Making Sense out of FISA

26Jun08

The Huffington Post’s big headline this afternoon is how the “netroots” movement is drifting away from Obama, or Obama is drifting away from them–Uh basically, what you need to know is that Democrats are aiming yet another loaded gun at their foot right now. Maybe it’s actually an automatic rifle.

Why is the left coming under attack from the more left? It’s probably not that Obama has foregone public financing, an issue he reversed his position on (and for god’s sake, from this point forward, this blog will never use the f***-f*** word. It’s the most arguably the most childish political term ever invented, and is directed at people who were dumb enough to vote for Bush in 2004. I won’t even use it for McCain, whom has more f***-f***s than Daytona Beach). Obama’s decision to not accept public financing isn’t that big of a deal because a) Democrats want to win, and b) he has basically used public financing, not taking contributions from PACs or lobbyists. What DKos, Think Progress, etc, etc are pissed about is the FISA bill which just passed in the House and is currently in the Senate.

First, what is FISA and what does it mean. FISA, or the Foreign Intelligence Surveillance Act, is legislation which dates back the Cold War. At the time, it was an anti-espionage bill targeted primarily against the Soviet Union. Also, it was passed in 1978, not exactly a great diplomatic time for America. The current FISA bill, as I understand it, establishes special courts that grant warrants to tap phones (including cell phones) in the interest of fighting terrorism. While the original FISA bill only authorized special courts for people suspected of being spies for other countries, the passage of the Patriot Act extended those courts jurisdiction to terrorist organizations unaffliliated with a country. That already sounds a little 1984ish, but, as there would have to be a warrant issued, it would have been constitutional. (this important to note: requests for FISA warrants are rarely denied. I heard recently that as little as 2 were rejected last year). It’s pretty hard to argue against that in any capacity (other than that the requests for warrants aren’t made public). However, in an earlier version of the FISA program, the Bush Administration collaborated with the telecom (AT&T, Sprint…) companies to wiretap citizens, without the authorization provided by a warrant. Thus, “warrantless wiretapping,” and thus, unconstitutional.

When the Democratic congress took over, the “netroots” community (which is helping, and has helped raise money for progressive candidates) pushed to have a new FISA bill, that would correct the sins of the past actions of the Bush Administration. Here’s where it starts to get tricky, and there are a number of factors involved.

First, we have to look at Nancy Pelosi’s statement upon becoming Speaker of the House. She said, famously, that the impeachment of President Bush is off the table. This angered many of the progressive activists that helped get her party the majority and for good reason; you can get impeached for getting a blow job, but not for lying yourself into an unnecessary war and spying on your own people? Regardless, considering how much of a political disaster the last impeachment was (or even the one before that), Pelosi found it more politically expedient to just try to move forward. Hey, at least Cheney doesn’t get to be president.

So that brings us to a bill such as FISA, which again, attempts to loosely correct some the (and there’s no other word for it) crimes of the Bush administration. The bill that ended up passing in the House included criminal immunity for the telecom companies which participated in the program at the administration’s request. This provision has upset the netroots, who largely believe that the telecom companies are equally as guilty as the administration, and thus should be able to face legal recourse for their actions.

Netroots sites have put extreme pressure on Democratic politicians to come out and oppose the retroactive immunity for telecoms, even going as far to say that Democrats in favor of the bill (and there are a fair amount, more on that in a second) are selling out our constitutional rights. And again, it is certain that warrantless wiretapping is unconstitutional, and has even been tested before to some extent in the Supreme Court.

However, as FISA is essentially an anti-terrorism bill, much like the prospect of impeachment, it puts the Democrats in an awkward position.  For one, if they were to come out as strongly as the netroots wants them to, they would be dragged through the mud by Republicans who would call them soft on terror. However if they support the bill entirely, including telecom immunity, they “sell out,” and they risk alienating that powerful progressive base. A lot of these people supported Nader in 2000, and have since supported the Democrats because they have seen how much worse the Republicans are. That being said, with libertarianism on the rise, enough to make the Republicans nervous, whose to say that there won’t be another progressive party to contend with soon enough?

Finding the balance here is where the Senate, and especially the dust up over Obama comes in. Obama has come out in support of the bill, but says he opposes immunity for the telecoms. It’s a politically convenient position (and not an all together unreasonable one), but the bill will have to come up for revision first. With telecom lobby money seeming to buy out many a Democrat (the average amount on lobbying spent per congress person by telecom companies has increased by thousands), it seems that it may be unlikely Obama will get to have his cake and eat it too on this one. Chances are, he’ll vote in favor of FISA and take the strong anti-terror stance. So the telecoms will never be charged with anything, in all likelihood, as its going to be hard to properly change this thing, and if it isn’t changed, it’s too tough to vote against. Obama is about to be called a sell out, and the near ritualistic political suicide will commence in the Democratic party before November. The Dems can probably can overcome it, but it’ll be a lot closer than they want it to be.

But wait. Doesn’t this whole thing sound a little fishy?

Let’s go back to Pelosi refusing to bring up impeachment. Isn’t that what this is really all about? Is it really the telecoms we should be punishing? Did they just randomly spy on their customers and turn the information over to the government because they thought it would be good for business? Hell, isn’t it possible that, despite being ethically wrong, the telecoms alone really didn’t commit a crime?

Honestly, I’m unsure. It seems to me that making the telecoms legally responsible is just a cheap way to get to the Bush administration; in other words, practically making up a crime for the telecoms in order to bust (hypothetically) the Bush administration for conspiracy to commit said made up crime. This situation would occur in lieu of actually busting the administration on actual crimes. But we know this isn’t going to happen, as it is “off the table.”

Lost in all of this is the possibility that the telecoms may not have even been the most willing participants. Due to the secrecy and coercive tactics of the Bush administration, and given the political climate at the time the Bush administration started doing this all, isn’t it expected that the telecoms would listen the Department of Justice? If a cop or judge or other legal authority figure tells you to do something, isn’t it pretty standard operating procedure to in fact do what they say?

I don’t want to close myself to the possibility that I could be missing something in all of this. Certainly I’m seldom one to give the benefit of the doubt to big corporations such as the ones involved in this ongoing scandal/legislation. Considering I’m at about 1300 words right now, most of which was a relatively brief summary of the law and the current bill, this is very complicated stuff, and could play out for years–if Obama does win he says he will investigate criminal activity by this administration, which at this rate could take decades.

What I sense is that there are many civil libertarians who are very upset about what has happened since 9/11 in this administration. They are angry about the fact that their constitutional rights were blatantly violated by a corrupt administration with the excuse of patriotism at its back. I’m sure it hurts civil libertarians doubley, as this version of American fascism was also completely incompetent in just about all of their ill-advised ventures. It will come as a great irony that this president’s greatest achievement was actually one of humanitarianism, as he has greatly increased aid to Africa (because Bono told him to). That is beside the point though.

I disagree with Pelosi and others who thought impeachment wouldn’t have been politically wise. We could have gotten arguably the worst criminals in presidential history, and set a powerful precedent for limiting executive power. Plus support for the illegal war was at an all time low, and fewer than 20% of the country believe that the Bush track is the right one to go down. I am most concerned with getting the Bush administration on the crimes which they committed. When I hear that people who represent a strong hope in the fight to take the office back from the neo-cons complaining about telecom companies, I cannot help but think: how petty.  Your going to lessen your support for a candidate that can put an end to these violations, because you want to pretend you can take down the Bush administration through this bill? It’s just absurd, and wreaks of past Democratic failures.

If I’m wrong on this, or I am missing crucial information, please let me know. Otherwise, think about this rationally. A time for a more progressive country will come, but it will come incrementally. Didn’t Nader teach everyone that?

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4 Responses to “Making Sense out of FISA”

  1. 1 Patrick Meighan

    “Hell, isn’t it possible that, despite being ethically wrong, the telecoms alone really didn’t commit a crime? Honestly, I’m unsure.”

    Well then, perhaps you should listen to to the federal judge who’s actually trying the case that Obama (et al) are in the midst of nullifying.

    Per Judge Vaughn Walker (appointee of Bush 41):”AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

    link: http://eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf

    But what does that guy know? He’s only the federal judge actually trying the case.

    “It seems to me that making the telecoms legally responsible is just a cheap way to get to the Bush administration; in other words, practically making up a crime for the telecoms in order to bust (hypothetically) the Bush administration for conspiracy to commit said made up crime. This situation would occur in lieu of actually busting the administration on actual crimes. But we know this isn’t going to happen, as it is “off the table.”

    a) No one is “making up a crime.” If the telecoms conducted wiretaps on American citizens without a warrant signed by a judge, it’s a violation of a 30-year-old federal law. I’d face liability if I violated established law. So would you. Why shouldn’t the telecoms?

    b) No one favors suing the telecoms *instead of* punishing the Executive for its lawbreaking. Rather, suing the telecoms is the only remaining avenue to officially and legally reveal and, ultimately, punish the Executive for its lawbreaking. Reason: the courts keep blocking legal action against the Executive on two specific grounds: a) standings (the Administration won’t tell you if they’ve spied on you, so you can’t prove you’ve been spied on, so you can’t prove you have standing, so you can’t sue) and b) state’s secrets claims. These telecom lawsuits–the ones negated by this piece of bilge Obama just declared his support for–are the only remaining avenue of discovery for which standing has been established and for which state’s secrets claims have been denied. As such, these lawsuits are the last remaining opportunity to have a court reaffirm the 4th Amendment, officially and legally establish Executive breaches of said Amendment, and effectuate a discovery process that could truly and genuinely lead to sanctions against the Bush Administration. This Hoyer, Pelosi, Emanuel (and now Obama) bill is a Get Out Of Jail Free card for both the telecoms *and* the Administration.

    “Lost in all of this is the possibility that the telecoms may not have even been the most willing participants. Due to the secrecy and coercive tactics of the Bush administration, and given the political climate at the time the Bush administration started doing this all, isn’t it expected that the telecoms would listen the Department of Justice? If a cop or judge or other legal authority figure tells you to do something, isn’t it pretty standard operating procedure to in fact do what they say?”

    a) Not all telecoms did “listen the Department of Justice” (sic). Qwest, for one, told the Department of Justice to do exactly what the law required: come back with a valid warrant. Qwest followed the law, and the other telecoms did not. That’s why Qwest is not named in these lawsuits, and the other telecoms are.

    b) The fact that someone else has asked you to do something patently illegal (something that you, yourself, know is illegal, as affirmed by Judge Vaughn Walker, above) doesn’t absolve you of liability for the illegal action. If I ask you to murder someone, and you do it and get caught, my initial request is not gonna absolve you of your crime. Similarly, if the DOJ asks AT&T to violate federal law and the 4th Amendment of the United States Constitution, the DOJ’s request does not absolve AT&T of its flagrant illegality.

    c) Yes, if “a judge” “tells you to do something” via a legal warrant, it is indeed “standard operating procedure to in fact do what they say.” The problem is, in this case, is that no “judge” told anyone to do anything. Which is to say, there was no warrant, as required by law. Hence the litigation that Obama, et al, is in the midst of quashing.

    “A time for a more progressive country will come, but it will come incrementally.”

    This bill is most assuredly not an incremental step toward a more progressive country, it’s huge leap *away* from a more progressive country. It rolls back civil liberties that have existed for decades [most notably the assurance that any American placing a phone call or sending an electronic message can do so free from the fear of governmental eavesdropping (outside of a valid, individualized warrant from a judge)], and renders all-but-null the 4th Amendment. It’s not a little Orwellian to imagine that there is anything even incrementally progressive in the rollback of cherished civil liberties.

    “If I’m wrong on this, or I am missing crucial information, please let me know.”

    Done.

    Patrick Meighan
    Culver City, CA

  2. 2 poliology

    Hey,

    -Thanks for the above comment. And indeed the above information is somewhat enlightening. I have to disagree with you still, to some extent. Firstly, what I meant by incrementally progressive is getting Obama elected first, rather than making a big deal over this bill, big enough to give McCain an advantage.

    Furthermore, I still do believe this is somewhat of a cheap way to get the administration. I don’t believe you can claim that the 4th amendment will save us here when it couldn’t prevent the situation that caused it. Furthermore, there will be other opportunities. Look at calling in McClellan and others, look at the possibility of Obama opening an investigation, there could be war-crimes trials…the list goes on. It sounds to me, again not an expert on the bill or the program, that the goal is to get these suits going before Bush leaves office. Why? He’s almost gone.

    It seems to me there is also the matter of motive: why would the telecoms do this if they weren’t intimidated?

    Furthermore, doesn’t the current bill have provisions that will prevent warrantless wiretaps in the future? And again, I stress the ease of which they can obtain the warrants; they are basically rubber stamps.

    I agree, it’s awful and it’s unconstitutional that the administration did this, and I’m not exactly thrilled with the telecoms either. I just don’t see why progressives should risk Obama over this.

  3. 3 Patrick Meighan

    “Furthermore, I still do believe this is somewhat of a cheap way to get the administration.”

    Cheap or no, it’s the *only* way left. Why do you suppose the Bush Administration is so adamant that the FISA bill contain retroactive immunity for the telecoms? Is it ’cause President Bush truly, deeply cares about AT&T’s fiduciary wellbeing? Or is it ’cause the Bush Administration fully understands that this telecom litigation is the last, best opportunity for liberal critics of the Administration to officially and legally disclose the full extent of its Executive lawlessness?

    Clearly, it’s the latter. It can only be the latter.

    “I don’t believe you can claim that the 4th amendment will save us here when it couldn’t prevent the situation that caused it.”

    The Bill of Rights don’t, in and of themselves, prevent rights from being violated. What they do is provide the legal foundation with which to remediate violations. As such, the 4th Amendment is, indeed, currently working as intended, in the form of the telecom litigation currently working its way through federal court (the litigation that Obama is well on his way to rendering null). It’s a slow and frustrating process, but it’s the only one we have, and the solution to our frustrations with the process isn’t to support the 4th Amendment’s utter evisceration. And that’s what this FISA bill (supported by Obama in direct betrayal of his earlier promises) truly amounts to. The evisceration of the 4th Amendment.

    “Furthermore, there will be other opportunities. Look at calling in McClellan and others, look at the possibility of Obama opening an investigation, there could be war-crimes trials…the list goes on.”

    a) Congress can’t compel testimony, which significantly reduces to nil the likelihood of Congressional hearings leading to legal prosecution of Bush Administration officials guilty of violations of the federal FISA law.

    b) The likelihood that President Obama will do anything to erode the unchecked power that this bill vests in the presidency is roughly equivalent to the likelihood that you and I will wake up in Candy Land tomorrow. Unchecked power, once acquired by a human being, does not tend to be voluntarily surrendered out of the kindness of said human being’s heart. Not even when that human being is Barack Obama.

    “It seems to me there is also the matter of motive: why would the telecoms do this if they weren’t intimidated?”

    Answer: because the telecoms all retain large and profitable contracts with the federal government and do not wish to lose those fat contracts by falling out of Administrative favor.

    From the USA Today:
    “Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies… In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.”

    Link:
    http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm

    Got that? No eavesdroppy, no money.

    Any further questions about the telecoms’ motives?

    “Furthermore, doesn’t the current bill have provisions that will prevent warrantless wiretaps in the future?”

    Not ones with any teeth at all, and none which require individualized warrants if the Administration, of its own accord, opts not to secure them. This bill legalizes basket warrants, allows the administration to tap communications without any enforceable requirement that the communications be related to a security threat, and the only mandatory court oversight is of general procedures, not of individual taps and targets. To quote Russ Feingold, “Anybody who claims this is an okay bill, I really question if they’ve even read it.”

    “And again, I stress the ease of which they can obtain the warrants; they are basically rubber stamps.”

    Indeed, but at least the warrants, as currently secured, must be obtained individually and specifically, and via demonstration (to a judge) of probable cause to believe that the specific target of the warrant is an agent of a foreign power. In other words, Administrative spying on political opponents has (’til now) been limited to whatever it had the ability to persuade a judge was necessary and legitimate. This new bill jettisons that individualized warrant requirement (at the Administration’s discretion) and allows the Administration to tap the international communications of any American it chooses, without an iota of oversight. That’s huge, man. It’s the shredding of the 4th Amendment, is what it is.

    “I agree, it’s awful and it’s unconstitutional that the administration did this, and I’m not exactly thrilled with the telecoms either. I just don’t see why progressives should risk Obama over this.”

    In my mind, the 4th Amendment is waaaay too high a price to pay in exchange for an Obama Administration. And, truthfully, if you’re indeed willing to trade the 4th Amendment for an Obama presidency, then you and I just come from completely different universes.

    Patrick Meighan
    Culver City, CA

  4. 4 poliology

    So what you are saying is the administration did, in fact, pose a threat to those companies by taking away there contracts.

    Again, I’m all in favor of the 4th amendment. I think one aspect that is important to note, however, is that the meaning of the 4th amendment only came to be through a supreme court decision on obscenity–it came at a progressive time in American history. That’s why I support Obama over McCain. At the end of the day, election isn’t between the 4th amendment and Obama. It’s Obama and McCain. If you think Obama is going to abuse this power, which is not necessarily permanent, I think you’re mistaken. And again, consider the alternative, someone who will no doubt use this power,start more wars, have less people insured, and lead the country down an even worse direction. There will never be a more progressive candidate in the future if we don’t start now, because if McCain is president, we may not even have a country in 4 years.


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