I'm sorry. I know I'm probably making these thing too damn long,
but if I don't do it like this, I'm afraid something will get left
out...you know, like the Mainstream Media does every day. Today, Barack was in Powder Springs, GA to give a rousing speech on the Economy. While he was there, he participated in a town hall, and said this to the crowd:
"You're
not going to agree with me on 100 percent of what I think, but don't
assume that if I don't agree with you on something that it must be
because I'm doing that politically," he said. "I may just disagree with you."
Hey, blogosphere. He talkin' about you...
Clearly, he has disagreed with a lot of people on this very site about the FISA Legislation about to pass the Senate. I can't say I'm fond of the idea myself.
This
would normally be the part where I'd summarize the sad history of the
FISA Legislation, and how we call came to be here, but the New York Times did it so much better on Feb. 28th:
It seems to be we are having two different arguments about FISA, and getting them confused.
One is about Telecomm Immunity. The other is about the nature of FISA itself.
The Fourth Amendment of the United States Constitution, the thing that's supposedly being threatened 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 or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
No warrants...shall issue.
The
idea of wiretapping was probably beyond the foresight of the Founders.
Heck, the idea of attacking Skyscrapers with Airplanes (much less
Skyscrapers and Airplanes themselves) was beyond the foresight of the
Founders. I guess the question boils down to how do you feel about
Wiretapping possible or actual Terrorists in a secret court where no one hears the evidence against them, no probable cause is known, and the what started the wiretapping in the first place is never revealed. There is something terribly Orwellian about Secret Courts like that.
On the other hand, how else can it be done?
Let's
be honest, the strictest interpretation of the Fourth Amendment would
require Law Enforcement to present a warrant to the suspect in question
before wiretapping begins.
No warrants...shall issue.
"Hi,
Zacarias Moussaoui? We're from the FBI. You're under suspicion of
being a Terrorist Agent. We're going to start Wiretapping you now.
Here's your Paperwork."
You think that would be conducive
with good Law Enforcement or Intelligence work? Do you honestly expect
a criminal to maintain illegal behavior knowing the Government is
listening in?
Secrecy seems to be the only way to initiate this
kind of surveillance, while trying to follow the tenets of the Fourth
Amendment...would be to use a process similar the FISA Courts.
Not saying it's perfect. Just understanding how it came to be.
Senator Obama said this in his Blog post of July 3rd.
The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool,
and I'm persuaded that it is necessary to keep the American people safe
-- particularly since certain electronic surveillance orders will begin
to expire later this summer.
It strikes me that if
you are uncomfortable with wiretapping Foreign Agents, you may be
uncomfortable with wiretapping in general. You probably think all of
it goes against the Fourth Amendment. Maybe it does. On principle
your wariness is a very good idea. We should always be suspicious of
Government power. As a matter of practicality then, how do you then
stop terrorist acts before they happen? Because that's the idea. As
much as I appreciate the whole guilty until proven innocent thing, I've
thought about it, and I definitely want Terrorist acts stopped before
they're committed.
But then, aren't we prosecuting thought crimes, or pre-crimes, and--WHOOOAA!!
Okay. Brain freeze.
This is one of those arguments that would either get you really jazzed to be in Law School, or give you a splitting headache.
Since
splitting headaches are why I avoided Law School, I'm willing to admit
there's a Legal argument out there that I'm missed. I don't know the answer. I want our Intelligence Services out there, ferreting out the bad guys, and preventing attacks, but I want our Constitution preserved at the same time. It's hard to believe I'm asking to too much. I don't like how these surveillance taps are almost like Phishing.
At the same time, we're not just talking about surveillance on
Terrorists suspects, whether they're foreign or not, we're talking
about innocent Americans getting swept up in massive data grabs. Data
grabs don't strike me as sound Law Enforcement either. What if an
actual Terrorist tries to dial his contact, transposes the 6 and the 9,
and gets my home number instead? Does that mean Johnny G-Man is
listening to me?
Yeah, probably.
I know the Cops say they
need these expanded powers, but I don't necessarily believe them. 9/11
could have been prevented without wiretaps. Good detective work could
have traced the Hijackers to their flight schools. Tracing the money
would have helped also, as well as sharing the information amongst the
Intelligence Agencies. Civil Libertarians are right that we shouldn't
be scared into throwing away our Liberties, but at the same time we
can't blindly handcuff Law Enforcement. If the law is hampering the
way investigations are run, then the law should be changed.
I'm
not trying to rationalize Congressional action, or inaction. I'm just
trying to give you an idea of what honest politicians are wrestling
with. It's hard to see shades of grey when everyone is hellbent on
keeping it black and white.
There's an argument to be had over
the nature of wiretapping. None it seems, will be brooked over
Telecomm Immunity. After all, giving the Telcomms Immunity will be the
end of the Fourth Amendment.
Really?
I'm getting the feeling, y'all forgotten why we were against Telecomm Immunity in the first place.
Remember, we're not after the Telecomm Companies, we're after the Bush Administration.
Don't get me wrong. I wouldn't mind burning me some Telecomms. They're no friends of mine, especially those idiots at AT&T's Billing Department (three months to refund an online purchase my @#$$%).
But we're after Donald Rumsfeld, not Lynndie England.
We want Tony Soprano, not Paulie Walnuts.
The
idea has been universal to virtually every Mob movie ever made.
Getting Paulie Walnuts to rat out Tony is way more valuable than just
getting Paulie himself, as bad as a guy he was.
The Telecomms
are the Paulies in this equation, but they might need some
arm-twisting. The Civil Lawsuits hanging over their heads struck me as
a terrific way of doing that. But, according to John Dean Civil Immunity doesn't stop us from investigating the Bush Administration.
I
have taken a closer look at the House-passed bill and tracked its
legislative history. It is clear not only from the language of the bill
(which must be read in the context of other, related statutes to be
clearly understood), but also from the legislative history, that there is absolutely no criminal immunity for anyone in these FISA amendments.
In
addition, I spoke with the Washington office of the ACLU, which has
been following the legislation closely while trying to limit its
further rollback of prior protections of civil liberties. The ACLU agrees that there is no criminal immunity,
and while this fact had been largely overlooked, Legislative Counsel
Michelle Richardson said this point had been mentioned in passing in
both the House and Senate during the debate. With a little more
digging, I found that the sponsors, as well as the Bush Administration,
also understand that there is no immunity in the House-passed bill from
criminal prosecutions for violations by anyone.
The House-passed
bill has provisions virtually identical to many in the earlier
Senate-passed bill. No one in the Senate watches out for the best
interests of Bush Administration better than Republican Senator (and
former presidential candidate) Sam Brownback of Kansas. During the
January 24, 2008 debate in the Senate, Senator Brownback noted,
“The immunity provisions would not apply to the Government or
Government officials. Cases against the Government regarding the
alleged programs would continue. And the provisions would apply only to civil and not criminal cases.”
So, even if we don't get the Telecomms in Civil Court, we can go after them Criminally...
At the same time, no one in the Bush Administration has been granted immunity, period.
So, what are we angry about again?
Granted,
I'm not in love with this. Even John Dean described the legislation as
being "written on the hood of a car", and I don't like the idea of the Telecommunications Industry buying their way out of trouble.
But what's really at stake is what's going to happen next, because the resolution of this matter has been punted to January 21st. And it is here, that we have some hope.
What
I would want to do is to have my Justice Department and my Attorney
General immediately review the information that's already there and to
find out are there inquiries that need to be pursued. I can't prejudge
that because we don't have access to all the material right now. I
think that you are right, if crimes have been committed, they should be
investigated. You're also right that I would not want my first term
consumed by what was perceived on the part of Republicans as a partisan
witch hunt because I think we've got too many problems we've got to
solve.
So this is an area where I would want to exercise
judgment -- I would want to find out directly from my Attorney General
-- having pursued, having looked at what's out there right now -- are
there possibilities of genuine crimes as opposed to really bad
policies. And I think it's important-- one of the things we've got to
figure out in our political culture generally is distinguishing between
really dumb policies and policies that rise to the level of criminal
activity. You know, I often get questions about impeachment at town
hall meetings and I've said that is not something I think would be
fruitful to pursue because I think that impeachment is something that
should be reserved for exceptional circumstances. Now, if I found out
that there were high officials who knowingly, consciously broke
existing laws, engaged in coverups of those crimes with knowledge
forefront, then I think a basic principle of our Constitution is nobody
above the law -- and I think that's roughly how I would look at it.
That was Senator Obama on April 14, 2008. So what does he have to say now?
As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.
The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues.
The recent investigation uncovering the illegal politicization of
Justice Department hiring sets a strong example of the accountability
that can come from a tough and thorough IG report.
The ability to
monitor and track individuals who want to attack the United States is a
vital counter-terrorism tool, and I'm persuaded that it is necessary to
keep the American people safe -- particularly since certain electronic
surveillance orders will begin to expire later this summer. Given the
choice between voting for an improved yet imperfect bill, and losing
important surveillance tools, I've chosen to support the current
compromise. I do so with the firm intention -- once I’m sworn in as
President -- to have my Attorney General conduct a comprehensive review
of all our surveillance programs, and to make further recommendations
on any steps needed to preserve civil liberties and to prevent
executive branch abuse in the future.
But the dealbreaker for the Senator was this:
The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court.
Let's
say for a moment that the opponents of eliminating Telecomm Immunity
(of which I could myself as one) get what they want. Wave a magic
wand, and POOF! The FISA Compromise has been stripped of its Immunity
provisions, passed the House and Senate Conference, and signed by the
President. What happens next?
Uhhh...Nothing.
The Bush
Administration hasn't exactly been introspective, has it? The odds of
them investigating themselves rest somewhere at the intersection of
Diddly and Squat. I'm sure an Inspector General will face no shortage
of obstacles as well...at least, until the next President is sworn in.
Besides
that, the odds of getting the blue dogs to agree to a stripping of the
Immunity are low. Surviving a Presidential veto is even lower. (None
of this is any reason to back down).
Then there's the possibility of Pardons, but remember what Keith Olbermann said in his Special Comment of June 30th:
And
if you ask, Senator, about the President responding to all this by
belching out a series of pardons or a blanket pardon to those who broke
the law on his behalf, Dean has you covered here, too…
It… “would require acceptance by them of the fact that they had broken the law, and thus be an admission of guilt
“And
a blanket pardon would be an admission by Bush that his war on terror
has been a lawless undertaking, operating beyond the bounds of the
Constitution and statutes that check the powers of the president and
the executive branch.
“It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.
So,
best case, Immunity is stripped. Bush leaves office having done no
investigations of himself, but has been able to sign zero pardons,
leaving it for the next President to take up the baton.
Worst
case, Immunity is granted. The Civil Lawsuits go away, which is bad,
but still Bush leaves office having done no investigations of himself,
but signed zero pardons, leaving it for the next President to take up
the baton.
Why are we angry, again?
I'm sorry. Let me rephrase that. Why are we angry now??
Seems
to me that if we're going to get pissed, we're going to get pissed if
Obama is sworn in and doesn't pursue this any further. That could
happen. But what are the odds that the Double-Talk Express, should he
be sworn in, will follow through on these investigations?
I
remember watching Bubba's Transition in 1992? He had said throughout
the 1992 Campaign that he wanted to end the Army's ban on Gays in the
Military. I think he was serious about it, too. LGT was a strong
constituency for him during the campaign, and there was no reason to
let him down. During a transition presser, he was asked if he was
serious. He repeated that he was, and all of the sudden, the town shut
down. Everything became about Gays in the Military. The GOP had a
field day. Before he's even sworn in, his whole agenda for the country
was on the chopping block.
Do you want Obama to go through the same nightmare?
How much Political Capital is it worth spending when your overall goal of holding the Bush Administration accountable hasn't been taken off the table?
Remember:
If
I found out that there were high officials who knowingly, consciously
broke existing laws, engaged in coverups of those crimes with knowledge
forefront, then I think a basic principle of our Constitution is nobody
above the law.
If a President Obama starts his
investigation, the Republicans will dive on the tracks to stop that
Train from leaving the station. They will do everything in their power
(if necessary even stopping Iraq Withdrawal funding). And since there
are Democrats involved (Nancy, Harry, Jay Rockefeller for sure), they may not be alone.
If
there's a place that your anger is going to be needed, it's at that
moment. When Obama is sworn in and the Beltway Insiders tell him to
forget the investigations. You've got more important things to do,
forget about what President Bush did...or else. That's when the force
of this movement can best be felt. That's a better use of your anger
and your time. That's the time to shut down the Capitol Switchboard.
There is a time for the FISA fight.
The Fourth Amendment may have gotten beaten up, but it's not dead. It may have to wear sunglasses for a couple of months, but it's not dead.
Justice delayed may be Justice denied, but better late than never.
My sole issue is, and remains, ending the War in Iraq. Everything else is a distant second, including this crappy FISA Legislation.
There is a time for the FISA fight.
It just isn't now.
This article was originally posted at Fort McHenry.
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