Tag: FISA

Not really an essay, but some thoughts on where FISA goes after Congress passes and Bush signs it.

1.  This does not kill lawsuits.  It changes them.  The fight now becomes whether the New FISA is constitutional under the 4th Amendment.  The Fourth Amendment is pretty clear.  It requires probable cause and a search warrant.  Neither is required under this version.  Now, there are exceptions to the 4th amdmt. rule.  You can look at them at Wikipedia.  http://en.wikipedia.org/wiki/F… None seem to really cover this area and, clearly, stuff you say over your phone or through emails and even searches you do on the internet do carry with them a reasonable expectation of privacy.

2.  So EFF and/or the ACLU attacks the statute.  But to attack it may require inquiries as to what is really happening, what the dragnet or data mine actually does.  And that, not the 4th Amdt. may be the rub.  It’s called the state secrets doctrine and may do more to end these cases than anything else.  However, there are some good opinions out there that say no state secrets since much of the details of program were disclosed by Bush.

3.  So it stays in court, the attorney general’s office defends against the lawsuit.  Who controls the AG’s office?  The president.  Who is president?  Perhaps Obama.  If the AG ultimately agrees the New FISA is Uncon, the Constitution is preserved.  That is why it is important to watch what Obama says and does now.

4.  Will the Supreme Court have an opportunity to ultimately defy the executive branch/A.G’s office and court’s own power to determine probable cause and find the bill Constitutional ?  It would surely be an ironic ending–the legislative and judicial branches, so eminently ignored by the executive now, will ultimately be the one responsible for breaking the Constitution.

Speaker of the House Nancy Pelosi

(202) 225-0100

One of these things is not like the other…….

Senator Fiengold:

   “The proposed FISA deal is not a compromise; it is a capitulation.  The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President’s illegal program, and which fails to protect the privacy of law-abiding Americans at home.”

Senator Leahy:

    “I will oppose this new FISA bill when the Senate votes on it next week. We must do everything we can to protect Americans from the Bush-Cheney Administration’s erosion of our civil liberties and callous disregard for the rule of law — and this new FISA bill fails that test.”

Speaker Pelosi:

Tomorrow, we will be taking up the FISA bill. As you probably know, the bill has been filed. It is a balanced bill. I could argue it either way, not being a lawyer, but nonetheless, I could argue it either way. . . . [It] is again in Title II, an improvement over the Senate bill in that it empowers the District Court, not the FISA Court, to look into issues that relate to immunity. . . . So that will be legislation that we take up tomorrow. We will have a lively debate I’m sure within our caucus on this subject and in the Congress. It has bipartisan support. I commend Steny Hoyer for his important work on this legislation, working in a bipartisan way.

Greenwald, as always…a must read:

If I were a hard-core Bush follower — snip — praising the “compromise” bill — I would have a huge poster of Steny Hoyer or Rahm Emanuel on my wall. Unconditional, endless funding of the war. Warrantless eavesdropping. A stop to lawsuits examining Bush lawbreaking. Telecom immunity. What more could a Bush follower ask for? As Kit Bond put it: “the White House got a better deal than they even had hoped to get” — a deal they tried but were unable to get when the Congress was controlled by Bill Frist and Denny Hastert.

Hey Nance, hey Steny….These are OUR CONSTITUTIONAL RIGHTS that you are bargaining away. Who do you serve, The People of the United States or the Telecommunications Corporations? Simpering corrupt cowards.

According to The Hill, a new proposal from some of the more spineless members of the Congressional Democrats, have offered the Republicans a “proposal to break the logjam on electronic-surveillance legislation by allowing federal district courts to determine whether telephone companies seeking legal immunity received orders from the Bush administration to wiretap people’s phones.”

The new smoke and mirrors immunity was offered by flag-pin wearing House Majority Leader Steny Hoyer (D-MD) and supported by Sen. Jay Rockefeller (D-WV), chair of the Senate Intelligence committee. While the plan differs from the one championed by Sen. Kit Bond (R-MO), “in both cases, the courts would not decide whether those orders constitute a violation of the law, according to people familiar with the language.”

But, Sens. Chris Dodd (D-CT) and Russ Feingold (D-WI) are having none of this. In a 3-page letter (pdf) to their congressional colleagues, they write:

There are 3 Congressional actions we need to keep our eye on today and in the near future-

• FISA Compromise
• FEC Appointments
• Occupation Funding

Several people have wondered why Dennis Kucinich would vote aginst the FISA bill which didn’t have retroactive immunity, known as HR 3773.  Here’s his statement as to his reasoning:

The U.S. House of Representatives today refused to grant telecommunications companies retroactive immunity for assisting dictator George W. Bush in his illegal spying.

I interrupt this report for a brief rant: I really wish Reuters and other news agencies would cease using the word ‘defy’ and its derivatives when reporting about stories such as this.  Congress is the legislative body, and the branches of government are supposed to be co-equal.  Congress cannot, according to the Constitution, defy the executive branch because it is not subservient to it.

I now return to the story at hand.

But the 213-197 vote was far short of the two-thirds majority needed to override a promised veto by Bush. He has demanded that any telecommunication company that participated in his warrantless domestic spying program secretly begun after the September 11 attacks receive retroactive immunity.

As MSNBC reports, ‘Because of the promised veto, “this vote has no impact at all,” said Republican Whip Rep. Roy Blunt of Missouri.’

Republicans falsely accused Democrats of endangering national security by refusing to grant immunity.  But their arguments are based on deception; since the Foreign Intelligence Surveillance Act — passed in 1978 and updated in 1994 — set up a secret court that doles out ninety-nine percent of all warrants applied for, there is no legal block to using the power of the federal government to spy on alleged terrorist communications.  It is also unlikely that terrorists would be foolish enough to use telephone and Internet services to pass on information.

Bush’s illegal spying on American citizens is motivated, like Richard Nixon’s administration, to keep tabs on political enemies and to monitor dissent.  If telecommunications companies face prosecution for their role in helping him break the law, they may be more likely to cooperate with investigators to go after members of the White House who ordered the illegal wiretaps.  Bush wants to provide immunity in order to take away any incentive for that cooperation, because testimony and evidence is likely to directly implicate him in lawbreaking.

Cross-posted from EENR

Crossed-posted at EENR.

While the corporate punditry is distracted by the flap over Geraldine Ferraro’s comments about Barack Obama and the sex scandal plaguing soon-to-be-former New York governor Eliot Spitzer, the battle over FISA continues as U.S. dictator George W. Bush threatens to veto a House bill over the issue of retroactive immunity for the telecommunications companies that helped him break the law.  According to Reuters:

Bush is seeking immunity for telecommunications companies that participated in his warrantless domestic spying program after the September 11 attacks on the United States in 2001 and are now facing lawsuits.

The House legislation, scheduled for a vote later on Thursday, would allow phone companies to present their defense behind closed doors in federal court, with the judge given access to confidential government documents about eavesdropping begun after the September 11 attacks.

But the shrub is not satisfied with even this charade, instead selfishly insisting that telecommunications companies be granted full immunity from all lawsuits in addition to immunity from prosecution.  He also demands that all immunity be retroactive, so that he and his co-conspirators may avoid prosecution for past violations of the Foreign Intelligence Surveillance Act (FISA).

FISA was originally passed by Congress in 1978, following the revelations of illegal spying by president Richard Nixon during his tenure earlier in the decade.  The thirty-seventh president had resigned in 1974 ahead of impeachment proceedings for having violated the law and the Constitution.  FISA was designed to limit the scope of executive power to eavesdrop on American citizens.

The shrub has claimed unchecked power to spy on Americans in the name of fighting terrorists, but has consistently failed to provide any substantive evidence to show that his violations of FISA have actually prevented terrorist attacks on the U.S.  FISA requires that the federal government obtain warrants from a special court in order to conduct surveillance on foreign nationals.  The FISA court, which grants 99% of all warrants applied for, was amended in 1994 so the federal government may spy for up to seventy-two hours before having to apply for a warrant.

But even this proved insufficient for the shrub’s demands.  An exposé by the New York Times in December of 2005 revealed some of the extent of Bush’s lawbreaking.  Last year, Congress — by then under Democratic Party rule yet still caving in to the shrub’s demands — passed the unlawful “Protect” America Act, which violates the Fourth Amendment right against illegal searches and seizures by the government.  The act expired in early February, but all illegal surveillance ordered in that six-month period is still able to be carried out with no hope of prosecution against abuses.

Last month, Senate capitulation leader Harry Reid succeeded in passing a bill that grants the retroactive immunity demanded by Bush.  It has since been tied up in the House of Representatives, but immunity is likely to pass that body in some form despite public efforts to pressure Congress not to allow any such amnesty.

Amnesty for telecommunications companies means that in any official investigation, persons involved would have no incentive to cooperate with authorities or turn over evidence.  This means that, in the highly unlikely event Congress upholds its Constitutional duty to impeach Bush for high crimes, those in a position to provide testimony or evidence have no reason to cooperate.