Sherry Chandler

FISA: The ACLU will sue

From the ACLU:

WASHINGTON � Today, in a blatant assault upon civil liberties and the right to privacy, the Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance. The FISA Amendments Act of 2008 was approved by a vote of 69 to 28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president�s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times.

�Once again, Congress blinked and succumbed to the president�s fear-mongering. With today�s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,� said Anthony D. Romero, Executive Director of the American Civil Liberties Union. �This legislation will give the government unfettered and unchecked access to innocent Americans� international communications without a warrant. This is not only unconstitutional, but absolutely un-American.�

The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment�s protection against unreasonable search and seizure.

The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government�s general spying procedures are found insufficient or unconstitutional by the FISC. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime. A provision touted as a major �concession� by proponents of the bill calls for investigations by the inspectors general of four agencies overseeing spying activities. But members of Congress who do not sit on the Judiciary or Intelligence committees will not be guaranteed access to the agencies� reports.

The bill essentially grants absolute retroactive immunity to telecommunication companies that facilitated the president�s warrantless wiretapping program over the last seven years by ensuring the dismissal of court cases pending against those companies. The test for the companies� right to immunity is not whether the government certifications they acted on were actually legal � only whether they were issued. Because it is public knowledge that certifications were issued, all of the pending cases will be summarily dismissed. This means Americans may never learn the truth about what the companies and the government did with our private communications.

�With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,� said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. �This bill � soon to be law � is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.�

In advance of the president�s signature, the ACLU announced its plan to challenge the new law in court.

�This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,� said Jameel Jaffer, Director of the ACLU National Security Project. �The bill allows the warrantless and dragnet surveillance of Americans� international telephone and email communications. It plainly violates the Fourth Amendment.�

You can donate here.

And then there’s this from the Baltimore Sun:

With Congress on the verge of outlining new parameters for National Security Agency eavesdropping between suspicious foreigners and Americans, lawmakers are leaving largely untouched a host of government programs that critics say involves far more domestic surveillance than the wiretaps they sought to remedy.

These programs – most of them highly classified – are run by an alphabet soup of federal intelligence and law enforcement agencies. They sift, store and analyze the communications, spending habits and travel patterns of U.S. citizens, searching for suspicious activity.

The surveillance includes data-mining programs that allow the NSA and the FBI to sift through large databanks of e-mails, phone calls and other communications, not for selective information, but in search of suspicious patterns.

Other information, like routine bank transactions, is kept in databases similarly monitored by the Central Intelligence Agency.

“There’s virtually no branch of the U.S. government that isn’t in some way involved in monitoring or surveillance,” said Matthew Aid, an intelligence historian and fellow at the National Security Archives at The George Washington University. “We’re operating in a brave new world.”

…

“You don’t have to look far into history to know that when the government, any government, is given secret authorities, that those authorities are ultimately abused,” said Mike German, a former FBI agent who is now policy counsel for the American Civil Liberties Union. “You don’t even have to attribute bad motives to anyone. In an intelligence officer’s zeal to protect the country, they often will overstep their bounds.”

In part to assuage privacy concerns, the Department of Homeland Security has established a privacy czar to ensure that the technologies and programs initiated by the federal agency do not erode privacy laws or violate civil liberties.

Read the rest. Somehow I don’t have a lot of faith that our own little caesar for privacy will have much success.

Or, you could just read Lance, who sees what we’ve all been seeing for a while now, The bad guys are going to get away. The movie isn’t supposed to end like this:

They’re going to ride off into the sunset, their saddle bags stuffed with loot, whooping and hollering and laughing at the marshalls who can’t get their boots in their stirrups to get on their horses to ride after them. They’re going to live out their lives on the other side of the Rio, safe and fat and happy in their haciendas, surrounded by friends and fawning servants and beautiful senoritas with roses in their hair playing the guitar and singing ribald songs about limp-dicked Democrats.

George Bush probably doesn’t even know he’s loathed and despised and he probably won’t ever know. He’ll always be in the company of flatterers and sycophants who will assure him over and over again that he was a great President and he saved the country from the terrorists and children will be singing songs about him for the next three hundred years.

Dick Cheney and Karl Rove know they are hated by all decent people, but they think decent people are chumps and saps and to be hated by them is a sure sign of success.

Update: I received this e-mail from Chris Dodd, entitled “A Heavy Heart”:

Yesterday was a sad day for the United States Senate.

It is my hope that the courts will undo the damage done to the Constitution.

But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.

We came together � all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.

I’m sorry we weren’t successful.

I just hope I’m lucky enough to have you by my side in the next fight, whatever that may be.

Thanks for all you’ve done.

Chris Dodd

FISA: the plot thickens

From the NYTimes, Judge Rejects Bush�s View on Wiretaps

WASHINGTON � A federal judge in California said Wednesday that the wiretapping law established by Congress was the �exclusive� means for the president to eavesdrop on Americans, and he rejected the government�s claim that the president�s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001.

The Justice Department has tried for more than two years to kill the lawsuit, saying any surveillance of the charity or other entities was a �state secret� and citing the president�s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency�s program.

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

The implication of this ruling, it seems to me, is that Congress should not be falling all over itself to provide legal coverage for the Bush administration’s illegal activities. As the Times article concludes:

The ruling comes as the Senate is overhauling the foreign intelligence law. The measure would reaffirm FISA as the exclusive means for the president to order wiretaps through court warrants, but it would also provide legal immunity to phone companies involved in the eavesdropping program. A vote could come Tuesday.

The immunity issue would not directly affect this lawsuit because Al-Haramain is suing the government, not the phone companies. But the nearly 40 other lawsuits against phone companies that Judge Walker is overseeing would almost certainly have to be dismissed if immunity is signed into law, legal analysts say.

But there is more than just retroactive immunity at stake here. It is bad enough that we have to have a “secret court” but the government should not be allowed to spy on whomever it pleases with no oversight and no accountibility. That is absolute power and absolute power corrupts absolutely.

It isn’t as if all this illegal spying has gained us much. The Bush record on arrests, convictions, is pathetic, al Qaeda is still active, and Osama bin Laden is still at large.

By now you’ve no doubt heard that Obama supporters are making a concerted effort to change the Senator’s stand on this issue. Currently, as The Falcon’s Gyre points out:

Barack Obama has been moving to the right since the middle of June. He’s always advocated Social Security “reform,” and several times he has praised Ronald Reagan and the Republican Party as “the party of ideas,” but now he’s folded on FISA along with most of the so-called Democratic Congress.

That’s right. Barack Obama, right now at least, has no use for the Fourth Amendment. Furthermore, he’s basically promised to use his powers to spy on us without warrants only for good.

The Falcon provides a link where you can join this effort to get Obama to support the filibuster of the bill.

Added: More on this.

Chris Dodd is seeking signatures, too.

All I know is what I read in the papers

But I’ll start with Glenn Greenwald’s blog:

Chris Dodd went to the Senate floor last night to speak against the FISA bill and delivered one of the most compelling and inspired speeches by a prominent politician that I’ve heard in quite some time. He tied the core corruption of the FISA bill’s telecom amnesty and warranltess eavesdropping provisions into the whole litany of the Bush administration’s lawless and destructive behavior over the last seven years — from torture and rendition to the abuse of secrecy instruments and Guantanamo mock trials — with a focus on the way in which telecom amnesty further demolishes the rule of law among our political class.

That speech signals that the small minority in the Senate devoted to stopping this bill have made this a priority. Small, vocal, passionate minorities in the Senate — backed up by vocal, passionate and engaged citizens — can do much to prevent a bill’s quick and painless passage. Dodd’s speech can be seen and/or read here. I highly recommend it, and if I had one wish this week, it would be that any journalist who will ever write or utter the words “FISA,” “telecom immunity” or “Terrorism” would be forced to watch this speech from start to finish without distraction.

…

Beyond the FISA bill’s evisceration of the rule of law, the Fourth Amendment and surveillance safeguards, what has always been so striking with this controversy has been how transparently sleazy and corrupt it reveals the Congress to be. Right out in the open, telecoms have just led Congressional supporters of telecom immunity around like little puppets. It’s just amazing — though extremely common — that while negotiations over the bill occurred in total secrecy, with civil liberties groups and the public at large being completely excluded, Nancy Pelosi and Steny Hoyer “negotiated” directly with the telecoms over how the telecoms’ amnesty bill should be written.

Telecoms broke our surveillance laws, and then our Democratic Congressional leaders ran to them to take instructions on how to write the special law to protect them, and they didn’t even really bother to hide that.

White House Refused to Open Pollutants E-Mail :

The White House in December refused to accept the Environmental Protection Agency�s conclusion that greenhouse gases are pollutants that must be controlled, telling agency officials that an e-mail message containing the document would not be opened, senior E.P.A. officials said last week.

The document, which ended up in e-mail limbo, without official status, was the E.P.A.�s answer to a 2007 Supreme Court ruling that required it to determine whether greenhouse gases represent a danger to health or the environment, the officials said.

This week, more than six months later, the E.P.A. is set to respond to that order by releasing a watered-down version of the original proposal that offers no conclusion. Instead, the document reviews the legal and economic issues presented by declaring greenhouse gases a pollutant.

Over the past five days, the officials said, the White House successfully put pressure on the E.P.A. to eliminate large sections of the original analysis that supported regulation, including a finding that tough regulation of motor vehicle emissions could produce $500 billion to $2 trillion in economic benefits over the next 32 years

Ideology-Based Hiring at Justice Broke Laws, Investigation Finds

Senior Justice Department officials broke civil service laws by rejecting scores of young applicants who had links to Democrats or liberal organizations, according to a biting report issued yesterday.
…
Former Justice Department officials from both Democratic and Republican administrations said the study underscores the challenge for the next president.

“The Honors Program at DOJ has always been the ‘A-list,’ ” said Nicholas M. Gess, a Justice official under President Bill Clinton. “The next attorney general will be stuck with many from the ‘B-list.”

High Medicare Costs, Courtesy of Congress

On Wal-Mart�s Web site, you can buy a walker for $59.92. It is called the Carex Explorer, and it�s a typical walker: a few feet high, with four metal poles extending to the ground. The Explorer is one of the walkers covered by Medicare.

But Medicare and its beneficiaries aren�t paying $59.92 for the Explorer or any similar walker. In fact, they�re not paying anything close to it. They are paying about $110.

For years, Congress has set the price for walkers and various medical equipment, and it has consistently set them well above the market rate, effectively handing out a few hundred million dollars of corporate welfare every year to the equipment makers.

But as of July 1, this system is set to change. Companies will instead have to submit bids � to compete with one another, just as Wal-Mart competes with Target � if they want to continue selling products to Medicare. Based on a pilot program, the price of walkers, delivery and setup included, will fall to about $80.

Now, would you like to guess how the equipment makers feel about this?

Right.

With the changeover looming, they have increased their contributions to Congress. They have also started publicly claiming that competitive bidding will, among other things, deprive some patients of oxygen equipment they need.

Hillary Clinton returns to the Senate:

But as she returned in defeat to her old home in the Senate yesterday, she was received as if in triumph. And, in a sense, her stature had increased during the failed primary battle: She left as a legislator but returned as the leader of an 18 million-strong movement of women and working-class voters — a group whose support Clinton’s Democratic colleagues fervently desire.

And so, as Clinton entered a private luncheon in the Capitol, these colleagues greeted her with cheers, hugs and high-fives. “It’s great to be here among my colleagues,” Clinton teased, “just another regular, plain old superdelegate.”