FISA Decision Should Shame Congress

Like Jeralyn, mcjoan has a good analysis of the just released Al Haramein v. Bush opinion by Judge Vaughn Walker of the US District Court for the Northern District of California. The NYTimes has the news points. But mcjoan makes a great point about the significance of the opinion to the current Dem capitulation on FISA:

[T]his opinion should shame a Democratic Congress which has been absolutely negligent in its duty of oversight over the executive. [ . . ]

As mcjoan notes, Walker has a comprehensive review of the legislative history of FISA:

Of special relevance to the court’s present inquiry, Congress included in the FISA bill a declaration that the FISA regime, together with the Omnibus Crime Control and Safe Streets Act of 1968 codified at chapter 119 of Title 18 of the United States Code, 18 USC §§ 2510-22 ("Title III"), were to be the "exclusive means" by which domestic electronic surveillance for national security purposes could be conducted . . .

This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.

. . .

mcjoan notes:

The argument put forth by Democrats--particularly Diane Feinstein and Nancy Pelosi--who are supporting this bill that it is so important because of its exclusivity provisions are only blowing so much smoke. That part of the bill is meaningless, and any slim good it might do is completely superseded by the expansion of executive power it allows.

Frank Church took care of exclusivity 30 years ago, and for good reason. Church and his Congress, unlike this Congress, understood the danger of an unchecked executive and to reestablish the checks and balances supposed to be inherent in the Constitution.

Again, mcjoan cites Judge Walker:

In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner . . .

In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.

H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near- total control over whether the fact of unlawful surveillance could be protected as a secret. . . .

As mcjoan notes:

"[T]he impetus for the enactment of FISA was Congressional concern about warrantless wiretapping of United States citizens conducted under a justification of inherent presidential authority under Article II. Congress squarely challenged and explicitly sought to prohibit warrantless wiretapping by the executive branch by means of FISA [. . .]"

In contrast, the impetus for the enactment of the FISA Amendments Act by this Congress appears to be to enable the Bush administration's efforts to hide its unlawful surveillance by granting amnesty to the telecommunication companies and thus foreclosing perhaps the only avenue open to us to finding out what has been done by this administration in our name--the existing civil cases against the telcos.

The behavior of this Democratic Congress is simply shameful. And the behavior of Barack Obama is especially so. There is no excuse.

By Big Tent Democrat, speaking for me only

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  • Display: Sort:
    shame Congress?? surely you jest (5.00 / 6) (#1)
    by Josey on Thu Jul 03, 2008 at 09:14:50 AM EST

    That assumes that they're capable of shame (5.00 / 4) (#2)
    by Redshoes on Thu Jul 03, 2008 at 09:15:56 AM EST

    Congress has no shame... (5.00 / 2) (#4)
    by MileHi Hawkeye on Thu Jul 03, 2008 at 09:18:10 AM EST
    ...that would require a conscience and the ability to not think of only one's self.

    what I find appalling (5.00 / 1) (#11)
    by Josey on Thu Jul 03, 2008 at 09:45:18 AM EST
    Obama stating he "opposes" Telecom immunity (making sure that's on the record) while going along to get along and insisting the bill is the "best we can do now" (implying - until he's president). But what if he doesn't win? And what if he caves again if he does win?
    How can we expect Pres. Obama to fight for issues he wouldn't fight for as Sen. Obama?

    exactly (5.00 / 2) (#17)
    by kempis on Thu Jul 03, 2008 at 10:09:23 AM EST
    How can we expect Pres. Obama to fight for issues he wouldn't fight for as Sen. Obama?

    Good question indeed.

    His political posturing on FISA is disturbing because it signals that his vote is for sale.

    As BTD has pointed out, polls show that the majority of the public would be behind him if he opposed giving an inch on FISA. Why then would he not get out front and lead a defense of the Constitution?

    The only thing I can think of is the enormous amount of money the telecoms and telecom-investors can pump into the coffers of politicians.

    Once he's elected (if elected) this will not change. There will be a race to run in '12, and with his now established history of forgoing public finance limits, the GOP candidate will also forgo it and $$$ will matter more than ever.


    good points! (5.00 / 0) (#64)
    by Josey on Thu Jul 03, 2008 at 11:39:48 AM EST
    >>>>There will be a race to run in '12, and with his now established history of forgoing public finance limits, the GOP candidate will also forgo it and $$$ will matter more than ever.

    But Obama doesn't seem to consider ramifications of his actions - and Obamabots and the media are entirely willing to let him flip flop on public financing. Whatever it takes to win!


    I think it is time an obamaflipflop watch (3.50 / 2) (#73)
    by PssttCmere08 on Thu Jul 03, 2008 at 12:29:31 PM EST
    is posted somewhere to see when the obama flip-flop that sends his candidacy into the toilet occurs....doesn't look like he plans on standing up for what is right anytime soon.

    Pegasus.....were you upset when there was (5.00 / 1) (#89)
    by PssttCmere08 on Thu Jul 03, 2008 at 03:20:49 PM EST
    a Hillarywatch...I bet not....

    The problem is even worse (4.80 / 5) (#31)
    by frankly0 on Thu Jul 03, 2008 at 10:44:30 AM EST
    than what is suggested in your acute observation:

    How can we expect Pres. Obama to fight for issues he wouldn't fight for as Sen. Obama?

    The problem is that a President Obama will never be able to convince Congress to pass or change legislation that he, as Senator Obama, refused to push for, on the clear grounds of "electability".

    Isn't the obvious pushback from Congress to a President Obama if he pushes for legislation to change the FISA bill or constrain it, "Well, President Obama, when you were Senator Obama you wouldn't push for it because of perceived electability issues. Well, we have perceived electability issues of our own if we alter this legislation. Why should we give you the time of day on this matter, given what you yourself chose to do when you were in our shoes?


    you're right - it is worse (5.00 / 0) (#66)
    by Josey on Thu Jul 03, 2008 at 11:41:48 AM EST
    >>>>The problem is that a President Obama will never be able to convince Congress to pass or change legislation that he, as Senator Obama, refused to push for, on the clear grounds of "electability".

    Good observations!


    He is... (none / 0) (#15)
    by MileHi Hawkeye on Thu Jul 03, 2008 at 10:00:10 AM EST
    ...partially to blame, but not exclusively.  How do I get the people I helped elect to listen?  How can I get Udall and Salazar to fight for what's right and not what is politically expedient?

    I know a way.... (5.00 / 0) (#70)
    by kdog on Thu Jul 03, 2008 at 12:21:26 PM EST
    but we'd both end up in the same cell block.

    Embarassed to say I don't care that much, know what I mean bro?  I'm sure I'll be able to carve out a relatively free existince before I croak...apologies to the generations to follow for the sad state we'll be leaving Lady Liberty in.


    Hating the spin: 'Centrist' Obi stands up to Left (none / 0) (#69)
    by Ellie on Thu Jul 03, 2008 at 12:20:13 PM EST
    It's the #$&(( fourth amendment of the #(*$& Constitution.

    Cheetoh gets a mention ...

    ]...] Democratic blogs are flaying Obama's plan to vote for the wiretapping bill, said Markos Moulitsas Zuniga, founder of a leading liberal blog, Daily Kos. He's withholding a planned donation to Obama as a result. [...]

    Obama, rated last year as the most liberal senator by the non-partisan National Journal magazine, said he supports the domestic wiretapping bill because it is "that, while far from perfect, is a marked improvement" over a previous version. His aides insist Obama is not tempering his positions.

    "Over the course of his career, Barack Obama has made decisions not on party or politics, but on what he thinks is best for America," spokesman Hari Sevugan says. [...] (Obama faces online backlash for centrist views [USA Today] By Jae C. Hong, AP, Jul 04 / 2008)

    what ... What ... WHAT has Obama freakin donehj over the course of his career? Where's his Iraq speech? His Law Review articles on the freakin Constitution? His activism? Something more than fund raising, cribbed speeches and bland press releases after the fact on his web pages?

    [...] Some political strategists, however, note Obama is making a calculated shift to win over voters in a country where neither major party claims a majority.

    "His supporters should understand this," said Emory University political scientist Merle Black. "He needs to reach out."

    Democratic pollster Celinda Lake doesn't think there's any political risk for Obama. "The progressive voters really dislike John McCain," she said. "That should keep them on board." [...] (cf)

    The Democratic Theme Song During This (5.00 / 1) (#83)
    by MO Blue on Thu Jul 03, 2008 at 01:34:37 PM EST
    election cycle.

    You have no where else to go, my friends. No where else to go. Don't mad and don't be sad. You have no where else to go.


    We do have somewhere else to go. (none / 0) (#95)
    by lizpolaris on Thu Jul 03, 2008 at 04:30:06 PM EST
    They just don't want you to consider it.  But we are.  A lot of us are.

    Why voters (none / 0) (#39)
    by flyerhawk on Thu Jul 03, 2008 at 10:53:24 AM EST
    begin to reward courage we will have a Congress that will take risky positions on matters.

    Um (5.00 / 2) (#46)
    by Steve M on Thu Jul 03, 2008 at 10:59:21 AM EST
    How are voters supposed to reward courage, if Congress won't show any courage until voters prove they will reward it?

    Oversight (none / 0) (#93)
    by Warren Terrer on Thu Jul 03, 2008 at 03:39:00 PM EST
    is off the table.

    Unfortunately, I know people (5.00 / 3) (#5)
    by zfran on Thu Jul 03, 2008 at 09:20:10 AM EST
    who could care less about this issue. They feel that as long as they "aren't doing anything illegal" then who cares if the gov't listens. I find this appalling. Also, as the old joke goes, what's the difference between unlawful and illegal...unlawful is against the law, illegal is a sick bird (ugh)!

    Illeagle joke reminds me (none / 0) (#19)
    by oldpro on Thu Jul 03, 2008 at 10:24:04 AM EST
    of my favorite fireworks stand on the reservation on Highway 101 on Hood's Canal...

    "Ill Eagle Fireworks!"


    to quote my suegra, (5.00 / 1) (#6)
    by jeffinalabama on Thu Jul 03, 2008 at 09:22:23 AM EST
    congress..."no conoce la verguenza."

    it's better if you understand Spanish nuance, eh, BTD?

    it's not about FISA, it's about money (5.00 / 5) (#7)
    by Josey on Thu Jul 03, 2008 at 09:31:33 AM EST
    from the Telecoms that fund Congressional campaigns and sponsor the corporate media that promotes Obama and conceals damaging info about him.
    The Dems are happy to play along. After all, it's only a civil liberties issue.

    Meet the new boss...... (5.00 / 0) (#13)
    by Kefa on Thu Jul 03, 2008 at 09:52:05 AM EST
    same as the old boss.....

    An unchecked executive (5.00 / 3) (#14)
    by Lahdee on Thu Jul 03, 2008 at 09:55:09 AM EST
    doesn't seem as unpalatable now as it once did it seems. Trust us has seeped into the Democratic party and it's leadership. Why or why should I trust you when you demonstrate time and time again the the Constitution is nothing more than tissue paper? Bleh.

    Sorry about this (5.00 / 0) (#16)
    by Edgar08 on Thu Jul 03, 2008 at 10:05:09 AM EST
    but it does seem to me that dkos discreditted itself during the primary.  In its entirety.

    Long story short, messengers unaffiliated with dkos will "turn me on" to such issues moreso than those affiliated with dkos.  Those affiliated with dkos might actually push me to the other side of the issue.

    Sorry that's still a big hang up for me and while I'll eventually stop bringing it up here, its something I'll never forget.

    Please don't diss mcjoan, who (5.00 / 1) (#18)
    by oculus on Thu Jul 03, 2008 at 10:21:53 AM EST
    has been a figurative John the Baptist on FISA.  

    the situation (none / 0) (#21)
    by Edgar08 on Thu Jul 03, 2008 at 10:25:53 AM EST
    is regrettable and unfortunate.

    Painting with a broad brush (5.00 / 2) (#67)
    by Demi Moaned on Thu Jul 03, 2008 at 12:12:02 PM EST
    I agree that many people at DailyKos did disgrace themselves during the primary season.

    OTOH, some of the bloggers there stuck closely to areas where they had both expertise and knowledge. Foremost among them, IMO, is mcjoan.


    Even during the primary (none / 0) (#23)
    by Faust on Thu Jul 03, 2008 at 10:34:13 AM EST
    there was still plenty of good stuff on Dkos. It's a big site. lots to read there.

    It did get very monolithic there for a while, but it's getting better again post primary.


    tucc (5.00 / 1) (#33)
    by Edgar08 on Thu Jul 03, 2008 at 10:47:16 AM EST
    does some great work in the community too.

    But what they say "amen" to makes me want to turn to other outlets for likeminded community involvement.


    So you favor FISA passing (none / 0) (#27)
    by Lahdee on Thu Jul 03, 2008 at 10:37:00 AM EST
    as is because
    Those affiliated with dkos might actually push me to the other side of the issue.
    I hope that's not really true and that you'll get over the disdain you feel for dKos now. After all you do make salient points here, why not there eventually?

    Oh and, dKos may be a lot of things but it does have mcjoan and that's a saving grace for some of us.


    not in favor (none / 0) (#29)
    by Edgar08 on Thu Jul 03, 2008 at 10:43:50 AM EST
    I'm talking about how far I think people should go to stop it.

    Which is the issue as far as it stands for pelosi, obama, et al.

    Who will probably vote against it but just wontt do enough to stop it.


    Pelosi gave a stirring speech on (none / 0) (#35)
    by oculus on Thu Jul 03, 2008 at 10:50:04 AM EST
    the floor of the House of Representatives in favor of the current bill.

    obama will vote against it (none / 0) (#42)
    by Edgar08 on Thu Jul 03, 2008 at 10:55:44 AM EST
    but against a filibuster.

    And from obama and pelosis perspective the issue will be considered successfully navigated.


    And you feel it's necessary (5.00 / 1) (#28)
    by Lahdee on Thu Jul 03, 2008 at 10:42:06 AM EST
    to disrespect mcjoan why exactly?
    McJoan is hardly ever right and is just an off the hook attack dog who rails against the machine which is why she is at dkos and not a more respectable blog.

    Who are you to come to us with this garbage?

    Talex is very respectful (5.00 / 1) (#32)
    by Faust on Thu Jul 03, 2008 at 10:45:18 AM EST
    and respectable, and only visits respectable blogs.

    talex has been recharged (5.00 / 2) (#40)
    by andgarden on Thu Jul 03, 2008 at 10:54:20 AM EST
    and is back to original form.

    Not quite the right word. Maybe (none / 0) (#72)
    by oculus on Thu Jul 03, 2008 at 12:28:28 PM EST

    Here's the problem, as I see it (5.00 / 2) (#37)
    by Anne on Thu Jul 03, 2008 at 10:53:05 AM EST
    (now let's see if I can articulate it!): we have an executive who is determined to accumulate and assert power, defy the law and maintain an unprecedented level of secrecy in order to continue to violate the law.  We have a Congress which seems incapable of reining in that power and legislating in a way that preserves the balance of power or holds the executive accountable for illegal acts.  We have a judiciary branch that, in part, has aided and abetted the executive, and in part, has made repeated rulings that rebuke the executive, and the Congress just shrugs, and goes right back to writing and passing bad legislation that allows the activity.

    It's insanity.  Kabuki theatre.  Absurd to the nth degree.

    Know what could end all of that?  Leadership grounded in principle and courage.  It is not enough that there are principled and courageous voices among the rank-and-file; the leadership has to come from the leaders - Pelosi and Reid.  And at this time, with Obama now the alleged "leader" of the party, he has had an opportunity to lead the leadership on this, and rally the Democratic Congress to do what is right and principled, but unless "leadership" is now defined as rolling over to have your belly rubbed, he has failed a crucial test.

    I know most people do not care about these things, but if they want to know how Obama will govern and what kind of "leader" he will be, they ought to consider this an object lesson.

    Agreed ; the irony is that the Dems' stance (none / 0) (#75)
    by BackFromOhio on Thu Jul 03, 2008 at 12:45:02 PM EST
    is helping neither the party nor Obama.  Today's Gallup poll shows gap between Obama & McCain narrowing to 46-44.  Pundits on Morning Joe today were talking about how this represents a statistical dead heat and is a warning sign for Obama.  Then Ariana has a piece up urging Obama to reconsider his recent moves to the "center" because, inter alia, they are bad for his GE prospects.

    Go figure...


    The problem with Congress (1.00 / 1) (#20)
    by flyerhawk on Thu Jul 03, 2008 at 10:24:32 AM EST
    in general is that it is spineless and has been been for decades, if not longer.  The Presidential pulpit is so much more powerful that they are terrified of going against it, particularly on issues of national security

    Obama the Senator is no different than anyone else.  Obama the presumptive nominee may have more power but until November he still needs to be wary of national security controversies.

    What is the point in drafting legislation that will be vetoed?  

    Taking a stand on principle? (5.00 / 0) (#22)
    by gyrfalcon on Thu Jul 03, 2008 at 10:32:04 AM EST
    You believe that has no value whatsoever?  I disagree.

    Interesting (5.00 / 0) (#25)
    by Steve M on Thu Jul 03, 2008 at 10:35:36 AM EST
    I don't remember the Republican Congress being afraid to go up against the power of the Presidential pulpit.  It seems this decades-long malady only afflicts one of the parties.

    And yet (none / 0) (#34)
    by flyerhawk on Thu Jul 03, 2008 at 10:49:49 AM EST
    Republicans view the era of Republican controlled Congress to be ineffectual and mostly useless, other than a brief period between 1995 and the shut down of the Federal government.

    Being the ruling party in Congress does not mean you get whatever you want especially when the White House is controlled by the other Party.  


    Okay (5.00 / 0) (#43)
    by Steve M on Thu Jul 03, 2008 at 10:57:07 AM EST
    So is it your position that the Republican Congress from 1994-2000 was, in fact, afraid to oppose President Clinton?  Your answer makes it sound like you're trying to shift the goalposts to the question of whether Republicans are disappointed in what they got from that Congress.

    Frankly, I think it's indisputable that the Republicans were less afraid of the "Presidential pulpit" during the 1993-94 session, when they were in the MINORITY, than the Democratic Congress is afraid to confront Bush today.


    Well sure (none / 0) (#45)
    by flyerhawk on Thu Jul 03, 2008 at 10:58:42 AM EST
    I would agree with that.  Different times in that regards.  9/11 gave Bush a big ol stick he could beat the Democrats with at any time.  The 90s Republicans didn't have to worry about that.

    Okay (5.00 / 0) (#47)
    by Steve M on Thu Jul 03, 2008 at 11:03:55 AM EST
    But that's why I disagreed with your original point that Congress has been afraid to take on the Presidential pulpit for "decades."

    I understand that Democrats were in a bit of a shell because of 9/11, not to mention the results of the 2002 and 2004 elections, but it seems to me that it's high time they snapped out of it.  Bush has historically low approval ratings and it's difficult to remember the last time he successfully convinced the public of anything at all.  So why are the Democrats so terrified of giving Bush an excuse to badmouth them?

    Is it not even plausible that the public, which dislikes Bush by substantial margins, is looking for a Congress that will oppose the Bush agenda?  The Democratic Congress isn't managing to get more than the tiniest sliver of approval from Republicans OR Democrats.  Clearly they can do better.


    I agree with you (3.00 / 0) (#50)
    by flyerhawk on Thu Jul 03, 2008 at 11:12:37 AM EST
    I suspect that the Democratic leadership is trying to avoid a fight before the election.  Why rock the boat when you have such a clear advantage?  

    That may be a bad strategy but I understand why they are doing it.


    Again, showing the dems have (5.00 / 0) (#54)
    by zfran on Thu Jul 03, 2008 at 11:19:25 AM EST
    no courage. Excuses were used before it was election season, and what will the excuses be after the election season?!

    Politicians... (none / 0) (#56)
    by MileHi Hawkeye on Thu Jul 03, 2008 at 11:23:18 AM EST
    ...don't have an after election season.  They are already working on getting re-elected the minute they get elected.  

    Flyerhawk (5.00 / 1) (#57)
    by shoephone on Thu Jul 03, 2008 at 11:24:05 AM EST
    Which voters do you think are being brought into the Democratic fold with the passage of this FISA bill? I'm not seeing it. What I'm seeing is outrage from the Democratic base, libertarians and independents who view the FISA capitulation as a serious betrayal.

    The very notion that we should support the wholesale infringement of our fourth amendment rights for some illusory promise that Obama will win the WH and fix it all later is, to me, noxious and unacceptable.

    They all take the oath to uphold the constitution. It's when they betray that oath that they become un-American.


    Yes (none / 0) (#55)
    by Steve M on Thu Jul 03, 2008 at 11:22:54 AM EST
    That was their strategy in 2006 as well.  I remember folks like Robert Menendez and Sherrod Brown casting absolutely craven votes, like supporting the Military Commissions Act, because they didn't want to mess anything up.  Obviously I'm pragmatic enough to understand that.

    The problem is that every other year is an election year, and that 2007 wasn't exactly a stellar year for Democratic courage despite being an off year.  Yes, the voters are still angry enough with Republicans to reward the Democrats for doing nothing but playing it safe, but how long will that free ride last?

    This much I know.  In 2006 - despite all the Democratic efforts to roll over for Bush and take national security off the table - the Republicans still ran a full-blown fearmongering "Democrats want terrorists to kill your children" campaign.  And it couldn't have turned out any worse than them.  So while I'm sure we agree on the actual Democratic thought process right now, the question I'd like to put to them is this: why the heck are you so worried?  Clearly it's not 2002 any more.


    And I agree with you on this completely (none / 0) (#82)
    by flyerhawk on Thu Jul 03, 2008 at 01:23:59 PM EST
    I think the Democrats are playing things too defensively.  They have an opportunity to change the tone right now but they are more concerned about not screwing up.

    However I DON'T think that THIS FISA bill is the fight worth fighting.

    Retroactive immunity is simply not worth the fight.  Let's assume that that it was removed from the bill.  What exactly would suing the telecoms actually achieve?  Best case?  Some fines?  Great.  Whoopee!  Doesn't change a thing.  And the government would almost CERTAINLY restrict anything damaging information from being released by labeling it classified and since these are civil suits there would be almost no chance of getting the information declassified.

    So the FISA fight is a purely symbolic fight.  The Dems realize this and have chosen to pick a different fight, or at the very least not engage in this one.  

    Let me make myself clear.  I am results driven person.  I care about the end result, not the process and not the score.   I don't much care about punishing the Bush Administration.  What's done is done.  I care about moving forward.


    "Symbolic fight"? (none / 0) (#87)
    by shoephone on Thu Jul 03, 2008 at 03:12:29 PM EST
    Wow. Protecting our constitutional rights is merely symbolic.

    Who knew?

    With all due respect, Flyerhawk, I think that's a crock. If the constitution isn't worth fighting for, what is? Name one thing that is more important to America than the strength and protection of its constitution.

    As already stated, this FISA bill is terrible, with or without the telecom immunity provision.


    Protecting our rights (none / 0) (#88)
    by shoephone on Thu Jul 03, 2008 at 03:14:29 PM EST
    That's just so 1776.

    Happy Fourth of July.


    I am speaking specifically (none / 0) (#97)
    by flyerhawk on Thu Jul 03, 2008 at 06:30:18 PM EST
    about the telecom immunity provision and that does not, in any way, harm our Constitutional rights.

    If there are other aspects to the bill you find loathsome feel free to point them out.


    you say (5.00 / 1) (#26)
    by frankly0 on Thu Jul 03, 2008 at 10:35:40 AM EST
    What is the point in drafting legislation that will be vetoed?  

    Perhaps to show that your Presidency would have a real point beyond the satisfaction of your own ambitions?

    People run on platforms so that they can have a mandate when they win.

    What will Obama's mandate be?

    Um, Change. Basically undefined. Not exactly something he can use to twist the arms of Congress to pass concrete items of legislation, is it? Especially when those items might themselves require something resembling courage to put into law.

    Of course, who cares about policy when we've got a splendid fellow like Obama as President? Can't we just congratulate ourselves on that and be done with it?


    Yes Yes I know (1.00 / 0) (#36)
    by flyerhawk on Thu Jul 03, 2008 at 10:51:20 AM EST
    Obama is the scourge of Liberalism and all the wrong things that happen in Washington are his fault.

    It is utterly pointless to discuss Obama with you and the rest of the Obamaphobes.  


    and vice versa (5.00 / 1) (#76)
    by Big Tent Democrat on Thu Jul 03, 2008 at 12:51:23 PM EST
    You really see yourself as reasonable? You just argued that Obama should not stand up to Bush for ELECTORAL REASONS!

    One of the most incredible statements yet made.

    you have simply lost all credibility when it comes to discussing Obama.


    No actually I didn't (none / 0) (#80)
    by flyerhawk on Thu Jul 03, 2008 at 01:16:16 PM EST
    I maintain the EXACT SAME POSITION that I have always maintained regarding FISA.

    You guys seem to want to blame Obama for the actions of 534 other people.  You expect him to whip them into shape, be a leader, set an example.  Yadda yadda yadda.

    How?  What is the leverage that Obama has one anyone in the Democratic Party.  As it stands he is the Democratic nominee based on the whim of the Democratic leaders.  Until he becomes President he offers very little.

    The fact that you wish to attack me but let countless mindless screeds against Obama go unchallenged here, is a indictment of yourself, not me.


    You do (none / 0) (#91)
    by Big Tent Democrat on Thu Jul 03, 2008 at 03:28:20 PM EST
    Obama did not.

    This is true (none / 0) (#96)
    by flyerhawk on Thu Jul 03, 2008 at 06:29:04 PM EST
    but I don't care about politician's being inconsistent about unimportant issues.  This issue is unimportant to me.

    Perhaps he will have a mandate (none / 0) (#84)
    by MO Blue on Thu Jul 03, 2008 at 01:44:10 PM EST
    to create a new cabinet position. Security of Faith. That would really, really excite me. And I will really, really love having more of my money going to churches especially those who preach against people and issues that I value.

    How much to you want to bet that those churches will have my taxpayer money in their coffers years before health care is provided to everyone who needs it?


    So what if it's vetoed? (5.00 / 1) (#38)
    by shoephone on Thu Jul 03, 2008 at 10:53:23 AM EST
    The original FISA law will not expire. The president still gets to do his spying as long as he gets the court warrant. And he'll still have the 72-hour free pass before having to get that warrant. This new bill was supposed to be all about fixing the "Protect America Act". It's not about extending FISA. As Greenwald and Feingold and McJoan and others have noted, the whole bill is terrible. Telecom immunity is the least of it.

    Devise a good bill and make Bush veto it.

    Democrats have done a lousy job of framing the message on this one.


    So you think (none / 0) (#41)
    by flyerhawk on Thu Jul 03, 2008 at 10:55:20 AM EST
    now is the time to fight the White House?  4 months before the Presidential election, Congress should pass bills that Bush will veto and point to as being anti-American?  

    Bush has been painting the Dems (5.00 / 1) (#48)
    by shoephone on Thu Jul 03, 2008 at 11:04:51 AM EST
    as "un-American" ever since 9/11.

    And please, tell me what's wrong with opposing a president who's approval rating is hovering between toilet and sewer at 23%?

    The FISA bill is terrible and there is no way around that. I care about my constitutional rights a h*ll of a lot more than I care about placating Bush or the Blue Dogs.


    Okay - so if not now, when? (5.00 / 2) (#49)
    by Anne on Thu Jul 03, 2008 at 11:05:37 AM EST
    Do we sit on our hands while this lousy bill passes and is signed into law, and then wait and fight it out with a President McCain, and hope and pray we have a veto-proof majority which can undo it - except for the immunity part, because once you grant it there are no take-backs?

    Or do we sit on our hands while this lousy bill passes and is signed into law, and then wait and hope that a President Obama will have changed his position yet again and this time will fight to undo everything but the immunity which cannot be undone?  Do you have that much faith that the shape and mettle of Congress will be such that it would be possible?

    Seems like you are cowering in the face of whatever the GOP will throw at the Dems before the election, but what good is winning the election if we had to sell another piece of our constitutional rights and privileges in order to do it?


    When? (2.00 / 0) (#51)
    by flyerhawk on Thu Jul 03, 2008 at 11:13:21 AM EST
    How about January 20th 2009?

    And what is your plan, (5.00 / 0) (#52)
    by Anne on Thu Jul 03, 2008 at 11:16:39 AM EST
    and what is your argument going to be, if it is McCain who takes the oath on that date?

    Oh, I know - you will be looking for once-again Senator Obama to lead the charge, right?

    Good luck with that.


    Perhaps you are beginning to understand (none / 0) (#53)
    by flyerhawk on Thu Jul 03, 2008 at 11:17:52 AM EST
    why it is so important to make sure that Obama wins in November?  

    Actually, I don't understand why (5.00 / 1) (#59)
    by Anne on Thu Jul 03, 2008 at 11:26:01 AM EST
    that is so important, or why you would allow Obama to cower on this now, to give in on important issues, or why you would assume that the candidate who can't hold a position with any consistency can be relied on to undo this mess once he's president.

    Because (none / 0) (#78)
    by flyerhawk on Thu Jul 03, 2008 at 01:10:26 PM EST
    I'm not looking for reasons to blast Obama nor do I expect the PRESUMPTIVE nominee for the Democratic Party to be able to whip the Party into shape.

    Right now Obama needs the Democratic Party far more than they need him.  When he becomes President that will change.

    If you want to blame Obama for FISA, have a grand time.  I personally think that is pointless and coutnerproductive but that hasn't stopped anyone here from blasting him for waking up in the morning.


    Mayhap I'm a little dense (5.00 / 0) (#60)
    by mikeyleigh on Thu Jul 03, 2008 at 11:26:08 AM EST
    so could you please explain to me just what the heck you think a President Obama will do regarding FISA?

    Believe it or not (none / 0) (#79)
    by flyerhawk on Thu Jul 03, 2008 at 01:11:25 PM EST
    I really don't much care about giving telecoms retroactive immunity on civil lawsuits.  Then again I tend to be a look forward kinda guy.

    The Day they start working on the (5.00 / 2) (#65)
    by BarnBabe on Thu Jul 03, 2008 at 11:41:10 AM EST
    2010 elections? People expected big things from the 06 election. The first thing they did was take impeachment off the table. Why, because his term was almost up and it would rock the boat for the next election. There is always a next election around the corner. This Congress could have just kept sending bills out and the Senate or President rejecting them but at least we could point out that it is the GOP's fault.

    Explain that to me please (5.00 / 1) (#68)
    by MO Blue on Thu Jul 03, 2008 at 12:20:00 PM EST
    How in January 2009 is Obama going to take away the telecom immunity that was granted in July 2008?

    How about November 08, 2006? (none / 0) (#92)
    by Edger on Thu Jul 03, 2008 at 03:35:01 PM EST
    But, but, but... I'm sure you'll think of something.

    On FISA. Yes I Do (5.00 / 1) (#85)
    by MO Blue on Thu Jul 03, 2008 at 01:46:50 PM EST
    They have an obligation to protect my 4th. amendment rights. In fact, they all took an oath to exactly that.

    this post was edited for clarity (none / 0) (#3)
    by Big Tent Democrat on Thu Jul 03, 2008 at 09:17:28 AM EST
    of citations and for general clarity.

    You need to shape oup on the insults Talex (none / 0) (#10)
    by Big Tent Democrat on Thu Jul 03, 2008 at 09:37:47 AM EST
    I will not respond to you but I do not want any more insults from you.

    This time I will suspend you from my threads if you keep it up.

    My last response to you in this thread.

    If you find your comments disappearing, you will know why.

    I deleted Talex's comment (5.00 / 2) (#61)
    by Jeralyn on Thu Jul 03, 2008 at 11:31:50 AM EST
    which contained a personal insult to McJoan who is a good friend of TalkLeft's, Armando's and mine.

    Talex is warned. Another personal insult to anyone will result in banning.


    BTD - why wait (1.00 / 1) (#12)
    by scribe on Thu Jul 03, 2008 at 09:46:03 AM EST
    this commenter has a history - it seems every time I read a comment that can rightly be characterized as trolling - well....

    One should troll for walleye and togue - not commentary.


    I didn't insult you (none / 0) (#24)
    by talex on Thu Jul 03, 2008 at 10:35:00 AM EST
    I just brought up that I didn't agree with mcjoans and your take on how this would embarrass the Dems.  

    I gave ample explanation for why I didn't think it would embarrass them. If you disagree with my explanation then you can say why.

    Many people here have different views and to read this thread I am not the only one who doesn't see it exactly like mcjoan, who you happened to agree with.

    To disagree with someone on a blog is not an insult. I didn't use language that some do here like name calling and degrading them. If disagreeing with someone on this blog was an insult then you would be insulting people daily wouldn't you because you disagree with other posters often. But when you do disagree it is not an insult because that is what blogs are all about - agreement, disagreement, and different takes on issues. Other people disagree with you all the time. Normally you don't call them out. But sometimes when you do it isn't always exemplary.

    As for mcjoan that is how I see her. My comments about her are no different than how you would comment on, for example Matt Stoller or Chris bowers and other here - as I have and as other posters have.

    Don't forget this is a blog and as long as people keep from name calling and profanity and keep to expressing their opinions then I think that is keeping with the accepted and established purpose of this blog and many others.


    you are misrepresenting what you wrote (5.00 / 1) (#63)
    by Jeralyn on Thu Jul 03, 2008 at 11:33:17 AM EST
    you did engage in personal insults to her, and name-calling. I saved the comment.

    OK (none / 0) (#71)
    by talex on Thu Jul 03, 2008 at 12:24:57 PM EST
    With due respect, I can't really see how calling mcjoan what I did is any different than what I see written on your front pages by other front pagers about other bloggers is any different. Other than of course I didn't repeatedly use the word 'idiot'. Or for that matter that word and others being used as of late to describe other posters here including myself.

    Examples are set as to what is acceptable by your  by your front pagers on the front page and in the comment section by them. As such I don't see how '...attack dog..." is an insult in comparison to what I see written where words much more volatile than 'attack dog' (which is a common word used in politics) are used by some of the example setting front pagers. Just saying, you know.


    My apologies (none / 0) (#74)
    by talex on Thu Jul 03, 2008 at 12:37:02 PM EST
    Just saw your post above where you mention mjoan is a personal friend. How am I or anyone else supposed to know who is a personal friend of yours?

    Kos is a personal friend of yours if I recall and Armando insults or degrades him often. Same with the boys from OpenLeft and other bloggers from other blogs, they are insulted often. Like I said above the tone is set as to what is acceptable by what you allow on your front pages. That is all I or any other poster here has to go on.

    Not to be a smartass Jeralyn, but we can't mind read. If you allow front pagers to degrade other bloggers then in fact they are inviting others to also degrade them in that specific thread, which other posters do, and in other theads. Again, just saying


    Heh, (none / 0) (#30)
    by Faust on Thu Jul 03, 2008 at 10:44:13 AM EST
    I want a list of these respectable blogs. Could you give me the top five respectable blogs as well as the metrics used to determine their respectability?

    One little problem (none / 0) (#44)
    by flyerhawk on Thu Jul 03, 2008 at 10:57:09 AM EST
    This has always been about the concern of appearing strong on national security and not being hammered by the GOP, and it has been about protecting the telecoms from prosecution.

    This bill doesn't protect the telecoms from prosecution.

    new FISA & real liberals & Democrats (none / 0) (#58)
    by wurman on Thu Jul 03, 2008 at 11:24:13 AM EST
    I've posted comments about the Gang of 4, The Gang of 8, the Group of 12, & the Informed 16 members of congress who are privvy to various levels of national intelligence methods, data, operations, & results.  It interests me a great deal that Sen. Durbin, Sen. Reid, & Speaker Pelosi support this new legislation.

    It appears that all of the representatives & senators who have been briefed on the issues about the FISA overhaul vigorously support the legislation.  It seems that pointing out Rep. Hoyer & Sen. Rockefeller as "cave-in" dems can work to a certain point.  Looking at other members, however, doesn't work with that type analysis.  There are reasonable people who support this legislation because something in the process seems to make sense to them & seems to be needed by the intelligence community.

    A 2-part summary by David Kris at the Balkinization website sorts out the legislative "realities" of the House & Senate versions of the bills.
    Part 1, here (link)
    Part 2, here (link)

    It appears as if some members of congress who I normally respect, some senior FISA judges who are perceived as straight-shooters on requiring warrants, & some congressional staff lawyers who are mostly perceived as careful reviewers of proposed legislation have all decided that this new FISA is a good idea.

    I have a knee-jerk reaction to the TelCo immunity, but have to doubt my own opinions when so many "regular," apparently "trustworthy" folks seem to accept the idea.  Are their actions OK?  How could I know or even discover the facts?  Are my opinions wrong & theirs correct?

    And I have a knee-jerk reaction (5.00 / 2) (#62)
    by shoephone on Thu Jul 03, 2008 at 11:32:37 AM EST
    to fear-mongerers.

    Go read Greenwald. He's been quite clear on what's so terrible about the FISA bill, and it ain't just telecom immunity.

    Gawd, this is getting tiresome.


    Just read an acre of Greenwald prose (none / 0) (#86)
    by wurman on Thu Jul 03, 2008 at 02:46:36 PM EST
    He has nothing written on the bill, itself.  In one post, update 246.7, he refers his readers to Rep. Hoyer's website to read the text of the bill.

    The David Kris postings that I cite have key text elements quoted or referenced & discussed.  Kris doesn't take much of a stand and only points out the reasons for the intelligence agencies seeking the changes in the law.  I don't actually know enough about search & seizure & surveillance law to even comprehend the differences.

    There may be useful arguments against the new FISA bill that the House passed.  Greenwald does not make them.  And his boring feud with Olbermann is of no interest to me & of no merit on the discussion of the wiretap law.  His fund raising for his ads is equally foolish, to me.  And Greenwald's desire to target Democratic representatives who voted for the FISA bill are meaningless, to me.

    All of Greenwald's "stuff" may be vitally important to some readers.  His appearance on Rachel Maddow's radio program may have some marvelous effect on some people.  For me, he hasn't produced a single sentence of any use to a discussion of the law or its effects.


    Heh (none / 0) (#90)
    by Big Tent Democrat on Thu Jul 03, 2008 at 03:27:23 PM EST
    Well, what do you think of Russ Feingold?

    BTD, you took the words (none / 0) (#94)
    by shoephone on Thu Jul 03, 2008 at 03:39:05 PM EST
    right out of my mouth. Well, keyboard.

    Sen. Feingold is a good guy. (none / 0) (#98)
    by wurman on Thu Jul 03, 2008 at 10:58:15 PM EST
    I read his June 25 remarks.  On immunity he triggered my expected lefty knee jerk reaction.  He posed nothing new.

    He made only his argument, not the entire range of discussion, which is fair enough.  Sen. Feingold points out that the Telcoes have many high priced lawyers who know the rule about surveillance & they know/knew that a court order was required.

    I agree.  So why did they go along?  What caused AT&T, Verizon & another one (not Qwest) to take the actions they did?  What influenced those teams of skilled lawyers with experience in those issues to counsel the execs to do the "illegal" deeds?

    Apparently, some reasonable legislators (& some rightwingnutz too) want to make certain the Telco operations are not subject to civil suits.

    I know, teacher, I know this one.  Because the court proceedings in the civil suits would give away the methods & operations of the surveillance, and for some reason Pelosi, Reid, Hoyer, Rockefeller & some others don't want that to happen.

    On the Title I stuff, Sen. Feingold offers some comments.  They don't seem to be arguments.  The reason is obvious: as he states, about 70 total senators don't have the information & background to even define the terms, much less make the argument.  So the statements are generic & don't deal very much with even basic rules of search & seizure & surveillance.

    The David Kris articles do deal with some of the actual "settled" law about surveillance & why the intelligence agencies want the changes.  One of the Feingold points is about intercepting millions or billions of communications without any warrants.  The new FISA requires a general warrant to intercept the messages &, through a process called "minimization," sort out the ones that interest the agency(ies) & then get the 72-hour-later name specific warrant(s).  Kris compares this to cops watching people walk into a building & only taking up surveillance on the "bad" guys, which is common & legal.  All others slip on through, even though they were looked at temporarily.

    Feingold finesses that point by simpling "dismissing" minimization as if it's a meaningless distinction.  I dont' know that, nor do I know if Kris's version is OK either; but, it's an actual argument with statements, support, & examples.

    Finally, the Kris articles emphasize "switches," a concept that also got into the lame stream media.  Lots of the world's communications switch through locations in the USA.  The intelligence agencies want to "data mine" that traffic.  And this is the "new technologies" are now available line of discussion about the need to change the old FISA rules.

    Feingold said nothing.

    Kris describes it as a key element in the new FISA bill & uses an analogy about getting a warrant for an "apartment" to find a murder weapon--the police don't want the judge to specify that they can only look in the dresser drawers.  The warrant covers the whole apartment.

    Does that warrant above cover the whole complex?  Well, apparently, maybe if the suspect runs toward his buddies' apartment down the hall as the search process begins.

    I can see & comprehend Sen. Feingold's line of reasoning, partly because I'm inclined to think that way & knee jerk respond to wiretaps.  However, his comments don't make much of an argument.

    And it's important to note that David Kris is not making an argument one way or the other; he is describing the nature of the key elements of House Bill 6304 & why the intelligence agencies may want it passed.

    Sorry for the length here, but you asked & you sent me to the Feingold statement.


    Hmm (none / 0) (#99)
    by Steve M on Thu Jul 03, 2008 at 11:32:36 PM EST
    I will tell you why the telecom lawyers counseled their clients to cooperate with the Bush Administration.  The answer is, it is exceedingly unlikely that they did so.  This decision was made by businesspeople, not lawyers, and any competent lawyer would have advised them that they would be breaking the law and trusting in the Bush Administration to look out for them.

    It's Sen. Feingold's "read," not mine (none / 0) (#101)
    by wurman on Fri Jul 04, 2008 at 06:46:37 AM EST
    Sen. Feingold remarks, transcript (link)
    The telephone companies and the government have been operating under this simple framework for 30 years. The companies have experienced, highly trained, and highly compensated lawyers who know this law inside and out.

    In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration's warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that doesn't hold water.

    My opinion (which has as much validity as a page from the phone book): Bu$hInc went to the Telcoes with some forms of documentation that snookered the lawyers & the execs. Four options:

    1. Old FISA had some provisions for the AttyGen to "certify" some wiretaps without getting a warrant--known badguy Ahmed (on the list) talking to unknown US citizen, except all the Ahmeds are actually John Doe strawmen
    2. A now-known-to-be bogus warrant signed only by a single "senior FISA judge" (this term appears in some of the lame stream media) rather than the entire court or a majority of it
    3. A sweeping, generic warrant issued by a "secret" grand jury convened by the Justice Dept under the pretext of investigating known badguys (on the list)
    4. A Presidential Finding with all the proper agency approvals, which gave the appearances of an emergency--OK under parts of the old FISA

    Diane Feinstein's response to (none / 0) (#77)
    by oculus on Thu Jul 03, 2008 at 01:03:19 PM EST
    constituents urging her to vote against this bill [loosely paraphrased]:  I know something you don't know.  (But, if I told you I'd have to kill you.)  

    Cynic that I have become, I think this (none / 0) (#81)
    by Anne on Thu Jul 03, 2008 at 01:20:05 PM EST
    is a lot less about the national security secrets they know and can't tell us for our own safety, and more about their complicity in illegal acts and the carte blanche they gave Bush that threatens to sink them if they don't protect him - think of it as a Mutually Assured Destruction pact.

    Beyond the Constitution: the rule of law (none / 0) (#100)
    by bluejane on Fri Jul 04, 2008 at 04:36:58 AM EST
    Flyerhawk said: I am speaking specifically about the telecom immunity provision and that does not, in any way, harm our Constitutional rights.

    I understand the point you're generally making, Flyerhawk, that you believe it's not worth fighting for a matter of principle in this case -- and don't agree. Here's why: The telco immunity provision is not about specific Constitutional rights (although secondarily the 4th amendment) but the fundamental ground of the rule of law itself. The WH in conspiracy with telcos entered into a pact to break the law by running around FISA. IANAL but my sense is that law as a concept is solely a matter of principle. It is nothing else than principle. By granting immunity to 4 years of wanton lawbreaking we are promoting lawlessness at the highest levels. I think the "high levels" make a difference, too, because the president (and Congress in collusion as they allow immunity) are so visible and thus many people can see them and say to themselves, "Law doesn't matter."

    Another consequence of this transaction is that we are left with the impression that the president has, by his own interpretation, powers beyond the rule of law and is, in his own eyes, a king and this becomes quietly accepted on the basis solely of schoolyard fears instilled by the prospect of "another 9-11."

    Standing up against this FISA "reform" (along with immunity) would be a fabulous "teachable moment" for Obama to reverse this Bush-Cheney-Addington narrative and bring the power line right side up again (people have it, king doesn't) but (thus far) Obama appears to be letting this golden opportunity slide by.

    I can't guess his strategy but he's missing a moment in history to do "what is best for America" as he's so fond of saying, with little political risk for himself and a perfect chance to reverse field on the "soft on terror" meme. Any 6th grader could do it and now is the time to do it rather than let this paralyzing myth leak into the next administration. But (unless he changes his mind again after the 4th of July) he appears committed to a major error here not just on FISA but not seizing upon a new vision of national security that honors law as much as war and unilaterality.