FISA, Democrats, and False Hope

Yesterday's vote in favor of increased federal spy powers and immunity for past lawbreaking by the telecommunications industry was never in doubt, though you wouldn't know it from the reactions on the left. Bloggers dedicated to supporting the Democratic Party no matter how many times they're kicked in the teeth by it seem to be still tied to the delusion that the Democrats are somehow free of lobbyist influence and opposed to federal power. Barack Obama, especially, has given a swift kick to his status of blogosphere Messiah.

Except for those rare few who see the Democratic Party for what it is, a beacon of false opposition, most are convinced that the solution to the elimination of the Constitution as a legal document is simply electing better Democrats. A quick run through of history proves that folly in short order, however. As with foreign policy, the national security arena is one in which the rhetoric suggesting otherwise does very little in the way of obfuscating the reality of the Democratic Party. Namely, that when in power they are no less susceptible to the lure of unbridled Executive power than the Republicans. After all, it was Truman who set the wheels of the surveillance state in motion with the creation of the NSA.

Nobody embodies this guiding principle more than Barack Obama, who, as a brilliant tactician, is well aware that his electability rides in positions other than those of Daily Kos. IOZ summed up Obama's position on the FISA bill both succinctly and accurately a week ago.

Why is Barack Obama now defending and supporting the "FISA compromise"? Because odds are that Barack Obama is going to be the next President of the United States.

That is, Obama understands that any precedent set to limit Executive power now would essentially be a vote to lessen his own powers in January.

Even Russ Feingold, one of the most vocal opponents of the bill, succumbed to delusion on Wednesday's Countdown. Speaking to Rachael Maddow, Feingold expressed ill-founded hope that the Constitutional damage would be reversed or resolved by a "Democratic president with respect for the rule of law." [I'm paraphrasing] The obvious fact that seemingly escapes Feingold's grasp is that that hypothetical president will be Obama, who hours before had voted against that rule of law. It should pass without argument that pinning one's hopes to the man who had eradicated those hopes just hours before is evidence of insanity.

Jack Balkin also points to another aspect of the 'compromise,' that of the singular focus on telecom immunity to the exclusion of its other substantial incursions on Constitutional rights.

Most Americans don't realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush. President Obama will like having Congress authorize these new powers. He'll like it just fine. People aren't paying as much attention to this part of the bill. But they should, because it will define the law of surveillance going forward. It is where your civil liberties will be defined for the next decade.

Those infringements are not insignificant. Just to use one example, the government will now be able to eavesdrop on all communications from the US to foreign countries. Surely a step well beyond having to obtain a warrant after offering reasonable evidence that an individual was a foreign agent. Contrary to the misleading rhetoric coming from the right, it's fair to say that everyone eavesdropped on will not be a terrorist, and could just as well be any US citizen talking to friends or relatives overseas. For conservatives, anyone spied on is a terrorist simply for that fact. They have attempted to turn the definition of terrorist into a tautology.

Any belief that President Bush is the first Executive who's attempted to consolidate his own power is poorly founded, as is the belief that a Democratic President would be any more adverse to doing so than a Republican one. Increasing federal power is a staple of our American republic, and not relegated to one party or the other. One need only look at the methods undertaken by that liberal hegemon, FDR, to institute his New Deal policies to see evidence of this point.

In the end, Congress wasn't content to merely flush any accountability for Bush's lawbreaking down the memory hole, it saw fit to increase the already-expanding powers of the Executive branch to the point where the Constitution is nothing more than a fading memory. Perhaps in due time, Congress will succeed in creating generations where the only mention of the document is found in history textbooks and folklore.

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FISA and the Death of the Constitution

After months without much movement, the House on Friday approved a new FISA bill that grants the telecoms a free pass for their cooperation in the Bush administration's bid to gut the Constitution, specifically the Fourth Amendment. Presented as a compromise and an exercise in 'bipartisanship' (read: capitulation), the deal as written is anything but.

The bill requires only two stipulations to have civil suits thrown out: a, if the phone company was assisting the government in its surveillance program or, b, if the company received a letter from the government assuring them their action was legal.

The effective result of this language is make the written language of the Constitution second to the whims of the Executive branch in determining legality, clearly a chilling precedent to set. On inauguration day, the President swears to uphold and defend the Constitution, not to rewrite it as he sees fit.

There are a few things about the debate that need to be established, as they have been conspicuously absent from public discourse concerning the issue. First, the debate was never, at any point, about national security. It was always centered on granting immunity. In all public statements in support of the immunity deal, proponents invoked images of an intelligence community hampered by outdated and outmoded laws that left the country in peril. But the evidence that such statements were red herrings and inaccurate was overwhelming.

For instance, foreign-to-foreign communications that pass through US networks were held up as a reason to pass the bill, but no member of Congress would have rejected such a bill, making it clear that it was immunity for the phone companies that was the real target. The Attorney General at one point even fabricated a story about the US not being able to spy on a phone call made from a safe house in Afghanistan (until he changed countries as he squirmed under scrutiny), hoping no one would catch on that such a call would have been fair game even under the original FISA statute.

At every opportunity, the debate over the FISA bill was brought full circle to an accusation that anyone who didn't support immunity was somehow in bed with terrorists. That every member of Congress would have been willing to grant the intelligence community every single tool they needed, sans immunity, is invariably left out. That the argument is allowed to continue without the slightest question raised is infuriating, as one would hope that anyone of functional intelligence would be capable of discerning the glaring logical inconsistencies inherent in the argument.

For an idea of just how restrictive the FISA court has been since its conception, consider that between 1973 and 2007, the court rejected a total of 9 applications while approving 25,360. That's an incredible 0.035 percent failure rate. The court is nothing but a rubber stamp, but apparently that's still too big an obstacle for the Executive branch to uphold the Constitution.

As with the debate over habeas corpus, the proponents of immunity toss around the idea that the US should be able to spy on foreign agents and terrorists while simultaneously attempting to bypass the very apparatus used to establish that point. Again, and it can't be stressed enough, the issue is not whether such individuals should be spied on. The only thing at stake is whether in a Constitutional republic the rule of the founding documents should take precedence over the fleeting whims of a rogue Executive branch. That anyone is considering the latter over the former is intriguing. That the entire legislative branch, presumably a large portion of which are lawyers, defies credulity.

Indeed, upholding the Constitution has somehow become a partisan issue, a curiosity of American political history.

Much has been made since the House vote of the capitulation of the Democrats, but anyone surprised by the action wasn't paying much attention. Liberals like to pretend that the Democrats are free from corporate influence and believe them to be more like the populist campaign image than the same, tired Washington players they are in the space between. If history hasn't dispelled this notion by now, there can be no hope of a revelatory moment anytime soon.


Related:

Sunset (Il)logic, February 24
Capitulation on Telecom Immunity, June 15
John McCain and the Telecoms, June 9

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Capitulation on Telecom Immunity

In February, the fear mongering over renewing the Protect America Act with a clause granting retroactive immunity for participants in the illegal NSA wiretapping program was front-and-center, with obfuscation of the facts and promises of the end of days should immunity not be included. Yet, despite these promises of doom if the act expired, Republicans were unwilling to even vote to extend the PAA to allow for further debate, and instead chose to let it lapse. Just the very fact that they let it lapse is a clear indication that even they didn't believe what they were saying.

Four months later, out of view thanks to incessant superficial coverage of the horse race, Congress is again preparing to grant immunity, only this time in the form of a compromise. But, as EFF reports, such a bargain would be a compromise in name only. In practice, it would grant clemency to the phone companies and keep hidden forever the full extent of Bush's spying program by keeping the details out of court.

Under the guise of a compromise, the legislation is designed to ensure that the only issue the courts will review is whether or not the President told the telecoms that their conduct was legal, but not whether the conduct actually was legal.

Essentially, the new bill would ensure that the question of the legality of the program would never be addressed, as it still hinges on the premise that if the Executive branch unilaterally determines something legal, it becomes so. This judiciary element of the branch is of course nowhere in the text of the Constitution, and to allow it to stand without challenge would do irreparable harm to the founding document.

The passing of a bill granting retroactive immunity would be a vindication and validation of the dangerous Unitary Executive Theory, a conception of unbridled Executive privilege which blossomed in the Nixon administration--of which Dick Cheney was a part--and has appeared in full bloom and bearing fruit in the current regime. In practice, the theory basically means that anything the Executive does cannot, by definition, be illegal by virtue of the fact that he does it. In Nixon's words, "if the President does it, it's not illegal."

The danger of that kind of circular logic should be apparent, yet is conspicuously absent from any public debate. It is quite clearly a perversion of the Constitution's establishment of the separation of powers, belief in which requires either illiteracy or a blatant erasure of significant passages from the document.

Central to debate, and essential for its success from the immunity proponents' perspective, is ritual obfuscation of the reality of the FISA statutes and often outright lies to instill fear in the American public, a task which the lazy media is all too happy to assist with.

Glenn Greenwald has been at the fore on the immunity negotiations, and one of the few people to consistently itemize the falsehoods enveloping the debate. The debate--and I use the term loosely--has always been at the root an effort to grant phone companies immunity. But next to nothing of the fear-inspiring words tossed into the fray deal with the topic at all. Instead, false pretenses and promises of imminent doom are thrown out as if the issues can't be addressed in any bill that doesn't grant immunity.

But things such as foreign-to-foreign communications have absolutely nothing to do with whether or not anyone can be held responsible for past actions.

The whole issue of "foreign-to-foreign" communications is a complete red herring. It's irrelevant in considering whether to enact the Rockefeller/Cheney Senate bill or anything close to it. Even the most stalwart civil libertarians in the Congress -- such as Russ Feingold and Chris Dodd -- have been willing from the start to amend FISA to exclude foreign-to-foreign communications from the warrant requirements.

If the President agreed to sign it, Congress could pass a law amending FISA in one day to fix that particular "problem," and then virtually every scary threat Lichtblau's article describes would instantaneously disappear. All of the supposed fears and dangers Lichtblau's article cites are an absolute sideshow because virtually every member of Congress is willing right this minute to pass a law to amend FISA to eliminate the cause of those supposed dangers -- i.e., the requirement that warrants be obtained to eavesdrop on foreign-to-foreign calls. Pointing to the "dangers" from that requirement in order to justify passing the Rockefeller/Cheney bill is exactly the same as pointing to the threat posed by Al Qaeda in order to justify invading Iraq; one has nothing to do with the other.

What this passage illustrates is that the Republicans and Blue Dog Democrats, for all of the hype, are not the least bit worried about the actual dangers stemming from a failure to pass a new FISA bill. As Greenwald states, no member of Congress thinks that the US should not be able to eavesdrop on foreign-to-foreign communications, even if they pass through US networks, and a bill to allow such spying could be passed in a single day. But, of course, that's not really the issue at hand, immunity is. It should blatantly obvious that granting immunity for past transgressions has absolutely nothing to do with the US's ability to track such communications, yet the debate is allowed to proceed as if that is the case. Not that the 24-hour news cycle has any room left for actual discussion of substantive topics. After all, Britney Spears may be moving hospital beds.

Another favorite talking point of immunity proponents is to declare the FISA laws outmoded, as they were fashioned decades ago when communications were not nearly as advanced as they are today. But this is another red herring. The statutes have been revised over the years, and again, no member of Congress would deny the government the ability to spy on foreign agents using methods of communication unavailable in the 70s. Nevertheless, that falsehood is promoted as another reason that immunity must be granted immediately.

Perhaps the most damning example of the obfuscation surrounding the debate is the unwillingness of the Republicans and Blue Dogs to sign extensions of the PAA. If the dangers posed by not doing so were really what they said they were, would they not then be responsible for anything that happens as a result? Republicans are held up as strong on national security, which makes it even more inconceivable that they would allow a state of (what they say) clear and present danger to persist merely to eliminate accountability for AT&T and Verizon. If they dangers are what they claim, then by extension they are willing to put Americans in danger. Why, then, do Republicans still have a monopoly on "strong on national security?"

The Democrats in Congress are more than willing to grant the intelligence community all the tools it needs for espionage. It is the Republicans who are preventing that from happening.

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Democrats Begin Bipedal Movement

After a closed session on Thursday, the House passed the Democratic proposal for amendments to FISA on Friday, the specifics of which were in Thursday's post. It appears that the Dems have realized the feeble objections of the Republicans were not unassailable and that they could even ignore or defy them at times.

In passing the bill, which will still have a tough time passing the Senate, the Democrats kept retroactive immunity out and put confidentiality protection for the telecoms in. However, this action only stood to prove that when Bush and his minions say 'compromise,' they mean 'do as we say,' as this seemingly reasonable compromise was met with predictable objections from the right.

In presenting these objections, proponents of blanket immunity only illustrate with ever-growing clarity that their arguments are as baseless as they are erratic. Tony Fratto with the current White House version:

Their bill would make it easier for class-action trial lawyers to sue companies whose only offense is that they are alleged to have assisted in efforts to protect the country after the attacks of September 11.

Sorry, Tony, better luck next time. They're not charged with being helpful, they're charged with doing so illegally. But congrats on the ability to keep this charade of illogical tripe going with a straight face. And about the use of 'alleged.' If you want to cast doubt that the companies actually aided you, you might want to shy away from throwing everything you have into trying to protect them from prosecution. When I was younger, I used to try this by flinging myself on top of my mattress when my mother went to flip it. And it certainly wasn't because I had any magazines under there.

The 'they-we're-being-patriotic' reasoning is only the latest in the White House's series of arguments. This shifting is reminiscent of the lead-up to the Iraq War (Saddam's a bad man. No wait, he's bad and he has WMDs. Non-starter? What if he was responsible for the WTC? Umm...democracy. That's the ticket!).

Once upon a time, it was 'well, if immunity's off the table, the phone companies won't cooperate.' One has to assume that this was dropped as the main talking point once a pre-law student informed the administration that a company can't refuse to comply with a legally-acquired warrant. This is a point that is somehow missed in most discussions of immunity; a tragic failure to include a little common sense.

Then, it was 'well, even if it was illegal, the Justice Department said they weren't breaking the law.' Unfortunately for Bush, the Constitution and laws don't change based on JD advisement. But the Democrats even threw him a bone on this one, allowing the companies to bring those advisements to trial in their defense. So that talking point's out, too, I guess. What do you do when the opposition includes a provision that makes your rationale a moot point?

Bush and the Republicans have tried their best to stir up fear on the intelligence bill, but the more they speak, the more it becomes clear their arguments lack validity or substance. Every legal argument thrown out is shot down post haste, so they gravitate to the emotional. When that, too, fails to elicit the response they desire, they call secret sessions to stall and pretend to have some secret information we're all missing. And that's only after they decide they even want to stay in the room and talk about it.

Although this bill will die either in the Senate or the President's desk, it does succeed in showing just how ineffective the Republican fear machine has become, and that's a win for everybody.

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Invertebrate Evolution

In a shocking turn of events, House Democrats have indicated that they do indeed have a semblance of a backbone. Granted, when all is said and done, it is unlikely to pass in its current form, but the Dems plan to unveil their version of amendments to the FISA statute on Thursday.

The summary:

FISA Amendments Act

Bill Summary

March 11, 2008

The revised House legislation to amend FISA grants new authorities for conducting electronic surveillance against foreign targets while preserving the requirement that the government obtain an individualized FISA court order, based on probable cause, when targeting Americans at home or abroad. The House bill also strongly enhances oversight of the Administration’s surveillance activities. Finally, the House bill does not provide retroactive immunity for telecom companies but allows the courts to determine whether lawsuits should proceed.

Title 1: Surveillance Authorities

· Provides for surveillance of terrorist and other targets overseas who may be communicating with Americans.

· Requires the FISA court to approve targeting and minimization procedures – to ensure that Americans are not targeted and that their inadvertently intercepted communications are not disseminated. These procedures must be approved prior to surveillance beginning – except in an emergency, in which case the government may begin surveillance immediately, and the procedures must be approved by the court within 30 days. (This may be extended if the court determines it needs more time to decide the matter).

· Provides prospective liability protection for telecommunications companies that provide lawful assistance to the government.

· Requires a court order based on probable cause to conduct surveillance targeted at Americans, whether inside the United States or abroad.

· Requires an Inspector General report on the President’s warrantless surveillance program.

· Prohibits “reverse targeting” of Americans.

· Explicitly establishes FISA Exclusivity – that FISA is the exclusive way to conduct foreign intelligence surveillance inside the U.S. Any other means requires an express statutory authorization.

· Sunsets these authorities on December 31, 2009 (same as the PATRIOT Act sunset).

Title 2: Litigation Procedures for Telecommunication Company Liability

· Does not confer retroactive immunity on telecom companies alleged to have assisted in the President’s warrantless surveillance program.

· Provides telecom companies a way to present their defenses in secure proceedings in district court without the Administration using “state secrets” to block those defenses.

Title 3: National Commission on Warrantless Surveillance

· Establishes a bipartisan, National Commission – with subpoena power – to investigate and report to the American people on the Administration’s warrantless surveillance activities, and to recommend procedures and protections for the future.

Most glaringly, they have not included a clause granting retroactive immunity to the telecommunications companies, a clause demanded by the Bush administration and included in the Senate version of the bill passed in February. As I stated in a previous post, immunity is the most contentious issue surrounding the amendments to FISA. I've already laid out my objections to that particular argument so I won't redress them here.

Instead of immunity, the proposal would allow the defendants in civil trials to present classified evidence in their defense to the presiding judge. This would be done in secret and the documents would not be publicly available. Inclusion of the clause comes from the administration's claim of "state secrets" which would have prohibited the phone companies from presenting these confidential documents in court, which would go a long way in establishing that they acted in good faith and are therefore not liable.

As it stands, good faith seems to be what defenders of immunity have gravitated toward, saying that regardless of the legality of their actions, the telecoms were acting in good faith and had assurances from the Justice Department that their cooperation in the Terrorist Surveillance Program was legal and legitimate. The proposal would grant them the opportunity to prove that the Justice Department had steered them as suggested and perhaps limit their vulnerability in civil trials.

Third, the proposed legislation would establish an oversight committee and require and Inspector General to report on the program. Seems good in theory, though we pretty much have evidentiary proof that the Bush administration will obfuscate and obstruct to the full extent of its imagination, so that clause is likely a wash.

In spite of the unlikelihood the legislation is passed as is, the Democrats are at least illustrating a little grit on a significant issue.



A couple of additional thoughts per previous discussion of the misinformation regarding immunity and FISA:

• Julian Sanchez presents a pretty thorough debasing of the main pro-immunity talking points here.



• It should be noted that during the period from 1979 through 2006, the FISA court has rejected all of 5 applications for a warrant while approving 22990. The rate of rejection: .022 percent. That's 1/50 of a percent. It seems that the court itself, if the process is seen through properly, is not, and never has been, a hinderance on surveillance authorities.



• For all their posturing, the Republicans aren't even taking part in this debate short of empty proselytizing and instilling fear in the public. This refusal to take part in the proceedings begs the question: If allowing the PAA to lapse was a tragedy, wouldn't working toward a substitute be a priority? In the US Congress, it's a bit hard to expect the other party to simply accept the other chamber's bill without discussion, and trying to stifle any ounce of debate is reckless.

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Sunset (Il)logic

On Friday, AG Michael Mukasey and DNI Mike McConnell sent a letter to the House Intelligence Committee assuring them that the House's failure to extend the Protect America Act had already led directly to lost intelligence. What's pertinent here is the reasoning. Namely, that the phone companies who've cooperated with the government, at times illegally, are reluctant to continue doing so without assurances that they bear no financial liability.

While the fear mongers on the right would have you believe that the moment the PAA expired, every surveillance tool in the government arsenal went out the window and left the country sprawled out on its back waiting for an imminent attack, the letter paints a different story. In fact, Mukasey and McConnell hardly broach a subject other than the telecoms' cooperation, saying that "although most partners intend to cooperate for the time being...they may well cease to cooperate if the uncertainty persists."

Uncertainty, of course, refers to the inclusion of retroactive immunity. Bear in mind that phone companies working on a court order filed through the very broad processes laid out by the amendments to FISA in August of 2007 would bear no liability. If you're working within the rule of law, there aren't consequences. What's at stake, rather, is the telecoms' liability for past actions, when laws were broken. So the suggestion here is that cooperation within the law is impossible given that someone may be held accountable for past law breaking.

In some places, Mukasey and McConnell seem to be on the cusp of grasping the logical inconsistencies, yet so far away. For instance, they say "expiration would create uncertainty concerning...the continuing validity of liability protection for those who assist us according to the procedures of the Protect America Act." Here, again, they put forward an obviously disingenuous argument. No company is liable when acting within the law. That's why the law's there. What the issue is here is what happens to companies that acted outside the law in the past, and that has precisely zero bearing on what happens legally in the future.

This is par for the course, after all. The administration makes its argument on one set of circumstances, while its opponents are more worried about reality. Such as dragnet surveillance. What's infuriating is the framing of the debate in this manner. No one really thinks the government shouldn't be able to gather intelligence from foreign agents. Some just think it should be done within the rule of law and not done by funneling domestic phone and internet traffic through secret rooms in AT&T's offices.

Indeed, the House had offered an intelligence bill which would have extended the PAA for three weeks to allow for more deliberation, an act which was shot down by the Republicans. The House Democrats are willing to grant the President everything in the Senate bill sans retroactive immunity. Clearly, a bill which would not prevent the government from collecting foreign surveillance. So, who's the real villain here? Congress for offering a bill that would extend all necessary provisions for continued surveillance? Or the administration who refuses to accept it - thereby causing a dangerous loss of intelligence, if you believe the AG - because someone might have to answer for breaking the law in the past?

To be clear, foreign targets have no recourse in the American court system. The telecommunications industry has nothing to fear from them. It's domestic traffic that's the issue here, and it's egregious for this administration to continue suggesting that failure to include amnesty for AT&T in this bill puts foreign surveillance at risk.

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