FISA bill poised to pass Senate: The Swamp
 
The Swamp
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Posted February 12, 2008 2:18 PM
The Swamp

by James Oliphant

Sen. Russ Feingold is standing on the floor of the Senate right now and he isn't happy.

The Democrat from Wisconsin has had a rough day. The effort of Feingold and his allies to amend the Protect America Act has largely failed on a grand scale.

An amendment from Sen. Chris Dodd that would deny telecom companies retroactive immunity for helping the government eavesdrop on phone calls without a warrant after 9/11 was voted down. As was an amendment from Sen. Arlen Specter that would have substituted the government for the telecom companies in pending legislation over the warrantless wiretapping program. An amendment offered by Sen. Dianne Feinstein that would have made the Foreign Intelligence Surveillance Act the sole authority for a warrantless wiretapping program also failed.

The White House said today that the Senate bill is one that the president can support. That's a victory for President Bush and Senate Republicans, who are seeking to make expanded wiretapping powers under the Foreign Intelligence Surveillance Act permanent.

Feingold calls the current bill a "dangerous piece of legislation."

"This bill is a tragic retreat," Feingold said. "It is abdication of this body's duty to stand up for the rule of law."

The Senate is expected to have a final vote on the bill this afternoon. Then it goes to the House, which is battling the clock. That chamber will adjourn on Thursday and Friday for the funeral of Rep. Tom Lantos (D-Calif.)

The Protect America Act, which enhanced the government's wiretapping program under FISA, expires on Friday. The current legislation would replace it. The White House has said it would not support another exension.

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Comments

Congratulations Republicans!

You've just awarded the new Democratic President the power to spy on you starting on Jan 09, thankyou.


It makes me irate to think of the phone companies being let off the hook.


So they're still trying to protect us from those who are jealous of our freedoms by taking away more of our freedoms. Who's side are they on???? BE SURE TO THANK THE PNAC MEMBERS FOR THEIR "New Pearl Harbor" (1997) and their war of terror.


So why doesn't Obama just walk into the Senate chamber and use his vast rhetorical skills to rally the senators to the side of truth and justice and vote this bill down? He talks about changing Washington. So, since this bill is in the Senate, and he is a senator (and apparently the greatest who has ever lived, if many of his supporters are to be believed) why doesn't he do something? Or is there only so much that "Yes We Can" can do?


Big Business - 1
Civil Liberties - 0


NOT A PROFILE IN COURAGE

The Senate and House have been struggling against themselves during the past few months to craft a more permanent revision of Foreign Intelligence Surveillance Act (FISA) that corrects some of the damage they inflicted on FISA via the Protect America Act of 2007 (which would have expired effective February 1, 2008 if Congress had not approved a 15-day extension). The FISA revision which was approved by the Senate Intelligence Committee, and is close to approval by the full Senate, is an attempt by weak-willed Senate Democrats to demonstrate that the Republicans do not have a monopoly on contempt for the Constitution. In 2006 In response to widespread use of electronic surveillance without warrants (involving U.S. citizens and other legal U.S. residents in addition to foreign targets) under the Terrorist Surveillance Program, Congress passed legislation stipulating that FISA was the exclusive means by which electronic surveillance could be conducted. Now, the pending Senate legislation to amend FISA will not state that FISA is the exclusive means by which electronic surveillance may be conducted even though 57 Senators voted in favor of this amendment.

The Senate Intelligence Committee revision of FISA does little to improve on the Terrorist Surveillance Program and also grants retroactive immunity for telecommunications providers that assisted the Federal Government with the illegal Terrorist Surveillance Program, but the FISA revisions approved by the House and Senate Judiciary Committees do not grant retroactive legal immunity for these telecommunication providers that knowingly ignored the law. In contrast to the PAA of 2007, both the current House and Senate Judiciary Committee versions of FISA revision limit warrantless surveillance to circumstances which are less incompatible with our Constitution, both versions establish more oversight by Congress and by the Foreign Intelligence Surveillance Court (FISC), and both versions state explicitly that FISA is the exclusive means by which electronic surveillance may be conducted. However, the Senate Judiciary Committee revision of FISA has been torpedoed by Republicans and by certain Senate Democrats who are acting as if they were on retainer for the telecommunications industry. The "Blue Dog" Democrats in the House of Representatives are also anxious to capitulate to the Republicans.

The President has threatened to veto the FISA rewrite if FISA does not provide retroactive legal immunity for telecommunication providers, and if the final version of FISA does not resemble more closely the evisceration of FISA he temporarily achieved in August 2007. The fallback position for the President's legal advisors is their assertion that the allegedly defunct Terrorist Surveillance Program was legal because the President's inherent power (i.e., power which is alleged to be implied but which is not mentioned in the Constitution) as commander-in-chief (which is stated but not defined in Article II of the Constitution) authorized him to bypass the powers of Congress which are detailed in Section 1 and Section 8 of Article I of the Constitution. In the Report prepared by the Senate Intelligence Committee in October 2007 to accompany the Senate version of a more permanent revision of FISA, four Republican Senators (including the ranking Republican on the Senate Intelligence Committee) added a statement reiterating their belief that the Terrorist Surveillance Program was legal because the unwritten inherent powers of the President under Article II of the Constitution superseded the legislative power of Congress as expressed through FISA.

Damning information about this issue was revealed in an August 2007 New York Times article, with reference to the PAA of 2007, by Eric Lichtblau and James Risen, who wrote:
At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress. At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, "is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence." Brian Walsh, a senior legal fellow at the conservative Heritage Foundation who attended the same private meeting with Justice Department officials, acknowledged that the meeting — intended by the administration to solicit recommendations on the wiretapping legislation — became quite heated at times. But he said he thought the administration’s stance on the president’s commander-in-chief powers was "a wise course." "They were careful not to concede any authority that they believe they have under Article II," Mr. Walsh said. "If they think they have the constitutional authority, it wouldn’t make sense to commit to not using it.”
(As Henny Youngman would have said: "This is a strict construction of the Constitution!?!?!?")

The rebuttal to an excess of Banana Republic Dictator Theater can be found in the Supreme Court decision written by Justice Robert Jackson in the 1952 case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER: " When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." From a practical standpoint, the Constitution is whatever the Supreme Court says it is, but an assertion by the President that he is entitled to engage in massive electronic surveillance without warrants, involving citizens and other legal residents of the United States, is contrary to the plain meaning of the Fourth Amendment to the Constitution even if FISA is rewritten to authorize such surveillance and even if the Supreme Court were to uphold such a revision of FISA.

We used to be the land of the free and the home of the brave, but now we are the land of "nine-eleven changed everything". There are few transgressions of the President which are not excused by fear-mongering with respect to our so-called "war on terror", and this is a major impediment to a rational discussion of the limits on the President's authority and our professed adherence to the rule of law. The President's profligate use of signing statements to distort the meaning of various pieces of legislation is ample evidence that the President cannot be entrusted with poorly-defined powers which are prone to abuse. On May 17, 2002, the FISA Court released an opinion which stated that FBI and Justice Department officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh. In March 2007, the Inspector General for the Department of Justice released a report confirming extensive misuse of National Security Letters in a sample of four FBI field offices, and an internal audit by the FBI confirmed that the problem was far more extensive than it previously had been thought to be. The discovery several months ago that the CIA Director is investigating the CIA Inspector General is a good example of why a weasel cannot be left alone to guard the chicken coop.

Protecting the lives of our fellow citizens is not a goal which should be dismissed casually, but the threat of a terrorist attack is relatively insignificant when compared to some other threats in which we actually participate willingly or threats that we take for granted. Cigarette smoking causes over 400,000 deaths each year, and alcohol-related deaths exceed 75,000 each year, but the two most destructive drugs in the United States are legal, and Prohibition was a dismal failure due to non-compliance by the public. We know that reducing the speed limit on our highways would save many thousands of lives every year, but the driving public would oppose such a policy because it would cause too much inconvenience. Obesity-related illnesses have become a major cause of premature deaths in the United States, but people are not afraid of food. Approximately 30,000 people are killed each year in the United States by citizens and other legal residents using guns, but most people accept that disarming the populace is unconstitutional and unrealistic (at least while Charlton Heston is still living). Al-Qaida in Iraq is less dangerous to us than the amorphous army of drunk drivers in the United States. It is likely that terrorists will occasionally succeed in killing some people in the United States, and we should do everything practical that is allowed within our Constitution to prevent such deaths, but we should not bargain away our inalienable rights due to fears which are disproportionate to the actual threat.

The right of "habeas corpus" which protects people against unlawful and arbitrary detention has been one of the most fundamental principles of any free society since King John was forced by his nobles to sign the Magna Carta. Section 9 of Article I of the United States Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Despite the fact that various aspects related to the right of "habeas corpus" are delineated in the Fourth, Fifth and (most specifically) Sixth Amendments to the Constitution, former Attorney General Alberto Gonzales stated in testimony before the Senate Judiciary Committee on January 17, 2007 that the Constitution does not guarantee the right of "habeas corpus" to every United States citizen or resident. Although President Lincoln suspended the right of "habeas corpus" selectively during the Civil War (as did Jefferson Davis in the Confederacy), this course of action was quite limited in scope with respect to the existing danger, and the suspension of these rights was very limited in duration. However, our so-called "war on terror" is an endless war, and therefore we would be wise not to jettison essential elements of our Constitution because the thought of Islamic terrorists induces us to wet our pants. Unfortunately, there are many politicians who are betting that they will not pay any political price by trading away parts of our Constitution in return for votes from a cowering public.

(1) Bend over; (2) Put your head between your legs; (3) Kiss your right to privacy goodbye. This was the new order of things as outlined in a speech by Donald Kerr, Principal Deputy Director of the Office of National Intelligence, on October 23, 2007 at the fourth annual Geospatial Intelligence Symposium in San Antonio, Texas. With reference to Internet sites like Myspace and Facebook, Mr. Kerr said that Americans essentially are giving up privacy anyway by posting personal information on such social networking sites. Mr. Kerr, age 68, stated that the two most recent generations have very different ideas about what is essential privacy and about what they would wish to protect concerning their lives and affairs. Therefore, Mr. Kerr concluded that anyone who has typed his/her name on "Google" understands that protecting privacy from our own government is not a fight which can be won, and (he really said this) "it's not for us to inflict one size fits all". The "greatest generation" and the baby boomers must now apologize for inflicting the Bill of Rights on our younger generations. If I understand Mr. Kerr's spurious argument correctly (and I do), he thinks it is a waste of time and energy to try to save the Fourth Amendment to the Constitution because Generation X and Generation Y have chosen to post their lives on the Internet. This is a timely reminder that a fool and his Constitution are soon parted.


I wish they would publish the list of the senators and how they voted.


It is time to write a letter to the gov't now (within the next 30 days) to notify them that you want to reserve the right to sue them later.
The senators gave away my right to due process. I hope The World Court brings justice to BushCo-- since congress will not do so. I think that today BushCo and the senate have done worse to our freedom than al Qaeda ever would do. BTW did Hillary place a vote on this today? Does anyone have Qwest's phone number? I hope they soon will have a large market share in the mid-west.


What makes anybody think we will have a Democratic prez to use these deplorable spying tactics? All indications are that
this illegal govt. now in power will orchestrate another false flag operation before the end of Shrub's term, calling for martial law and suspending elections.
Iran is the golden ring on this latest merry-go-ride...


Not mentioned in this article: Barack Obama was in Washington DC today, voting for the Feingold amendment.

Senator Clinton was in Texas trying to save her failing campaign. She skipped the vote.

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00018


Why would the phone company need to be given immunity by the government anyway? If they haven't done anything wrong, they have nothing to worry about. Right? Wasn't that how the pro-spying argument goes? Or is that true only for the commoners and not corporate royalty who make generous campaign contributions.


We keep getting screwed royally, and not just by the Republics.

Many of the Dems are scared $#i%l#@@ by the base and Bush I guess.

Why they went along is a good question.


"AT&T SPEAKS"

HEY ALL YOU "CRACKBERRY" USERS OUT THERE, DO YOU WANT ME TO ERASE YOUR EMAILS TOO.

HEY ALL YOU INTERNET USERS, DO YOU WANT ME TO ERASE YOUR EMAILS, YOUR MYSPACES.

HEY ALL YOU CONSTITUTIONAL SCHOLARS WHO SERVE IN THE CONGRESS OF THE UNITED STATES, DO YOU WANT YOUR EMAILS TO YOUR MISTRESS TO NOW BE UNCUT EDITED IN YOUR NEXT VERIZON WIRELESS BILL OR AT&T BILL.

WELL GET ME MY IMMUNITY AND I WILL GET THE PRESIDENT TO SIGN THAT "STIMULUS PACKAGE" THAT WAS SO DESPERATATELY NEEDED TO GET YOU TO SIGN OFF THE "PRIVACY" OF AMERICANS OVER TO "THE COMMISSION" AKA THE SECRETARY AND KARL ROVE.

GOOD SHOT CONGRESS, WAY TO GO, WAY TO ROLLOVER AND GIVE IT ALL UP.

WHAT A LARRY CRAIG MOMENT. TAP TAP AMERICA, TAP TAP OVER ON THE GOP SIDE ONE TIME.

"IMMORAL, UNETHICAL, AND UNAMERICAN"

BOTH DEMOCRATS WHO SAID YES, AND REPUBLICANS WHO DEMANDED NOTHING BUT YES!


Sounds to me like an awful lot of Liberals are worried about who they have been calling lately! Perhaps, America's enemies? After all, when a suicide bomber blows up innocent people in Iraq, the media and Democrats blame GWB. You "loons" would do anything to make Bush look bad!!! We all know how you hate your own country and would just love to see this country collapse! Do you people have any plans to defend our country "if" a Dem is elected to the White House in 09? Or will you just pretend that the world must be full of peace loving people?


Mr. Oliphant uses Russ Feingold, who's in a yearly competition with Barack H. (middle name were not allowed to say) Obama to rank as "Most Liberal" senator, as the only person quoted in his article. And the only senators mentioned are Democrats.

Feingold's minority position is obviously so feeble that the "journalist" feels he must censor the majority view.


Joe, You must have LSD in your kool-aid. Bush is the one looking for immunity for the telecoms. But the telecoms have nothing to worry about if they haven't done anything illegal, right? Sounds to me like Bush is worried that he and the telecoms will be found guilty of illegal spying if this goes to court.


"LIBERALS SPEAK"

OKAY WE TOO WANT TO EAVESDROP AND WIRETAP AND DATAMINE YOU.

OBAMA OR HILLARY CLINTON SAYS THANK YOU. THIS WAY, THEY TOO CAN PASS AN "EXECUTIVE ORDER" TO RETRIEVE ALL LOST EMAILS THROUGH THE PRESIDENTIAL ARCHIVES ACT SERVERS.

SENATOR OBAMA AND SENATOR HILLARY CLINTON SAYS THANK YOU, CONSERVATIVE THINK TANKS WE TOO WANT TO WANT A CONSTITUTIONAL CHANGE ENDING YOUR PARTY OF LAW BREAKING CONSTITUTIONAL WAIVERS AND DEADEND EARMARKS. BUT IT WOULD BE NICE TO HEAR THEM BEFORE YOU BROUGHT THEM TO THE FLOOR IN THE BEST INTEREST OF NATIONAL SECURITY.

SO FOR ANYONE TO SAY, LIBERALS ARE UPSET BECAUSE OF WHOM THEY CALL ON THEIR SO CALLED "PRIVATE" LINES. YES, WE ARE. SO FOR ANYONE TO SAY, LIBERALS ARE UPSET BECAUSE OF WHOM THEY EMAIL A PRIVATE LETTER OR CONVERSATION, YES WE ARE.

BUT TO ANYONE THAT THINKS THIS WAS OKAY, ASK LARRY CRAIG, HE DIDN'T! MARK FOLEY DIDN'T EITHER.


Welsh,

The 'minority view' is desperately trying to save America and her freedoms.


I am fed up with you all!!! Maybe we should just get our ssn tattooed on our forehead now to save our government the trouble of tracking us!! What has happened to us as a nation? We are so stupid and fear everything.


You "loons" would do anything to make Bush look bad!!! We all know how you hate your own country and would just love to see this country collapse! Do you people have any plans to defend our country "if" a Dem is elected to the White House in 09? Or will you just pretend that the world must be full of peace loving people?

Posted by: Joe | February 12, 2008 6:14 PM

Mr. Oliphant uses Russ Feingold, who's in a yearly competition with Barack H. (middle name were not allowed to say) Obama to rank as "Most Liberal" senator, as the only person quoted in his article. And the only senators mentioned are Democrats.

Feingold's minority position is obviously so feeble that the "journalist" feels he must censor the majority view.

Posted by: Welch | February 12, 2008 6:19 PM
------------------------


I love it when Republic Party morons like these two (see above) get on here and raise their hands to volunteer to give up more of their Constitutional rights in the name of "freedom".

There a name for that but I just can't remember it...oh yeah, FASCISM:
http://www.bushflash.com/14.html


John E,

Hey, where is John D, The French Mime, on this one?

Still trapped in the invisible box, trying desperately to communicate with no one?


Joe- you will never understand. You will never get it. You flunk Government 101. You are the opposite of a patriot. Most everyone else can see that providing immunity to telcoms and individuals-- who knowingly broke the law--does nothing to protect America. What T*by Keith song are you listening to right now?

The funny thing is--Bush/Rove/Cheney went to great lengths not to have many of their emails found or known. I think their actions say that they are above even their own (new) laws. SENATE S.O.S.--PLEASE PROTECT AMERICA--NO IMMUNITY. S.O.S.


This is wrong, wrong, wrong top to bottom no accountability for anything or anyone ever. We need an RSS feed for every upcoming vote the government plans to implement, to go out and protest their divergence from the public's wishes.


I don't understand how a Democratic Congress can lose this vote??? It's mind boggling. . .no wonder why we need to go to the polls to vote them out. They keep giving us the same the same stuff. . .just different color!


I'm giving my telecom business to Qwest. They were the only telecom people to tell the bushwhacker to take a hike when he asked them to help spy on us. Lets ALL switch to Qwest and the let the Market speak.


This was a very shameful day for the Senate. Thanks to Chris Dodd. A big fat raspberry to the Republics and the Dem leadership.


Our old Republican system of so called, watered down, one man 1/8 vote 'democracy' is just not getting it done.

Can anyone say 'parliamentary form of democracy'?

Just look at the way our elections are set up and the role of the EC in presidential elections. This is not democracy.


Is anyone really surprised by this? It is the MO of the Democratic led Congress - puff, puff, puff, fold. I honestly can't remember a Congressional majority being browbeat this badly by a president from the opposing party. Harry Reid should resign yesterday. The Dems in Congress either lack the courage of their convictions, or they are hypocrites who never believed in their own rhetoric in the first place.


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