The FISA debate: H.R. 6304, punishment or prevention?

I’m beginning to harbor a fantasy in which Glenn Greenwald and Keith Olbermann are left together somewhere in the Idaho-Oregon-Nevada country where they would be free to debate the FISA legislation at the tops of their lungs without disturbing much more than some antelope, deer, a few mountain lions, and assorted badgers. [Salon] Both are correct in claiming the Bush Administration has played fast and loose with the U.S. Constitution, international law and treaties, and Heaven Only Knows how many U.S. statutes.

Unfortunately, both have also launched themselves into screeds that purport to define a “real” Democrat, or a “real” defender of the Constitution, or related categorizations – none of which gets us much closer to determining what, if anything, ought to be done with the current legislation. Mr. Olbermann is sure to launch round (whatever it is now) during a ‘special comment’ tonight, and Mr. Greenwald will surely offer another rejoinder.

First, we probably ought to separate what the law is supposed to do from what we might all like to see happen. The bill, in its most current incarnation, is now designated H.R. 6304, and it mainly seeks to address issues raised in Sections 701-703,707 of the FISA statute. Leaving immunizing the telecom corporations, impeaching the president, suing the socks off AT&T, storming the Bastille, and other matters aside for the moment, it is instructive to look at the actual bill:

Section 702 allows the Attorney General and the Director of National Intelligence to jointly authorize the surveillance of targeted persons who are “reasonably believed to be located outside the United States” for one year. Except: (1) no one known to be in the U.S. at the time of acquisition can be intentionally targeted; (2) a person outside the U.S. can’t be targeted to “get at” a person known to be in the U.S.; (3) no U.S. citizen can be targeted outside the U.S.; (4) the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the U.S.; and (4) surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” [Thomas] Short version: No targeting U.S. citizens, no reverse targeting of U.S. citizens, no blanket electronic surveillance of U.S. citizens; no messing with the provisions of the 4^th Amendment.

Oversight and Review: Additional provisions of Section 702 concern targeting procedures, requiring the Attorney General and the Director of National Intelligence to develop guidelines which “shall be subject to judicial review.” The Attorney General and Director of National Intelligence must develop minimization procedures, also subject to judicial review. Guidelines for compliance must be submitted to the congressional intelligence committees, the House and Senate Judiciary Committees, and the Foreign Intelligence Surveillance Court. Short version: There are to be reviewable targeting, minimization, and compliance rules.

Section 703 deals with surveillance of those persons reasonably believed to be outside the United States. There is one provision repeated in different contexts that warrants citing in full:

USE OF INFORMATION- If an application for approval submitted pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order is issued approving the acquisition, no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

Section 707 requires regular reports from the Attorney General to the intelligence committees, and to the House and Senate Judiciary Committees at least twice annually. Further, there is to be an amendment to Section 102 including “a statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted.”

Those who were primarily concerned about (1) targeting, (2) reverse targeting, (3) minimization, (4) compliance, and (5) exclusivity, as they relate to FISA programs should find some comfort in the provisions outlined above.

What the bill does not do is settle political and Constitutional questions regarding the behavior of the Bush-Cheney Administration, and herein lies the source of considerable controversy.

Those who believe that the full extent of the Bush-Cheney Administration’s misbehavior can only be determined by full judicial review of its intelligence programs, policies, and the actions of its minions as revealed in open courts, will not be satisfied with the contents of this bill. However, thanks to the cases already launched and the whistles already blown we have a relative good idea of what happened.

We know that the Total Information Awareness program in the Pentagon was shut down in 2003 after questions about its constitutionality were raised. [DB] The National Security Analysis Center’s penchant for regression analysis has been questioned. [DB] The MATRIX (Multi-State Anti-Terrorism Information Exchange System) is now public knowledge. [DB] The Pentagon was embarrassed by the disclosure of its TALON program. [DB] “Genisys,” “EELD,” and “Scalable Social Network Analysis,” and CIFA are no longer secret. [DB] The fact that the Bush-Cheney Administration has been trying to create the “largest database ever assembled in the world,” is now common knowledge. [DB] And, we know that the Bush-Cheney Administration proclivity for operating like a police state caused major problems in the Department of Justice. [WaPo]

Greenwald and others have some justification for believing that unless this kind of outrageous violation of American civil liberties is punished future administrations may be tempted to replicate the literally unwarranted domestic surveillance of the Bush-Cheney Administration. After all, the entire point of punitive damages in civil law is to cause perpetrators to think several times before engaging in such practices. Olbermann, on the other hand, has recently emphasized the prospect that criminal prosecutions can be attempted to make the Administration minions divulge their participation. Both are ultimately seeking the same information: What did the Bush-Cheney Administration do? And, Who did it?

One possible political question then becomes: “Which deserves more emphasis: the punishment of the Bush-Cheney Administration and its minions (including the telecom corporations) for their violations of American civil liberties? Or, the prevention of this kind of unconstitutional and extra-constitutional behavior on the part of future administrations?” A person could argue that while the former is desirable, the latter is essential.

There is an argument to be made that if the price tag stapled to the legislation by the Republican Party for the prevention of future examples of such mis-administration is the immunization of their donors in the telecom industry, then this may well be worth the cost. After all, the telecoms haven’t paid out a dime yet – and will no doubt “fight like Exxon” to keep from doing so. If we may not ultimately have punishment, perhaps prevention will have to suffice.

Another argument worth considering is that the ultimate punishment for any politician or political party is to be so discredited by its actions and policies that the voters turn away from it in droves. The contention that after Operation Shamrock, Nixon's Watergate fiasco and the Bush-Cheney attempts at a police state, the Republican party and its candidates should never again be trusted to support the Constitution and the civil rights and liberties it bestows, harbors no small amount of validity.

This ‘solution’ requires more from each of us as citizens – that we keep the issue of privacy rights alive and contemporary, and that we demand that those who can keep us informed are protected with appropriate reporter shield laws, and similar 1^st Amendment and whistle-blower protections. Perhaps the most difficult part of this perspective is convincing others that “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigue of supporting it.” – Thomas Paine.

The FISA Fiasco

Irate as I am this morning about the votes cast by the Nevada congressional delegation in favor of the so-called compromise FISA bill, [rc 437] I’ll hold my fire for a bit. The rationales for passage run the gamut from total sellout to knee-buckling politicization of the whole domestic wiretapping issue. [CNN] Truth be told, that since most of the background briefings informing the votes were classified, we’ll probably never really know what transpired.

Although the retro-active immunity for telecom corporations is perfectly deplorable, there were some inclusions in the bill that the Republicans were loath to insert several weeks ago, including: exclusivity, targeting procedures, minimization procedures, individual judicial orders for surveillance of Americans, and reverse targeting guidelines. [WSJ] During the initial debates these inclusions were characterized as “already there,” “unnecessary,” or would “tie the President’s hands” by Senate Republicans. Although the Bush Administration obviously didn’t back down very far – it may have retreated more significantly than it realized? Consider the retroactivity portion as released by the GOP leadership:

“A district court hearing a case against a provider (1) will review, under a "substantial evidence" standard, the Attorney General's certification that certain providers either did or did not assist with the TSP. (2) In making that determination, the court will have the opportunity to examine the highly classified letters to the providers that indicated the President had authorized the activity and that it had been determined to be lawful. (3) The plaintiffs and defendants will have the opportunity to file public briefs on legal issues and the court should include in any public order a description of the legal standards that govern the order.” [WSJ]

(1) The Bush Administration, once quite insistent that there was no such program, will now have to certify that ‘yes indeed’ we asked the telecom corporations to violate American civil liberties in order to secure immunity for the corporations from civil liability.

(2) This section appears to eliminate the state secrets excuse the Bush Administration was using in the current civil cases. “Gee, your honor, we can’t tell you anything about the program – we’ll just assert that you can’t review it because it’s a big secret.”

(3) Filing public briefs puts the whole sad mess on the record, including the rationale – no more “secret memos” from junior members of the Justice Department?

(4) Unmentioned in the Republican release, which we might assume to be the one most preferred by the Administration, is any indication that there is any form of immunity from criminal prosecution.

(5) There is no immunity in the bill for government employees or public officials.

Putting items #4 and #5 together could be something of a trap for Bush Administration officials. In order to get retro-active immunity for their partners in the telecom industry the Administration must certify that the domestic wiretapping was requested. However, once they’ve admitted the request, should it be alleged that they engaged in illegal activities then they’ve just admitted their involvement.

Finally, returning to the inclusions listed above, any day dreams the Bush Administration might have had about continuing its Main Core data collection operations are now clouded by the act’s provisions placing the targeting, reverse targeting, and minimization procedures under the specific annual review of the FISA Court.

From the “Just Guessing Department,” one might infer that one major trade off was the inclusion of Senator Russ Feingold’s suggestions on exclusivity, targeting procedures, minimization procedures, individual judicial orders for surveillance of Americans, and reverse targeting guidelines in exchange for civil immunity for the acts of telecom corporations between September 11, 2001 and January 2007. As much as I’d personally like to see the major telecoms pay dearly for their participation in the Bush-Cheney Dark Side operations, the introduction of more precise limitations on executive authority are indeed welcome. It might also be a pleasant picture to see members of the Administration try to figure out how to assist their friends in the telecom industry without implicating themselves in future criminal prosecutions?

Congress about to cave in to telecom pressure: FISA "compromise" vote tomorrow

Those opposed to granting retroactive immunity to the telecom corporations for their participation in the Bush-Cheney Administration’s domestic spying operations are well advised to contact Nevada’s delegation because a “compromise” is in the wind.

CNN is reporting that House Majority Leader Steny Hoyer announced that a bill is forthcoming: “According to several Hill aides, the compromise would see a Federal court determine the existence of written notices given to phone companies from the administration saying the surveillance requests had been authorized by the president. If the court determined these notices did in fact exist, then the civil court cases would be prevented from proceeding.”

Senate Majority Leader Harry Reid (D-NV) and Majority Whip Dick Durbin (D-IL) have both indicated their opposition to the so-called ‘compromise’ measure, but have indicated that the bill would have a majority in the Senate. [CNN]

The EFF has called the measure “anything but a compromise,” and objected saying “Congress appears poised to needlessly toss the rule of law out the window and deprive millions of ordinary Americans of their day in court.” [EFF pdf] Glenn Greenwald has posted an excellent critique of this so-call compromise; a deal that gives every indication of having been drafted by telecom lobbyists.

The House of Representatives will likely vote on the bill on Friday, June 20th. [Politico]

Talking Points:

(1) The bill is unnecessary because any and all legal surveillance operations are fully covered under the present FISA statutes.

(2) The bill prevents cases already in the system from moving forward to resolution.

(3) The bill would give the cover of legitimacy to Administrative domestic surveillance programs that unconstitutionally impinged on the civil liberties of all Americans.

Contact links:

Representative Shelley Berkley (D-NV1)

Representative Dean Heller (R-NV2)

Representative Jon Porter (R-NV3)

Afternoon Clips: New G.I. Bill, Oil Giants, and other matters

** Senate Majority Leader Harry Reid (D-NV) issued his ‘Reid Report’ this week including his endorsement of the Webb-Hagel New G.I. Bill. Senator John Ensign (R-NV) has yet to sign on as a co-sponsor of this measure.

“This week, the Senate will consider an emergency spending bill to change course in Iraq and give our veterans and troops the support they deserve. I am particularly proud of the 21st Century G.I. Bill of Rights, which accomplishes one of the top Democratic priorities: ensuring that our support for the troops does not end with their tours of duty. The bipartisan G.I. Bill – cosponsored by more than half of the Senate, more than half of the House, and most of our nation’s leading veterans’ organizations – will give this newest generation of veterans the same opportunities enjoyed by World War II veterans. It helps a large and deserving group of young men and women readjust to the civilian life we enjoy because of the sacrifices they make. It rewards those who choose to serve in our military and will strengthen our economy. Providing our troops with access to a college education once they return home from Iraq or Afghanistan would cost as much over one year as the Iraq War costs in just 10 days.”

Updated information on the bill is available from the IAVA. VoteVets.Org responds to Senator John Cornyn’s accusation that “The anti-war crowd is determined to use our men and women in uniform for their political advantage, even if our national security is jeopardized in the process," saying: “Senator Cornyn's response to veterans is ignorant, insulting, and beneath his office. The GI Bill has nothing to do with the decision to go to war, or the course in Iraq, nor would it jeopardize security. The GI Bill was a sacred promise enacted by President Roosevelt, and all we are asking for is that America not default on that promise." Friedman added, "Further, to accuse veterans of using ourselves as a political football is pernicious and absurd. Apparently, veterans do not have the right to ask Senator Cornyn to do the right thing, or else we'll be smeared. At least we now know what Senator Cornyn thinks of those of us who served this nation in combat.”

OMB Watch’s Bulletin describes the political maneuvering: “On the other side of the capital, Democratic Senate leadership unexpectedly employed a parliamentary maneuver to strike approved Appropriations Committee domestic spending language and replaced it with a version similar to that of the House. A vote on the war spending bill is not expected until after the Memorial Day recess.”

** The Democratic National Committee has this to say about McCain and his entourage of lobbyists on the Weasel Wagon: “This past Sunday, John McCain defended the situation by telling reporters that his lobbyist advisers are "not in the lobbying business; they've been out of that business. And just yesterday, John McCain said he wants to have "the most comprehensive and transparent of any presidential campaign in history" when it comes to lobbyists. How can that be true when people like Charlie Black admit he's conducting his lobbying business on the back of the bus?”John McCain and his campaign can't have it both ways. On the one hand, he says "ethics and transparency are not election year buzz words." But, on the other hand, he and his top campaign advisors have no problem fudging about their lobbying records. When pressed on the discrepancy, they give a flip excuse: Americans don't care.” The DNC invites you to demonstrate your concern here.

** The FEC deal has broken down. “The Federal Election Commission will remain dormant for at least a few more weeks after private negotiations between the White House and Democratic Senate leaders devolved into a political standoff Wednesday.” [Roll Call, sub req] Senate Democrats could not get the Bush Administration to agree to a deal to impanel five nominees before Memorial Day, nor reach agreement on numerous other appointments to other executive agencies. Senate Majority Leader Harry Reid (D-NV) will likely keep the Senate in pro forma sessions over the break to prevent President Bush from making recess appointments to avoid confirmation.

Common Cause has weighed in with a letter to Senator Diane Feinstein (D-CA) on this subject.

** What we don’t know can cost us. Senator Claire McCaskill (D-MO) is closer to getting her “federal contractor misconduct database” bill (S. 3001 section 831) to the Senate floor, but lacking support from members of the Armed Services, Homeland Security, and Governmental Affairs committees she may have to restrict the access to the database to government officials. The House of Representatives passed a similar bill sponsored by Representative Carolyn Maloney (D-NY) that does not contain this restriction. [Gov Exec] The Project on Government Oversight [POGO] supports opening the database to the public.

Compare the previous restriction of public access to the massive surveillance program for “national emergencies” (Main Core) the Bush Administration is compiling to find out about the rest of us. [Think Progress]
More on Main Core from Radar Online, Cryptogon, Digby, FireDogLake, but where’s the Associated Press? Reuters? Washington Post? New York Times?

** If we’re bring freedom to the Iraqi people, then why did the U.S. Commission on International Religious Freedom release its May 2^nd report listing 11 countries of “particular concern,” noting that while Iraq wasn’t on the official list, “it (the commission) remains seriously concerned about religious freedom conditions in Iraq.” The Pew Center explains why.

** Economic diminution: (if we can’t say depression or recession, how about “diminution?) “Fed sees economy getting worse,” [CNN]

The Oil Bid’ness: “Crude takes the money and runs” [MrktWtch]

“New Report: “Oil companies’ record profits going to execs and stock buybacks, leaving energy alternatives behind” [HouseGW] The Oil Giants have spent about $10 million in research and development of renewables, about $76 million for executive compensation, and nearly $31.8 billion on stock buybacks. Meanwhile they’ve fought like badgers to keep $18.5 billion in tax breaks they are expecting to receive in the next ten years.
“House debates Renewable energy and job creation act” [Gavel]
“American Air to cut ‘thousands’ of jobs, capacity” [BNews] … and charge you for wanting to bring a suitcase. [Reuters] Guess what their overhead bins are going to be like?

The Mortgage Meltdown: “UBS sells subprime assets to BlackRock” [BusWk]
“UBS gets shortchanged” [Forbes]
“How mortgage firm Delta Financial Corp. collapsed” [Newsday]
“How government is like a subprime mortgage borrower” [Jay Hancock, Balt Sun]

Coffee and the Papers: Deals and More Deals

** Wonder what the “No Tax Grab” folks in Nevada are going to do now? The NSEA announced that it will drop efforts to raise the gaming tax by 3% in exchange for support from Wynn Resorts, Harrah’s Entertainment, and Station Casinos for an advisory question on the November ballot that would increase the room tax by 3%. Sheldon “Freedom’s Watch”Adelson has, no surprise here, not signed on, and continues his efforts to “divert room tax money from the Las Vegas Convention and Visitors Authority.” [LV Sun]

** The fallout from real estate foreclosures in Las Vegas means that even renting can be a dicey proposition. [LV Sun] The Center for American Progress does some fact checking on the Bush Administration’s handling of the mortgage meltdown. When the President says he won’t sign a bill that “rewards speculators” or “bails out bankers” someone needs to remind him, “Speculative real estate investors who purchased homes purely for profit, not shelter, and did not live in them are not eligible for program participation in any legislation now under consideration by Congress. Arguments that this legislation rewards speculators are specious.” [CAP] (emphasis added)

** Best line from the Nevada Democratic Convention: Dina Titus – “Jon Porter spends a lot of his time back in Washington playing in a rock 'n' roll band," Titus said. "I say we've heard enough of his same old song. It's time to change the music." [Erin Neff, LVRJ]

** Timing is everything? This week the EPA is defending agency guidelines for radiation health rules that remain incomplete, in preparation for submitting a construction application early next month. [LVRJ] The current occupant of the Governor’s mansion has filed a motion to remain ensconced during the D-I-V-O-R-C-E. [RGJ] “Waning tax revenues, withering housing markets, soaring gas prices, and shrinking employment” are combining for grim economic numbers in Nevada,” [RGJ] The Department of Administration ought to be awash in bill draft requests for the 75^th session because the deadline for submission was May 1^st. [BDR] And…The governor decides this is the best time to meet and greet members of our National Guard in Iraq? [LVRJ] Certainly, the men and women serving there deserve support from the homefront – however, the timing of the Governor’s trip certainly does bring questions to mind.

** What about the other McCain 2008 national finance co-chair? One has resigned already under the ‘new’ campaign rules about lobbyists, the other is Wayne Berman of Ogilvy Government Relations which represents Chevron-Texaco, the American Petroleum Institute, Reliant Energy, AIG, AmeriChoice, AT&T, Verizon, VISA and Motorola. [link] What better way to say “Bush III?”

** If you were thinking that a GOP administration might keep you safer, consider what could result from being swept up in Main Core during a period in which Continuity of Government operations were in place. Digby explains. Combine this bit of news with the mailer sent out by Charter Communications to 2.7 million customers announcing a new “web tracking program” that is essentially “the ultimate third party tracking network,” [SourceWatch] and Big Brother can track your every little cookie. Phom tried this in Great Britain and the consequent outrage over the privacy violations prevented ISPs from implementing the system.

** “Once more, with feeling,” a GAO study confirms that health savings accounts primarily benefit high income individuals. [CBPP]

** “Wages fall behind inflation for seventh month” [Economic Policy Institute] Home Depot reports a first quarter net income loss of 66%. [MrkWtch] Something to watch: “Pension funds and other institutional investors are driving commodity prices to the moon by allocating massive amounts of money to energy and agricultural investments and sidestepping regulatory limits on big speculative bets, according to research expected to be presented to Congress on Tuesday.” [MrkWtch]

** “The Bush administration is illegally withholding the details of its offer accepted by the European Union to bind more sectors of the U.S. economy to World Trade Organization (WTO) jurisdiction as part of a settlement relating to a WTO ruling against the U.S. ban on Internet gambling, Public Citizen contended today in a lawsuit filed in the U.S. District Court for the District of Columbia.” [May 19, 2008, full story at Public Citizen]

** While the Republicans focus on the relatively impotent figurehead Ahmadinejad in Iran, the real power is held by the Iranian Supreme Leader Ayatollah Ali Khamenei, who is the subject of a new Carnegie Report.

Spy vs. Lie: S. 2324 and the DoJ Inspector General's Report

While reading through the accounts of the FBI’s objections to so-called ‘enhanced interrogations’ (a.k.a. Torture) and the reports that the agency was concerned about participating in “joint interrogations of detainees with other agencies in which techniques not allowed by the FBI were used,” [TPMM-AP] pause for a moment and go back to a vote taken in the U.S. Senate on April 23, 2008.

“The Senate on April 23 approved, by unanimous consent, S. 2324, the Inspector General Reform Act of 2008. But the bill passed only after the lawmakers agreed to an amendment by Senator Jon Kyl, R-Ariz., which, among other items, deleted a provision giving the Justice Department's Office of Inspector General (OIG) jurisdiction to investigate misconduct allegations against department attorneys, including its most senior officials.” [NatlJrnl via TPMM] (emphasis added) Therefore, while Congress attempts to sort out who authorized the Bush Administration’s warrantless domestic wiretapping program, and perhaps who might have impeded investigations into the use of torture on detainees in U.S. custody, the Department of Justice’s Inspector General held he was prevented by statute from reviewing these matters. S. 2324 passed with “unanimous consent,” meaning no record was kept of each Senator’s position on the prevention of the DoJ’s Inspector General from investigating the investigators. The Kyl Amendment (CngRcrd-pdf/S3323) was also approved by unanimous consent. [CngRcrd-pdf/3328] S. 2324 is currently “held at the chief clerk’s desk” in the House. To make a long story short, it appears the only way to convince the White House not to veto the Inspector General Reform Act of 2008, was to insert Kyl’s amendment.

Whether the amendment will be a source of contention during deliberations in the House of Representatives remains to be seen, as will whether there will be conflict over a subsequent conference report. Items that Senate Democrats wanted to maintain in the bill (a shield for inspectors general from administration political pressure, and making audits and reports more accessible to the public) may have been protected by adopting the Kyl Amendment. However, there are significant differences between the Senate and House versions. The House version sets appointments at 7 year terms with removal only for cause, and would require independent watchdog bureaus to submit their budgets directly to Congress as well as the White House. The President promptly asserted that this provision would “encroach on the president’s constitutional authority.” [FAC]

So, tomorrow the Inspector General’s report will be released, [AP] [Reuters] and after the corporate press digests the material Matt Lauer may discover that more than just those in the “Far Left” are going to be concerned about the Bush Administration’s propensity to trample on American civil rights and liberties. One thing is certain – the debate over appropriate legislation, and the role of the current Administration in the perpetuation of injustices and the violation of civil liberties, may only be beginning.

Coffee and the Papers: Echo Chambers, Vote Suppression, and Respectful Campaigning

** Might someone in Nevada’s capital city want to offer Governor Gibbons some unsolicited, but well intentioned, advice about vetting nominees for positions BEFORE making a public announcement? After the Taxi Cab fiasco, the McCarran Airport Board bungle, the pro-Nuke member appointed to an anti-Nuke board, and the Homeland Security disaster – why would the Governor appoint someone to head yet another commission who has even a glint of controversy in their past. [LVRJ]

** One more time, here’s how the Right Wing Echo Chamber works:

April 20, 2008, Ahmed Yousef, chief political adviser to the prime minister of Hamas gave an interview on WABC radio, saying “We don’t mind – we actually like Mr. Obama. We hope that he will (inaudible word) the election and I do believe he is like John Kennedy, great man with a great principle, and he has a vision to change America to make it in a position to lead the world community; but not with domination and arrogance.” [StPeteTimes] If the inaudible word is “win,” which seems logical in the context of the sentence, then this is indeed praise for the Illinois Senator – including the comparison to former President Kennedy. However, ‘hoping for a win’ and “endorsing the candidacy of’ are two different breeds of political cats. Furthermore, “Hamas' praise for Obama is notable because the Illinois senator has repeatedly denounced the group. He has called it a terrorist organization and said it was a "bad idea" for President Carter to meet with Khaled Meshaal, the group's exiled leader.” [St.PeteTimes] The crucial differentiation and Obama’s denunciation won’t stop the GOP from simplifying the message as Senator McCain did five days later.

On April 25, 2008 Senator John McCain makes the unsupported allegation during a conference call that, “It’s just a fact that Hamas, apparently their North American spokesperson, is endorsing Obama. People can make their own judgment from that.” [WaPo] If Senator McCain were, in fact, running the ‘high minded’ campaign he claims, one above the old Lee Atwater tactics of yore, he might have noted that what Yousef provided was not an endorsement (as he himself received from Reverend Hagee) and that Obama had already denounced Hamas’ goals in the Middle East – but he didn’t and he probably won’t.

May 11, 2008: The echo chamber reverberated once more as Senator Joseph Lieberman (I-Lieberman) was interviewed yesterday on CNN. Lieberman noted Obama’s differences with Hamas, but quickly added: “But the fact that the spokesperson for Hamas would say they would welcome the election of Senator Obama really does raise the question, "Why?" And it suggests the difference between these two candidates.” [TPM] Not really, but it does suggest the difference between the two campaigns.

Should we expect more of this “high minded” campaigning when McCain shows up in Reno, an event tentatively scheduled for May 28^th? [INP] Something like what at least one GOP group has in mind: “Privately, some Republicans say they also hope to raise doubts about Obama's patriotism. McCain's TV ads stress his five years as a prisoner of war in Vietnam. One GOP operative, speaking on condition of anonymity, said strategists have proposed an ad picturing a series of Democratic politicians, all but one -- Obama -- wearing a U.S. flag pin?” [LAT] After doing no more to stop the racist “Wright Ad” in North Carolina than sending a voice-mail message; and not pressing the RNC to do more than send an e-mail, Senator McCain is perilously close to moving from a POW hero to a Swift Boat Admiral.

** Is this what the advocates of deportation had in mind? Yong Sun Harvil’s case should (but perhaps won’t) give pause to some of the more rabid anti-immigration advocates.

** No one in Missouri has any proof that illegal immigrants are voting, but that hasn’t stopped the GOP vote suppression machine from supporting a constitutional amendment that could easily disenfranchise thousands of voters. [NYT] Democratic presidential candidate Barack Obama has an event scheduled in Limbaugh-Land, the Oxycontin Kid’s home town of Cape Girardeau, MO while Clinton supporters still work for her candidacy in the Show Me State. [STL]

** Maybe McCain’s political adviser didn’t really mean to let the cat out of the bag, but one line in the Washington Post’s article today on McCain’s environmental position(s) tells it all: “Doug Holtz-Eakin, McCain's senior policy adviser, said the senator does not always please "environmental groups who are single-issue, litmus test" organizations. Instead, he said, McCain seeks to weigh the costs and benefits of each environmental issue. "Look, he always balances what are the environmental implications of these enterprises and what are the economic benefits that could come from them," Holtz-Eakin said. "That is, in general, an approach which may be harder to read than a flat ideological X or Y, but it's how he reads these things, it's how he evaluates these kinds of decisions." Yes, there it is, the old Bush “Cost-Benefit Analysis” approach to, well, everything.

** MessO’Potamia: “In Sadr City, a cease fire is put to the test, and fails” [NYT] Basra may be making some progress, “Drive in Basra by Iraqi Army makes gains” [NYT]

** “Sharif’s party pulls out of Pakistan government…plunging the volatile Muslim nation back into political uncertainty” [Reuters]

** A pale replica of the Contract (with/on) America? House Republicans issued a vaguely worded memo saying they will offer the “Change America Deserves” in a single agenda to be ‘kicked-off’ next week, in addition to an energy policy statement due out on May 19^th. [The Hill]

** The Big Easy: “Corps struggling over where to take property for pump stations” [NOLA] “Upriver project could threaten Pearl River wetlands” [NOLA] “Landrieu, Vitter support canal changes” [NOLA]

** War on ‘Terra: “Plea deal vanishes – six years after it began imprisoning terrorist suspects at Guantanamo Bay, the Bush administration finally hopes to present evidence against one of them at trial next month…” “Key official barred from trial at Guantanamo: A military judge barred Gen. Hartmann from participating because of conflicts of interest.” [WSJ] [Newsweek] “Domestic spying far outpaces terrorism prosecutions: As more Americans are watched fewer cases are made. The trend concerns civil liberties groups as well as some lawmakers and legal experts.” [LAT]

Civil losses and the Loss of Civil Liberties

The Las Vegas Review Journal published an article this morning that ought be make Representative Dean Heller (R-NV2) and other lawyer-bashing members of the GOP take another look at medical malpractice suits – but it probably won’t. The hepatitis alert, stemming from the re-use of vials and syringes at a Las Vegas, NV clinic that has some 40,000 people worried for their health, is at the center of proposed litigation, the pain and suffering awards for which are capped at $350,000. There used to be two exceptions to this cap: “gross malpractice,” and “exceptional circumstances.” Those two exceptions were closed by a ballot initiative, sponsored in part by the doctor who owns the clinic in question.

Those civil libertarians who found things like the Total Information Awareness Program and other data mining operations launched by the Bush-Cheney Administration uncomfortable won’t be happy to learn that the Department of Justice has a ‘new’ National Data Exchange (N-DEx) which is supposed to become a ‘one stop shop’ for federal law enforcement, counter-terrorism, and intelligence analysts to “automatically examine enormous cashes of local and state records for the first time.” [WaPo]

“Federal authorities have high hopes for the N-DEx system, which is to begin phasing in as early as this month. They envision a time when N-DEx, developed by Raytheon for $85 million, will enable 200,000 state and local investigators, as well as federal counterterrorism investigators, to search across millions of police reports, in some 15,000 state and local agencies, with a few clicks of a computer mouse. Those reports will include names of suspects, associates, victims, persons of interest, witnesses and any other person named in an incident, arrest, booking, parole or probation report.” (emphasis added) [WaPo] This could be one huge number of people.

An estimated 1.2 million adults aged 21 or over were arrested last year for DUI’s. [OAS] In 2005, about 29.5 American households per 1000 were victims of burglaries; about 116.2 were the victims of some form of theft; and, another 8.4 were victims of car theft. [OJP] Approximately 21 out of every 1000 American households were victimized by some form of violent crime. [OJP] At the end of 2006 there were over 5 million adult men and women under federal, state, or local probation or parole jurisdiction. [OJP] Every one of these, plus the perpetrators, witnesses, relatives, friends, and associates are now 'eligible' for inclusion in the Bush-Cheney Administration's Big File of "Interesting Americans?"

Therefore, if a citizen is an associate or relative of someone arrested, for example, a DUI, that person’s data becomes part of the Big File? Or, should a person be a victim of a crime, that individual’s information is inserted into the Big File? How many victims were there of the Enron and World Com criminality? If a person is a witness to a car-jacking that individual’s data is included – the police already have some difficulty getting witness statements – imagine for a moment the impact of a populace aware that by offering witness testimony personal data will be entered into the N-DEx mega-database? We could very quickly become a nation of individuals who see and hear nothing. One doesn’t even need to be a suspect in order to be entered in the list – being a person of interest will do nicely. A person would not need to be convicted, an arrest is sufficient, evidently even if the charges are later dropped. Would someone remind me one more time, how Republicans are the party of Small Government?

This is also the same Administration whose FBI admitted in 2007 that its agents repeatedly provided inaccurate information to win FISC approval for warrants, [WaPo] and about which it has just been reported: “The FBI acknowledged it improperly accessed Americans' telephone records, credit reports and Internet traffic in 2006, the fourth straight year of privacy abuses resulting from investigations aimed at tracking terrorists and spies.” [AP]

And, this from the same government that has all but wrecked the Privacy and Civil Liberties Oversight Board and the President's Intelligence Advisory panel [DB]; had the Bush-Cheney Administration previously demonstrated a sincere concern for the protection of civil liberties and the provisions of the 4th Amendment, then the discussion of this subject might have a distinctly different tone. However, this is the self-same Administration that advocates warrantless wiretapping, torture, secrecy, and extraordinary rendition - so, how are we to believe that this new version of domestic surveillance will be any more benign?

(Previous civil liberties posts: “Gibbons’ ConFusion Center” DB, “Fear is in the air” DB, “Link Mining” DB, “Big Brother…watching” DB, “Will Gibbons defend privacy rights?” DB, “Being Richard Falkenrath” DB, “Hayden’s can of worms” DB, “Who’s paying how much for your person information?” DB)

Sweet Land of What Liberty? Bush guts PIAB, PCLOB, and wants retroactive immunity

Citizens of Nevada, or Arizona, Utah, or Vermont for that matter, who took any sort of Civics class in high school, ought to be cognizant of the 4^th Amendment to the U.S. Constitution. That’s the one that says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons of things to be seized.” How do we know the government is adhering to these civil liberties?

First, the courts may hear arguments contending that a citizen’s rights have been violated in the course of a search; whether that search be an actual physical search of one’s person or property, or a search conducted by covert surveillance. However, what the Bush Administration is trying to do in regard to the domestic spying (aka “immunity”) issue is to remove that safeguard from the hands of the judicial branch. Should the Bush Administration, and its Republican allies, prevail in their efforts to secure retroactive immunity for the telecom corporations who cooperated with it in the early years of the domestic spying operations, then this facet of our Constitutional protections is hog-tied, with the judicial branch forbidden to hear cases in which the government may have trespassed into the private lives of its citizens. No checks, no balance.

Secondly, the government may from time to time establish oversight boards and commissions charged with investigating and reporting possible violations of civil liberties by government agencies. Here, too, the Bush Administration is attempting to diminish the capacity of commissions to safeguard the civil liberties specifically protected by the 4^th Amendment.

On February 29, 2008 the Bush Administration issued an Executive Order effectively gutting the powers of the Foreign Intelligence Advisory Board. [DKos] The post by Smintheus allows the reader to compare the 1993 Executive Order previously governing the jurisdiction and assignment of the President’s Foreign Intelligence Advisory Board with the newest version from the Bush Administration, which has changed the name of the commission to the “President’s Intelligence Advisory Board.” Conspicuously absent from the new version is the board’s duty to take charges of illegal activities directly to the Attorney General; also missing for the most part are the independent investigations. As the shell of its former self, the IOB may merely “review and respond to reports sent back to IOB by the Director of National Intelligence, who now acts as an intermediary for any complaints.” The foxes are now in charge of the henhouses.

The White House contends that this is simply to make the “process” more efficient, i.e. to have the intelligence agencies report to the DNI rather than to the Board. The Administration argues that legislation enacted in 2004 gives the DNI oversight responsibility for the legality of intelligence activities. [MSNBC] As with all too many other examples of White House “streamlining” this begs the ancient question: Quis custodiet ipsos custodies? Who is watching the watchers? If this recent example were the only foray by the Bush Administration into disemboweling oversight commissions it would be a poor thing indeed, but unfortunately it isn’t.

The sorry history of the Privacy and Civil Liberties Oversight Board provides a second, stark, example of the Administration’s disregard for the protection of civil liberties. The product of the 9/11 Commission recommendations, the PCOB has languished under the Bush Administration’s custody. President Bush appointed the first chair, Carol Dinkins, from among his cadre of Texans. She was his former campaign treasurer, and a law firm partner of former Attorney General Alberto Gonzales. Ted Olson, who won the “Bush v. Gore” case was also rewarded with a seat on the Board. The only Democrat appointed to the original board was Lanny Davis, who resigned on May 2007 in protest of edits made by the White House to the Board’s 2007 annual report to the Congress. [Wired]

When Congress enacted a bill in 2007 implementing the 9/11 Commission recommendations, it “reconfigured the oversight committee […] to make the board more independent of the White House, required it to be bi-partisan, and made it more accountable to the public.” [Wired] President Bush simply allowed the board to be vacated by not appointing new members as the terms of his original appointees expired. [Wired] While the President was arguing for new surveillance powers, and blasting Democrats for failing to offer telecom corporations immunity for domestic surveillance programs, all five positions on the oversight Board were sitting vacant.

Faced with mounting pressure from the Senate, President Bush has now offered three nominees to the Privacy Oversight Board. Daniel Sutherland, current civil liberties officer for the Department of Homeland Security has been put forth to fill the chairmanship. Sutherland was not assigned to civil liberties issues in the DHS, that charge is the responsibility of Chief Privacy Officer Hugo Teufel. “Sutherland’s main work at DHS involved convincing Muslims and minorities that DHS does not racially profile.” [Wired] Sutherland explained his duties within the Civil Liberties Office in a presentation to the Heritage Foundation in 2005 as part of a policy making operation focused on racial profiling, implementing processes such that the disabled could be promptly informed of terror threats, issues of refugee and asylum law, and the use of unmanned vehicles. His segment on oversight duties emphasized the role of the DHS Inspector General’s office, not his own. Sutherland’s resumé includes authoring “Religion in the Workplace,” and representing the first Cuban baseball player to defect from Cuba’s national team, dyslexic athletes suing the NCAA, and Casey Martin who sued the PGA for discrimination in the golf cart debate. [DHS] Sutherland argued in Religion in the Workplace that an individual wishing to put a “Jesus Saves” poster in his or her cubicle was perfectly free to do so as long as other adherents were permitted to hang their own posters. “To be sure, some employees will find the Christian message to be disrespectful, at least in intention. In this author’s judgment, this message in isolation in neither coercive nor degrading of persons of other faiths; but reasonable persons may disagree, and applications of respectful pluralism will have to be made in any particular setting.[…] “it is impermissible to forbid religious and other expressions at work” [Gbks] (p.176-177)

Ronald Rotunda, a George Mason University law professor has been nominated for a four year term. Among other, more professorial treatises, Rotunda provided the Cato Institute with an article on how Democrats were misusing the filibuster to prevent the appointment of ultra-conservative judicial nominees. [Cato] Rotunda also submitted an op-ed piece to the Washington Post arguing that Chief Justice John Roberts did not have a conflict of interest in the Hamdan Case. Rotunda also serves as a policy advisor to the Heartland Institute, [ExxonSec] The Heartland Institute, founded in 1984, is “anti-Kyoto” and “pro-privatization of public services.” In 2006 the Institute partnered with the National Association of Tobacco Outlets in a campaign to “change public opinion about tobacco.” Funding for the institute is from the usual gang: The Charles Koch Charitable Foundation, the John M. Olin Foundation, the Walton Family Foundation, and the ever-present Scaife Foundations. [SWatch]

Francis X. Taylor, who served during the Board’s inaugural term has been nominated for re-appointment. Taylor was appointed Chief Security Officer for GE in March, 2005. “Prior to joining GE, Mr. Taylor had a distinguished 35 year career in government service, where he held several senior positions managing investigations, security and counter-terrorism issues.” [PrivBd] Taylor testified to the Committee on International Relations subcommittee on the Western Hemisphere on October 10, 2001 presaging some arguments that have since become popular in nativist circles, for example: “The hemispheric threats of terrorism are now moving closer to home. Turning to North America, we are faced with a more diffuse and insidious threat: the threat posed by our open borders with our friends to the north and south.” [Yale]

The nomination of persons who evidently believe that “respectful pluralism” requires tolerating intolerance, who are tightly affiliated with anti-government and Scaife funded think tanks, and who see an “insidious threat” from our northern and southern neighbors, provides little comfort that the PCLOB will actually operate independently of the White House it reflects.

The Administration’s gutting of the purview of the President’s Intelligence Advisory Board, the appointment of Bushian followers to the Privacy and Civil Liberties Oversight Board (and still leaving two vacancies on that commission), and the blatant attempt to create retroactive immunity for those who violated the civil liberties of American citizens in domestic spying operations, provide three substantial reasons to declare the Bush-Cheney Administration’s position on the 4^th Amendment rights of citizens farcical – at least it might be farcical if it weren’t so deadly serious.

Parsing the President's Palaver: FISA legislation and the Great GOP Bogey Man

The President used his jolly pulpit today to continue the Administration’s message about the House version of the FISA bill that does not contain retroactive immunity for the telecom corporations. The question might be raised: For whom is this message intended?

Option One: Popular Consumption
If the President can keep reprising Senator Mitch McConnell’s refrain from the press conference prior to the Congressional break that the telecoms are fearful of the Great Bogey Man of GOP politics – the Trial Lawyer, then he could alter the framework of the issue. There is some verbiage in today’s press conference transcript that supports this, both in acts of commission and omission.

First, conspicuously omitted from the President’s references is the word ‘retroactive.’ In the 410 words of the President’s introduction to the subject of the FISA legislation, the word “retroactive” doesn’t appear at all, but “lawsuit” is used 7 times. The word “lawsuit” appears twice in his opening paragraph on the subject, and three times in the second. It shows up again twice in the third paragraph of the introductory remarks.

Secondly, there is a coda to this piece in the Q&A segment of the conference: “Now let me talk about the phone companies. You cannot expect phone companies to participate if they feel like they're going to be sued. (1) I mean, it is -- these people are responsible for shareholders; they're private companies. The government said to those who have alleged to have helped us that it is in our national interests and it's legal.(2) It's in our national interests because we want to know who's calling who from overseas into America. (3)We need to know in order to protect the people. It was legal.(4) And now, all of a sudden, plaintiffs attorneys, class-action plaintiffs attorneys, you know -- I don't want to try to get inside their head; I suspect they see, you know, a financial gravy train -- are trying to sue these companies. (5) First, it's unfair. It is patently unfair. And secondly, these lawsuits create doubts amongst those who will -- whose help we need.” (6) [WHPR] This response lends itself well to some parsing.

(1) “participate if they feel like they are going to be sued” As the President is well aware, the telecom corporations aren’t going to be sued – they are being sued, over actions that occurred via splitters in telecom industry facilities that did not differentiate between foreign and domestic transmission.

(2) “and it’s legal” Maybe so, maybe not. What the President would no doubt like is for the courts to capitulate and leave the legality of the domestic spying operations to the pronouncements of the Unitary Executive.

(3) “who’s calling who from overseas into America” This appears to be the same sort of rhetorical conflation that allowed the President to combine Saddam Hussein with the Al Qaeda attacks on September 11, 2001; i.e. a contention if made often enough in close proximity becomes a connected tenet. The question the courts are being asked to decide is if the transmissions by U.S. citizens on U.S. soil were rolled up in a wide and possibly unconstitutional surveillance sweep. There has never been an issue concerning the legality of eavesdropping on foreign transmissions.

(4) “it was legal” And, again, who says so?

(5) “financial gravy train – are trying to sue these companies” Here the President returns to the lawyer bashing argument, apparently oblivious to the fact that with a few notable and rare exceptions (which usually end up in front of ethics review boards) lawyers don’t make up cases – the cases are brought by those who feel they have been wronged.

(6) “create doubts” At this juncture it might be well to ask who created those doubts in the first place. If the Administration told the telecom companies it wanted their cooperation for a perfectly legal operation, and then the corporations found themselves in a morass of possibly unconstitutional transgressions against 4^th Amendment rights, then the source of the issue isn’t the legal profession, nor the whistle-blowers – the source of the problem is the Administration itself.

Option Two: Republican fund-raising effort cover

Kevin Drum’s post provides commentary supporting the notion that the President’s remarks are targeted to hit “two right wing hot buttons at once.” That is, that Democrats are “weak on terror,” and “slaves of the trial lawyer lobby.” A post at Think Progress notes that right wing has been on message about that “financial gravy train,” but cites a Roll Call article in which congressional conservatives are “grumbling and griping that their efforts to protect the telecom corporations “haven’t yielded more contributions from the industry.” “It’s quite discouraging,” said one GOP leadership aide, referring to the disparity in giving from the telecommunications industry in light of the FISA debate, but also the broader lack of support for Republicans from the business community in general.

“These companies just won’t do anything,” the aide said. “Even when you have the Democrats working against their bottom line.” [Roll Call sub req]

In short, it might be argued that the President’s comments today were designed to amplify the right wing talking points thereby offering more “cover” for congressional conservatives who may wish to plead for more corporate donations on the theory that the GOP is out to protect corporate interests from those icky trial lawyers.

Option Three: Both of the Above.

Quick Clips: Heller, Porter vote Nay on Housing

Members of the Nevada Congressional delegation had an opportunity to vote on improving the Operating Fund for public housing in the Department of Housing and Urban Development yesterday, (H.R. 974) with Representatives Heller (R-NV2) and Porter (R-NV3) voting against the measure; Representative Berkley (D-NV1) voted in favor of the bill. The bill passed 218-190. [rc 74] Heller and Porter also voted against appealing the ruling of the chair on H.R. 3521, the Public Housing Asset Management Improvement Act. The motion passed 218-195. Representative Berkley voted with the majority. [rc 77]

The Government Accountability Office has released a report, “Hedge Funds: Regulators and market participants are taking steps to strengthen market discipline, but continued attention is needed.”

Reports and Articles of Interest:

The Congressional Budget Office issued its “Presentation to the National Governors Association’s Health and Human Services Committee – The Outlook for Spending on Health Care and Long Term Care” this month. (pdf) The Kaiser Family Foundation has “Separating the Forest from the Trees in the Health Reform Debate” posted.

The Congressional Research Service updated its “Report for Congress: Election Reform and Local Election Officials – Results of two National Surveys” on February 7^th. (pdf) The Research Service report “Federal Pollution Control Laws: How are they enforced?” is also now available.

“It’s easy being green: Ditch the water bottle” has been posted by the Center for American Progress. “Old growth forests reducing climate change effects” American Lands Alliance

Voting suppression extraordinaire: “Mississippi’s ‘Reform’ Failure” by Myrna Pérez writing for the Brennan Center.

“White House wants immunity against state investigations too” Electronic Frontier Foundation

“Net operating loss measure under consideration in Senate has low bang-for-the-buck as stimulus: No justification for waiving PAYGO for the provision” Center on Budget Policy and Priorities

Depressing chart for the day: “Yearly change in real earnings, hourly and weekly” Economic Policy Institute

Nevada News roundup and blog notes at Blue Sage Views

A couple of questions for the RNCC sponsors of the Doom and Gloom Commercial

Did Nevada congressional representatives Heller (R-NV2) and Porter (R-NV3) chip in for the latest Doom and Gloom RNCC commercial for fear and terror – and the retroactive immunity for the telecom corporations? If so, then I have a double edged question:

If the telecom corporations are patriotic; and, if they assisted the NSA’s Total Surveillance Program out of a sense of patriotism – then why are they now demanding retroactive immunity before they cooperate further? If what they did in the first place wasn’t illegal domestic spying?

If the telecom corporations will only cooperate IF they are immune from suits contending that they have violated civil rights and liberties, then are they really as patriotic as portrayed by the Bush Administration, or were they just “in it” for the money?

There’s another double edged question:

If the NSA director and Attorney General are being honest that ‘intelligence has been lost because phone companies are balking’ then why would those telecom corporations be reticent to continue engaging in “perfectly legal” operations for which there are properly executed court orders? Unless, of course, they are reticent to continue operations for which there are NOT properly executed court orders?

The Protect America Act: Protecting Three Americans? Bush, Cheney, and Addington

Last Wednesday, February 13, 2008, Rep. Dean Heller (R-NV2) and 228 of his colleagues, mostly Republicans, defeated a proposed extension of the Protect America Act, H.R. 5349. [rc 54] On Saturday, February 16, 2008, the President called members of the Congress “irresponsible” for failing to renew the act saying, “we may lose a vital lead that could prevent an attack on America.” [SLTrib] As noted earlier, the President can’t have it both ways: If he wanted this ‘vital tool’ in place he could have had it easily by asking members of his party in Congress to support the extension. However, a 21 day extension wasn’t sufficient and maybe it’s time to ask why.

The President and his allies on Capitol Hil