time today. Wired is liveblogging the hearing.

Here's among the latest BushCo statements:

The immunity legislation "represents the considered judgment of our nation's political branches that, in the unique historical circumstances following the 9/11 attacks, telecommunications companies should not bear the burden of defending against claims that those companies assisted the government in its efforts to detect and prevent further terrorist attacks."

Yeah, right.

Thanks for protecting our civil liberties, Obama — NOT

NOT! is right

Only a couple of months after Barack Obama, by that time the putative leader of the Democratic Party, caved in the Senate on the FISA amendment bill and voted to allow the possibility that telecom companies would be immunized from prosecution for spying on ordinary Americans, the National Security Agency is moving toward trying to make that a reality.

Justice Department special counsel Anthony Coppolino says the government intends to meeth the immunity bill's procedural hurdles by Sept. 19 and thus seek blanket immunity on behalf of the companies.

Now, U.S. District Judge Vaughn Walker, overseeing 36 commingled lawsuits in a San Francisco federal court, still may not grant that immunity request. In fact, Walker has set a Dec. 2 hearing in which he would allow the Electronic Frontier Foundation to challenge the immunity legislation B.O. helped pass July 9.

Per the Wired story, the EFF is challenging the constitutionality of Obama’s work on five grounds:

1. Congress violated the separation of powers by attempting to usurp judicial authority to decide the Fourth Amendment claims of millions of ordinary Americans who have been, and continue to be, subjected to dragnet surveillance for the past seven years.

2. Congress exceeded its constitutional authority by passing legislation that grants to the Executive the discretion to essentially dictate the outcome of specific, pending litigation.

3. The statute improperly requires dismissal of claims of illegal surveillance between September 11, 2001 and January 17, 2007 based not on a judicial finding about the facts of the surveillance or the legality or constitutionality of the surveillance, but instead merely based on a 'certification" from the attorney general that some unknown member of the Executive branch told the carriers that some undescribed surveillance is 'lawful.'

4. The legislation denies due process to the plaintiffs by granting to the Executive, rather than the courts, the essential decision making about their constitutional and statutory rights.

5. The legislation purports to grant the Executive a unilateral right to require that the court keep secret not only the evidence, but also its own decisions.

On paper, the EFF has got a strong claim. But not ironclad.

Point No. 1 may play well to judges, starting with Walker, who are prickly about judicial prerogatives and independence. Legally, in the narrow sense, a bit different.

Point No. 2 is simply a legal pleading.

Points No. 3 and 4 are the key, with Point 5 tagging along with Point No. 4 on due process issues.

But, since Obama is a constitutional law genius, he anticipated all of these concerns and duly weighed them before rejecting them, right?

So much a constitutional law genius that Passive Pelosi™ and the other FISA 45-percenters in the Democratic party followed right along.

You know you still have an option.

Vote Green.

RIP civil liberties – with House roll call of surprising turncoats

The Turncoat Yeas?

Topped by the Turncoat-in-Chief, Passive Pelosi™. And followed, among others, by her loyal lieutenant John Murtha.

Not even close, overall, with many, many Democratic “cavers” in a 293-129 vote.

Call it a “supercave,” in fact, if Kit Bond likes it this much:

“I think the White House got a better deal than they even they had hoped to get.”

And TPM has an inaccurate headline: Only SOME Dems “vented.” About 45 percent of Democrats crossed the aisle, 105 in all, with just one Republican, Illinois’ Timothy Johnson, joining the 128 Democrats in opposition.

Among Texas Democrats, locally, Eddie Bernice Johnson voted no. Turncoats include Silvestre Reyes, of course, Nick Lampson, Chet Edwards, Al Green, Gene Green and Ruben Hinojosa. (More below on the surprising, even shocking, amount of turncoats in the Congressional Black Caucus.)

Nationally, more surprising turncoat Dems include Norm Dicks, Jane Harman, Colorado’s Mark Udall, Bucks County, Pa. freshman Patrick Murphy, who I had hoped wouldn’t be that much of a Blug Dog type, and Steny Hoyer, refuting Glenn Greenwald’s alleged insider news that Steny would be hypocritical enough to vote against it after pushing for it.

Also, stalwart black Democrats and Congressional Black Caucus members like Jim Clymer, Alcee Hastings, Sanford Bishop, Corrine Brown, G.K. Butterfield, Emanuel Cleaver, Artur Davis, Gregory Meeks, Laura Richardson and Bennie Thompson, who should know better based on government spying on Martin Luther King, if nothing else, were also turncoats. All told, about 25 percent of the CBC caved.

Even the Congressional Progressive Caucus had a few defectors. They include Brown and Richardson from the CBC, and Luis Guitierrez of Illinois.

Here’s the roll call.

And Obama is OK with the vote.

Then, to top it all off, Dems send out a fundraising e-mail Friday afternoon.

Obama a sellout on FISA

Obama is totally cool with the House FISA bill.

Oh, and although I’m sure he will pull the “D” lever too, in a much milder way, Josh Marshall says Obama is at least a disappointment, if not a sellout.

So, all you Obamiacs? All you last-ditcher Democrats who hate people like me mentioning the phrase “Green Party”? Read my lips:

Just.Another.Politican.™

Vote Green.

Add that to the Passive Pelosi™-led House sellout, and why would any real progressive vote Democratic?

Unless you want to continue to be an “enabler,” of course.

Turley — House FISA cave is CYA by Dem leadership

Constitutional law scholar Jonathan Turley spells out the same thing a number of us bloggers have said — the cave on telco immunity in the new FISA bill is a huge cover your ass for the Democratic Congressmen who have known too much for too long about warrantless wiretapping and other apparent illegalities.

Remember, as House Minority Leader before 2007, Passive Pelosi™ herself was privy, ex officio, to all the select intelligence briefings from the White House.

Turley’s comments are blistering:

“The Democrats never really were engaged in this. In fact, they repeatedly tried to cave in to the White House. … I think they’re simply waiting to see if the public's interest will wane.

How true he speaks.

More comments by Turley, both transcribed and on video, at the link.

Call your Representative if you haven’t yet.

Telecom immunity not 9/11 related but is secretive

Here’s a few of the details on the FISA immunity bill (full PDF).

‘‘SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY
DEFENSES.
‘‘(a) REQUIREMENT FOR CERTIFICATION.—Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court againstany person for providing assistance to an element of the intelligence community, and shall be promptly dismissed if the Attorney General certifies to the district court of the United States in which such action is pending that—
‘‘(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;
‘‘(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
‘‘(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect Amer
ica Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;
‘‘(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—
‘‘(A) in connection with an intelligence activity involving communications that was—
‘‘(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
‘‘(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
‘‘(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community the deputy of such person) to the electronic
communication service provider indicating that
the activity was—
‘‘(i) authorized by the President; and
‘‘(ii) determined to be lawful; or
‘‘(5) the person did not provide the alleged assistance.

So, the warrantless wiretapping cases under lawsuit do not have to be 9/11 related.

“Activities in preparation for a terrorist attack.” What a Mack truck loophole. And, since this is subject to presidential certification that it was an actual terrorist attack that was being planned, the Miami ‘terrorist’ wannabe wannabes could have been illegally surveilled and BushCo would argue for the suit to be dismissed.

Or, another case. Were Bush protestors in New York City at the 2004 Republican National Convention “terrorist related”? I'm sure BushCo would claim the answer is “Yes.”

And, the government’s allegations can all be made in camera, ex parte, so the public will never know what is actually going on.

That’s the biggie, beyond immunity itself. Steny Hoyer may say, well, at least this isn’t the Kit Bond amendments proposed last year that would have had the FISA court determine telco immunity, but it’s hardly better.

Those good old states rights Republicans and their Democratic enablers forbid state courts to hear such suits. Nor can state attorneys general conduct their own investigations of warrantless wiretapping. Nor can they use state public utilities commissions or other regulatory agencies to get any information.

And, we may get more “reform” after this, as the FISA amendment bill calls for a one-year report by the IG of the Department of Justice and/or the Director of National Intelligence.

And, ultimately, as the Electronic Frontier Foundation points out, with the main factor of a “Presidential permission slip,” discussed in secret, being telecoms’ “get out of lawsuits free” card, other “compromises” really don’t mean anything.

And, that’s not even looking at the rest of the FISA renewal bill and whether it’s really all that necessary.

If you have not yet done so, it is still not too late to contact your Member of Congress.

Note to Democratic voter enablers – vote Green

How many progressive Democratic voters are gong to bitch after Passive Pelosi™, Slippery Steny and Hardly Relevant Harry Reid ram telecom immunity down the collective public throat, but then pull the “D” lever in November, not just for their particular Member of Congress, but for Democrats as a party?

You know the answer.

Lots.

You’re enablers.

And spare me the bullshit about electing Republicans by voting Green.

In the middle of the Gilded Age, Greenback Party and Populist Party voters didn’t buy that bullshit. They kept voting populist as James Garfield

And eventually, starting with William Jennings Bryan, Democrats started incorporating elements of the Populist platform

Did Socialists back down from supporting Eugene Debs in 1920 for fear of Harding becoming president, even though Debs was running for president from a jail cell? Hell, no, and he got his best showing ever.

Did millions of Progressives shy away from voting for Henry Wallace in 1948? Not at all.

Send some love to Cindy Sheehan in her campaign against Pelosi. Don’t “enable” Democrats any more.

Kucinich ups impeachment ante on House Dem leadership

Were 35 articles of impeachment not enough? Dennis Kucinich promises 60 more unless the House Judiciary Committee, Chairman John Conyers (and the ultimate puppetmaster, Speaker Nancy Pelosi), get cracking.

Kucinich, in comments originally reported at a WaPost blog, gives Conyers 30 days to act.

“The minute the leadership said ‘this is dead on arrival’ I said that I hope they believe in life after death; because I’m coming back with it,” Kucinich vowed in an interview with the Sleuth this week. “It’s not gonna die. Because I'll come back with more articles. Not 35, but perhaps 60 articles.”

Sounds generous to me, actually.
I don’t know whether Kucinich is being generous, or he’s trying link his pressure to the status of FISA renewal and specifically the issue of telecom immunity.

Pelosi and Reid cave on FISA ‘fix’

This has been rumored since last Friday, when I first blogged about it, but five days incubation time makes it less palatable, not more so.

There’s several interesting takes, starting with Carl Hulse at the NYT.

First, Hulse is reading a mythical alternative to the actual bill:

House and Senate leaders of both parties said negotiators were near a deal on extending the authority to track terror suspects overseas while protecting the civil liberties of Americans as spy agencies sift through cell phone calls and other electronic communications that did not exist when the surveillance law first came into being.

Punting the telco immunity issue to a court, especially if it gets punted to FISA court and not the U.S. district courts involved with telco suits, doesn’t protect MY civil liberties.

Then, there’s this wonderful comment by Harry Reid:

“They’re very close to working out a fix.”

Reid doesn’t want to touch the House with a 10-foot pole, but, as when the Senate passed its initial version of FISA renewal, with immunity, he’ll find some excuse like “Senate procedural rules” to take a pass on actually standing up for Americans.

Meanwhile, back at the House, Passive Pelosi™ is also ducking her responsibility:

“We want to pass a bill that will be signed by the president.”

Well, since Georgie-Porgie won’t sign a bill without telco immunity, you’ve officially thrown in your hand.

This, in turn gives further credence to the theory that you’ve “stuffed” Kucinich’s impeachment efforts for 18 months in part because YOUR ASS would be on the online on the warrantless wiretap counts.

That, then, reminds to remind you:

1. There’s a petition to remove Pelosi from the Speakership.
2. Cindy Sheehan is still running against Pelosi. You can check her website here here.

Finally, Glenn Greenwald has an excellent about what’s really at stake — long-term control of the House, and not necessarily for Democrats as a party, but the power of individual Dems such as Majority Leader Steny Hoyer:

What people like Hoyer and Rahm Emanuel are pursuing is the consolidation of their power so that they become entrenched and can control Congress for the next decade, at least. That's obviously their first and only objective, and they are willing to sacrifice anything that they perceive at all threatening to that goal — including efforts to stop the war in Iraq, basic constitutional liberties, protections against warrantless eavesdropping, and the equal and firm application of the rule of law.

And, to complete the hypocrisy, Glenn says Hoyer will actually vote against the bill when it comes up to wash his hands of it.

Telco sellout immunity deal reached

Supposedly, Congressional negotiators and the White House have reached a deal on a new FISA bill that purportedly will send individual telco cases to courts to decide, but …

Will have those courts making immunity decisions with a stacked deck:

Under the possible accord, a federal court could immunize a company by ruling it had been given written assurances that its participation in the U.S. government's warrantless domestic spying program was legal and authorized by President George W. Bush, one source said.

This is a SELLOUT, as the ACLU already recognizes:

“This is a terrible deal,” said Caroline Fredrickson of the American Civil Liberties Union. “It’s just a quick way to dismiss the cases. They (phone companies) just have to show that the president told them to break the law.”

And, you know that, if Bush said nothing specific at the time, he’ll give them an ex post facto get out of lawsuits free card.

Basically, this is like the Kit Bond proposal from this spring, except with district trial courts deciding the immunity issue rather than the FISA court.

Well, we’ll see if Barack Obama is a real progressive by whether or not he filibusters this bill, should it get to the Senate.

Question: Will Silvestre Reyes, et al step up to claim paternity for this bastard bill, or will they slouch toward Bethlehem, or AT&T, whichever they can reach first?

The direct way for Obama to act against telco immunity

Over at Washington Monthly, guest blogger dday calls on Barack Obama to denounce, or whatever, House Intelligence Committee Chairman Silvestre Reyes’ “conversion” to supporting including telecom immunity in a renewal of the Foreign Intelligence Surveillance Act.

(Sidebar: As I blogged earlier, WTF led Reyes to be so fine NOW with telco immunity, when he made himself into a progressive hero this spring?)

Anyway, if the eventual House bill needs any reconciliation with the Senate version, Obama has his chance …

To filibuster.

(Assuming that 41 Dems don’t have enough real patriotism to invoke cloture in the first place.)

Who bought off Silvestre Reyes? Will Obama stay silent?

And, if the chairman of House Intell is so fine NOW with telco immunity, what changed in the last month?

Answer. Nothing.

Except a Democratic presidential campaign.

Over at Washington Monthly, guest blogger dday calls on Barack Obama to denounce, or whatever, Reyes “conversion.”

Five bucks says it ain’t gonna happen.

Bob Barr having early effect on Schmuck Talk Express™?

Possibly. Or, he soon will.

Schmuck Talk Express™ has gotten out his Arizona sand flip-flops and let a top advisor suddenly get concerned about telecom immunity over telcos’ warrantless snooping on Americans.

McCain legal advisor Chuck Fish said telcos would need to explain themselves at Congressional hearings in order to justify immunity grants.

“There would need to be hearings, real hearings, to find out what actually happened, what harms actually occurred, rather than some sort of sweeping of things under the rug.”

But, Schmuck Talk has steadfastly and strenuously opposed telco immunity in the past.

His campaign sought to “clarify” Fish’s original comments on the issue last week, but the clarification actually made more of a muddle.

Further clarifications by McCain, or not, and any change in Fish’s status, or not, especially if Barr picks up on this, could be very interesting.

Is the immunity-free FISA bill really that?

Did House Democrats pass a FISA bill that is free from telecom immunity on a de facto basis as well as de jure?

Or, given the history of judiciary deference to the executive branch on things like state secret claims, did the House actually just punt an immunity decision to a judge?

The House’s FISA bill leaves it to a trial judge to determine if telecommunications companies being sued for warrantless wiretapping should be given immunity. If, and a big enough “if,” a judge rules the telcos should stay in the dock, the Bush Administration will certainly immediately invoke the “state secrets” claim. And, judges have given a lot of leniency on that issue in the past.

My Political Cluelessness column about Speaker of the House Nancy Pelosi aside, you and I know that many Members of Congress know that, too.

In other words, it's arguable that Democrats are punting, punting to the judiciary, as much or more than taking a real stand.

House Dems actually have backbone on telco immunity?

House Democratic leaders are prepared to say no to telecom immunity as part of FISA renewal with a much better alternative This bill would authorize trial judges in the suits already pending against AT&T et al to look at the actual evidence, thus legally throwing out BushCo’s “state secrets” claim, make a summary of their findings for plaintiffs, and continue to hear the suits from that point.

Here are key points:

The tentative proposal worked out by House Democratic leaders, officials said, has three main elements.

It would impose tougher restrictions on National Security Agency eavesdropping than the Senate version does by requiring court approval before the agency’s wiretapping procedures, instead of approval after the fact. It would also reject retroactive immunity for the phone carriers.

The proposal would also create a bipartisan Congressional commission with subpoena power to issue a report on the surveillance programs, including the one approved by Mr. Bush to monitor some Americans’ international communications without warrants.

The commission would seek to find out how the program was actually run. Some Democrats complain that even now, more than two years after the program was first publicly disclosed, many questions about its operations remain unanswered.

Theoretically, this is actually better for telecoms. They could, with all cards laid on the table, present as vigorous of a legal defense as they wanted. Or, once they knew for once and for all that the state secrets issue was dead, they could decide to accept the obvious, and then get down to the business of negotiating out-of-court settlements.

One thing the House bill does not have is federal indemnification of claims against telcos. And I agree that it shouldn’t.

First, the warrantless wiretapping started before 9/11. Second, not everybody did it. Once again, it is most relevant to mention Joseph Nacchio and Qwest.