Good news on FISA front

As Glenn Greenwald notes, an appeals court has said that plaintiffs in a suit the ACLU has brought against the U.S. government over warrantless telecommunications wiretapping have legal standing to sue the government.

Team Obama had been continuing the BushCo argument that the plaintiffs could not prove they themselves had been harmed by the snooping and that, due to the stase secretes executive privilege, they could not look at records to determine if this might be the case.

Well, now, just maybe, the state secrets bullshit can get blown up in court.

Maybe some Internet utopians can fill amicus briefs on behalf of poor, poor Team Obama, too.

Or, more seriously, maybe Wikileaks can have some new dumps, directly relevant to this, by the time this goes to SCOTUS because, without that, given the Supremes' deference to the executive branch, I'm afraid this will be overturned.

Torture? No prosecution; Domestic spy whistle-blower? …

So, President Barack Obama says we’re not going to prosecute torturers, or their enablers, but…

He can still hold an indictment over the head of Thomas Tamm, the whistle-blower on the National Security Agency’s domestic spying?

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.

Mukasey officially demands telecom immunity — but not all is over

The too-late-to-shut-the-barn-door bit of silver lining is that he acknowledged the existence of TSP. That said, Judge Walker could do one of two things that would crap a turd in the Mukasey-Bush-Cheney-Addington punchbowl.

That would be to either:
• Pull the judicial equivalent of jury nullification and tell Mukasey where to get off;
• Issue a stay of Mukasey’s request, based on the EFF suit against the government itself rather than the telecoms, filed for exactly this reason.

Walker has no legal reason to resort to option 1. But, he has plenty of legal logic to choose option 2.

(Oh, and thanks once again for an AG like this, Chuck Schumer; with Democrats like you, who needs to vote Republican?)

We WILL see Shrub and Uncle Fester in court (I hope)

Worried that the government will find a way to trash its spying suit againt AT&T et al, the Electronic Frontier Foundation is suing Cheney and Bush themselves.

First, assuming a judge even lets this case sniff a courtroom’s air — by the time it gets there, Fester and the Preznit will be out of office and his lawyers will be paid entirely out of his (rather substantial) dime.

Besides Cheney personally, other notables on the EFF lawsuit include, but are not limited to, former Attorney General John Ashcroft, former Attorney General and White House Counsel Alberto Gonzales, Vice President Dick Cheney, and Cheney's chief of staff David Addington.

For whatever reason, Wired doesn’t list Bush as a defendant, but he is named, on para. 29, page 6 of the PDF (link below).

EFF’s idea is to monkeywrench the government’s ability to grant immunity to the telcos in the first place. (Are you listening, Barack Obama?) And it’s hoping it’s got enough whistleblower evidence for a court to grant standing.

PDF of the actual filing is at EFF's site.

Among the hugely relevant complaints is that the government is getting ex parte information funneled back to itself from AT&T, and that the government may well be spying on the plaintiffs as we speak.

The more than one dozen counts in the suit allege violation of the Fourth Amendment, First Amendment (free association as well as free speech), FISA, 50 U.S.C. § 1809, (specifics regs of electronic surveillance), 18 U.S.C. § 2511 (knowingly using material believed to be illegally intercepted), 18 U.S.C. § 2703 (secure content of stored electronic communication), 18 U.S.C. § 2703 and separation of powers (Congress and Executive usurping judicial functions).

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.

Still hope on FISA telecom suits? I think not, but …

Lawyers for the Electronic Frontier Foundation and American Civil Liberties Union are still working on legal challenges if the Senate passes the House’s FISA bill with telecom immunity.

One option, though I don’t see how it will fly, would be to claim the immunity clause violates the separation of powers between branches of government. Frankly, I think a judge would not only reject that, but if there’s some version of rejecting that with prejudice, would do so.

There’s multiple Senate amendments out there, but, as the story notes, when Chris Dodd tried to strip immunity from the original Senate bill, that got only 31 votes.

Shock me FISA-Yes Dems got more telecom money

Nonetheless, the 94 turncoats on the FISA bill got an average of 70 percent more in telecom campaign donations than civil liberties defending Democrats.

And you’ll note that Dem leaders who voted for the sellout got the biggest checks of all.

Passive Pelosi™ paints false dilemma on FISA bill

Here’s how the not-so-civil-libertarian Speaker of the House tried to justify her yes vote of last Friday.

“If not good enough for some,” the bill is “certainly preferable to the alternative that we have, which is the Senate bill, which must be rejected.”

What bullshit. Write a better bill.

If Bush vetoes it, so what? Pass another enabling bill for the rest of his less than seven months remaining in office.

And, Slippery Steny™ Hoyer chimes in:

“The issue really was whether we would have a compromise that would involve the court in determining whether or not the telecom companies had received justification ... or simply a bill that gave them immunity.”

Well, no and wrong.

First, immunity was only one issue of several. The issue of authorizing basket warrants was bigger for the future, though not perhaps as sexy as telecom immunity. Extending the “exigency” period from three days to a week was also big.

But, back to your primary claim.

Write a better bill. One that didn’t grant immunity AT ALL.

Now, run-Democrats-up-the-flagpole-and-salute voters, like the other bloggers at Proctoring Congress (I may soon stop being an “other” blogger there) will decry Hoyer, even decry Pelosi. They may even decry Obama for not stopping the immunity, while giving him a free ride on the basket warrants and other issues.

But, you know what?

They’ll keep pulling the “D” lever, claiming it’s better than Schmuck Talk Express™.

Well, I have an old axiom for you folks:

Sometimes the good is the enemy of the best.

Obama will NOT filibuster FISA

Sorry, MoveOn. I don’t care what pledges Obama or his campaign made last September.

You can call his campaign all you want at 866-675-2008. You can e-mail Obama spokesman Bill Burton, who gave that vow back in September; ain’t gonna happen.

Obama will go through the motions of trying to remove the telecom immunity, will do nothing about the basket warrant and “exigency” provisions, will “fail” (scare quotes deliberate) and that will be that. On the basket warrants, Obama has already indicated he likes it and other tech-related parts of the FISA bill.

Glenn Greenwald notes that Obamiacs should not give him a blank check on this issue, i.e., the eventual Obama claim of “trust me.”

Jack Balkin (via Glenn) goes further and says Obama wants the expansion of presidential power the new FISA bill offers.

Tying him back to Glenn, then, there’s no guarantee that Obama will appoint SCOTUS justices who will do nothing but uphold this expanded presidential power.

What good will it ultimately do if a Supreme Court votes to uphold Roe v. Wade but at the same time upholds some possibility of the government spying on you if it thinks NARAL is a terrorist group?

So, call away or e-mail, if you want. (I did.) But don’t hold your breath.

Sidebar: Given all this, is it really the best idea for MoveOn, acting at Obama’s beck and call, to shut down its 527 operation?

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.