FISA Fight: With all due respect, Madame Speaker

Nancy Pelosi held a conference call with bloggers this morning, and one of the issues discussed was the FISA fight and retroactive amnesty. TPMMuckraker reports:

In a conference call with bloggers today, House Speaker Nancy Pelosi (D-CA) made it clear that her highest priority for a surveillance bill was that it contain a so-called "exclusivity" provision -- a measure that would explicitly state that the bill would be the "exclusive means" by which the government would conduct surveillance, or in other words, the president does not have the power to ignore the law if he/she so pleases.

"Exclusivity is the issue," she said....

Pelosi says that she "absolutely" opposes retroactive immunity for the telecoms, but that she "didn't want the fight to be so focused there that we neglect exclusivity."

The problem with this reasoning is its short-sightedness. Exclusivity, the provision that states that only FISA and the criminal wiretapping statute provide the executive branch authority to wiretap, can be revisited next year with likely larger Democratic majorities in Congress and Democratic president. In fact, most of the provisions in the proposed legislation could be.

With one important exception: retroactive amnesty for the telcos.

Once granted, retroactive amnesty would be considered an acquired right. It couldn't be taken away. That toothpaste would be out of the tube forever.

•  Yeah, but they're leaving

  the possibility open of still caving.

  So it can't be the issue.

  by JoeW on Thu Mar 06, 2008 at 02:49:44 PM PDT

  •  Give and take

    The Democrats don't control 100% of the government and barely conntrol the Senate, they have to give some to get some. In order to reiterate a law that the people of this nation allowed the President to break for six years, they are being asked to give immunity...they don't want to.

    by nrafter530 on Thu Mar 06, 2008 at 02:57:21 PM PDT

    •  IOKIYAR

      Who is giving and who is taking?

      Dems have bent over for a power-hungry, downright criminal GOP since 2001.

      No more.

      by wanderindiana on Thu Mar 06, 2008 at 03:03:54 PM PDT

      •  They've only been in power

        since 2007...and there's been give and take, although you only really hear about the give.

        by nrafter530 on Thu Mar 06, 2008 at 03:42:50 PM PDT

      •  I am so sick of Pelosi; she's so big on words

        and their significance, like:

        culture of corruption
        draining the swamp
        off the table
        subpoena power

        and now she wants to bamboozle us by reframing (FOR us) exactly what it is we are fuming mad over.

        I simply do not trust her.
        She is not an honorable person.
        She listens to no one,
        in particular her constituents.
        Talk about BUSH's lack of curiosity: She has zero curiosity about how her constituents in San Francisco feel - about anything.
        She reprimands progressives when they take the fight right to GWB (Peter Stark)
        She's a complete Decider of her own, while denouncing the very same behavior in Bush.
        She does not respect that WE respect the Constitution.

        And without a doubt she was briefed on the SBC/AT&T domestic spying apparatus installed in downtown San Francisco in 2001 -- just about 20 blocks from her district office.

        In the same way that she was briefed about torture usage -- and approved it, then publicly decried it; it would be hard to believe she was not also briefed on spying equipment that would be installed right in the heart of her district.

        Is there really any wonder about why she and Dianne Feinstein are so dragging their heels on retroactive immunity -- ultimately voting for it? to me it's clear. Were AT&T to be sued, without retro immunity in place, documents would likely be produced that SHOW that she and Feisntein knew about this the whole tikme... and even if not the WHOLE time, then most certainly long before the NYT ran their long-delayed story, and long before the SBC employee on Folsom Street in San Francisco followed his conscience and blew a whistle in the top secret NSA room, and the filtration and sifting equipment installed inside (per the diagrams he also produced when he blew the whistle).

        We have liars trying to "manage" us... and how perfect for Decider Nancy to spend some time with bloggers --- to gently reset our expectations, so we are not all upset when she ultimately caves to retroactive immunity -- to save her own ass from exposure.

        They disgust me -- yes -- as much as Bush does.  because they are the opposition party, and have the ability to ACTUALLY drain the swamp and end the "culture of corruption" -- yet they actively choose not to. beyond shame.

        by rhfactor on Thu Mar 06, 2008 at 05:03:32 PM PDT

    •  The Dems have already given enough. The media

      message should be, that we have already come half way to resolving the whole issue. We have gone all the way to protect the American people. The only remaining issue is granting 'Scooter Libby' type justice for the paid for patriotism of two rogue telcoms who didn't know right from wrong (as long as they were paid to).Qwest Communications knew right from wrong, they are not asking for immunity. Keep it simple in simple terms.

      by geez53 on Thu Mar 06, 2008 at 03:17:07 PM PDT

      •  That's the point I think they're making

        by not voting on this...we've given all we're willing to give.

        by nrafter530 on Thu Mar 06, 2008 at 03:42:02 PM PDT

        •  I know and agree, my point was the media message

          that i'm NOT seeing enough of on any outlet. Short, simple, repeated often by everyone. We, here, are given to longer disertations with much detail and we take the time to digest all. Not so in the Gen Pop MSM.

          by geez53 on Thu Mar 06, 2008 at 04:08:49 PM PDT

          •  yeah well the MSM is a problem

            it's all primary all the time nowadays.

            Anyway, I had an interesting debate with someone on the other side over Facebook on this. I got nowhere. I kept arguing about right and got the "What about my right to stay alive?" crap. As long as it's framed as "You'll die if Congress doesn't give Bush what he wants" we're going to have a hard time winning. Congress outperformed my expectations on this so far.

            I'm amazed in a country founded by people willing to stand up to the most powerful empire in the world and face certain death in the very likely event they lost because they wanted to send someone to London to decide whether or not they should pay more for tea, Americans think it's perfectly ok to be made the fool by a bunch of third-world country fanatics with plastic knives. For Christsakes, if the goddamn British Empire couldn't take our rights away, you really think a bunch of crazies from the Arabian Desert will?

            by nrafter530 on Thu Mar 06, 2008 at 05:21:48 PM PDT

            •  Whenever some comes at me with that nonsense...

              ...I direct them to the Center for Risk Analysis at Harvard.

              They have a nice stat there indicating that the risk of dying from some kind of "terrorist" incident is orders of magnitude less than the risk of being struck by lightening.

              And then I ask whether their willing to give up the rights that thousands of Americans have died to protect because of their Bush-induced phobias.

              They usually see the light.

              (I'm helped by this because many of them are friends who know where I was on 9/11.)

              by maxschell on Fri Mar 07, 2008 at 02:13:36 AM PDT

    •  All they have to do is nothing

      and they leave what's left of FISA in place.  Do nothing, Madame Speaker.  Do nothing.

      by leveymg on Thu Mar 06, 2008 at 04:18:56 PM PDT

      •  that shouldn't be hard for her to grasp

        by rhfactor on Thu Mar 06, 2008 at 05:05:40 PM PDT

      •  Where's the do-nothing Congress

        when you need it?

        by bornfdup on Thu Mar 06, 2008 at 06:39:47 PM PDT

    •  If they pass nothing

      there's no immunity, no blanket warrants, and exclusivity.

      The "emergency,' loss of authority to tap calls between (mostly) Canadians, while not protected by the 4th Amendment but only by Statute, is something less than an emergency. If there's reason to think particular transiting calls or emails are terrorism related, there's still a FISA warrant process available.

      It only takes one chamber to pass nothing.

      by ben masel on Thu Mar 06, 2008 at 05:36:26 PM PDT

      •  Yeah, they won't do that

        because if there's a terrorist attack, then say goodnight. The GOP will beat us to death with this. Being in NYC, some nutjob bombed a military recruiting station, in response a member of my family, a Democrat, told me over dinner "And that commercial said the Democrats in Congress won't renew that program that would stop these people. Why won't they?"

        I responded, effectively, but I can only do one at a time.

        by nrafter530 on Thu Mar 06, 2008 at 07:54:20 PM PDT

        •  Is there any evidence

          that wiretapping EVERYTHING would have prevented it?

          by ben masel on Thu Mar 06, 2008 at 08:04:36 PM PDT

          •  No, but there doesn't have to be

            Americans so easy cower to fear, you don't need evidence, you just need to convince them that the Democrats will get you killed. It's a very easy and simple argument to make and letting FISA expire makes it easier. It's a political risk they may make, but I won't be shocked if they don't.

            by nrafter530 on Thu Mar 06, 2008 at 08:17:18 PM PDT

            •  So political expedience trumps the Constitution?

              by ben masel on Thu Mar 06, 2008 at 08:47:09 PM PDT

        •  Why don't you respond with

          It was REPUBLICANS who let the PAA expire?

          Why didn't Democrats go on the offensive after the PAA expired? How absurd is it that Republicans argue the PAA is vital to national security, allow it to expire, then blame Democrats -- and Democrats accept that blame without fighting back?

          Why the hell weren't the Dems on offense. The second the PAA expired they should have been the ones making the scary ads! Instead they are being blamed for what Republicans did.

          by Margalis on Fri Mar 07, 2008 at 01:16:17 AM PDT

          •  They don't own the media. n/t

            by bfitzinAR on Fri Mar 07, 2008 at 07:06:52 AM PDT

  •  a bunch of old

    a bunch of old people who havent a clue about things such a personal VOIP.  What a fucking joke.

    Do they actually think terrorist would use long distance att for their carrier?

    wtf

    its such a fucking joke.  Anyone with any tech skill AT ALL could set up a VOIP, and the government would never even know it exist.  My god even if you are bone stupid, how hard is it to join a MMO, and just create a private chat setting? YOu really think in games that are all about destruction and killing you could tell what anyone was evn talking about anyway if you were able to tap ever source of communication in the world.

    Its all just beyond stupid.

    by dark daze on Thu Mar 06, 2008 at 03:01:12 PM PDT

    •  Yes, you are correct.

      Oh, and they are not going to make a bomb look like a shoe or a bottle of water now, either.

      by dnamj on Thu Mar 06, 2008 at 03:03:20 PM PDT

    •  nevermind voip

      The backdoor key has to be submitted to Bush co.

      It's encrypted VP tunnel + H.323

      what they gonna do? start cracking every encrypted bits on the fiber?

      by opedn on Thu Mar 06, 2008 at 03:17:33 PM PDT

      •  I use a "book code from pp 183"

        Simple algorithym, unbreakable unless I use it twice, since it's a rare book. (Porugese translation of Walden?)

        Obviously, bin Laden uses AT&T and speaks English slowly with an emphasis on his ennunciation.

        There's no other reasonable excuse for BushCo to tap every electronic communication that they can access.

        Is there?

        by SecondComing on Thu Mar 06, 2008 at 03:33:25 PM PDT

        •  Datamine everything, only tap the hits.

          by ben masel on Thu Mar 06, 2008 at 05:04:37 PM PDT

          •  you are missing

            you are missing the point, you cant data mine everything, thats what we are saying.  Second year IT students know how to create channels through the internet noone will know exist accept those in it.

            by dark daze on Thu Mar 06, 2008 at 06:28:51 PM PDT

            •  I aint missing a thii-ii-iing

              Cryptography is highy overrated.

              I can build a code where the best they can decipher includes amongst 1000 potential hits is:

              "Angels breath Italic Penis"

              In and of itself, that could be code-words for:

              Angel, breath my Finnish..

              See?

              by SecondComing on Thu Mar 06, 2008 at 10:27:53 PM PDT

              •  yeah yeah

                obfuscation and one time pad is part of cryptographic system. duh ... But obfuscation alone is even weaker than numerical method (which vpn is based on.)

                by opedn on Fri Mar 07, 2008 at 08:17:59 AM PDT

  •  They are caving

    just looking for a way to do it without looking like total sell out/industry whores.

    1. according to Bush we should have been attack 50 times between expieration of patriot act and today.

    2. Offer Bush administration extention of current FISA until next administration come in or no deal at all.  (worst case scenario)

    3. declare without ambiguity that Bush administration and their crew cannot be trusted with civil liberty, fighting terrorism or not being corrupt. Nevermind the lying and incompetence.

    ------

    Amazingly, the economy is collpsing into deep recession while the dollar is down 20% in the past few months.... and they didn't do jack. People loosing houses and jobs... they didn't do jack.

    but they have time discussing FISA for months and months on end.

    And the WAR is still going on exactly like when these clowns was elected to stop the war. Nothing changes.

    Projected budget deficit this year -$400+

    WTF?

    Shouldn't they all get kicked out of office instead of keep making excuses?

    by opedn on Thu Mar 06, 2008 at 03:12:58 PM PDT

  •  Hey McJoan . . . .

    I've monitored your posts over the last several months on this issue, and I can't help but come to the conclusion that your interest here, above all else, is to present the Democratic Party and its big mucky-mucks in the best light possible in this fight . . . . even though they will inevitably sell out the Constitution and the progressive cause.

    For example, what you and others have called "capitulation," I call "collaboration."

    The Dems are just as much a part of the power structure and just as much controlled  by corporate interests as the Republicans are.  That, and they also believe in the "surveillance state," that exists to monitor the people . . . just in case they get any ideas about fighting the power structure with anything more than votes.

    Nancy Pelosi is nothing but "shuck-and-jive" bullshit.  After her decision to "take impeachment off of the table," it's a wonder that anyone with a grain of integrity or the ability to see reality takes ANYTHING this woman says seriously.

    by LivinginReality on Thu Mar 06, 2008 at 03:48:47 PM PDT

    •  a bit to harsh

      A couple points. The Dems, some of them, are the ONLY ones standing up on this issue at all so not all of them can be called Quislings as the Republicans can. Second, this sites main purpose is to get Democratic Party Members elected so to be as tough on them as you would wish could defeat the purpose of dkos as well as giving too much ammo to those on the Right that have and will quote what is on the Frontpage here.

      Our choices are limited, join the Right, Stay with the Dems and work to change things to the way we want them, Rebel, or move. Most of us here have made the choice the work for the change we want from the inside, and that won't happen if we constantly insult those we want to make allies.

      by SmileySam on Thu Mar 06, 2008 at 04:09:30 PM PDT

      •  Well, in essence that's an interesting appraisal

        In other words, what you are saying is that progressives here have no choice but to play nice-nice with the Dems in the hopes that the Dems throw them a few bones every once in a while . . . . provided of course that those bones don't interfere with the overall pro-corporate/pro-imperialist/quasi fascist bi-partisan consensus that prevails in D.C.

        I submit that NOTHING fundamental will ever change in this country with this approach.  Instead, the netroots will just be another interest group, who's concerns and agendas will be coopted by the system, and then siphoned off into a place of complete irrelevancy and oblivion.

        Hate to say it, but I really am believing that NOTHING fundamental will change in this country through the electoral system, for the system is rigged in favor of the status quo, and is suspectable to too many powerful, pro-stutus quo interests being able to manipulate it to their advantage.

        by LivinginReality on Thu Mar 06, 2008 at 04:24:39 PM PDT

        •  playing nice is relative

          I get just as mad and frustrated as you do. Progressives will never be able to do much on their own. Once we accept that we begin to look for allies that we are willing to work with knowing their flaws, warts and all. That doesn't mean we like them or will quit working to change them.

          The anger and venting is needed and healthy, but not productive when trying change things. You already know all this I'm sure.

          by SmileySam on Thu Mar 06, 2008 at 04:51:07 PM PDT

      •  2 House Republicans

        Tim Johnson of Illinois, who voted against, plus Ron Paul, who missed the original vote on Protect Act

        by ben masel on Thu Mar 06, 2008 at 05:42:17 PM PDT

    •  The Democrats are the only ones we've got

      any sway with.

      We burn all of our bridges and we have no influence with them at all.

      My interest here, above all, is to influence policy debates progressively. I don't appreciate your implication that I'm not acting honestly here.

      by mcjoan on Thu Mar 06, 2008 at 04:24:03 PM PDT

      •  Newflash:

        by LivinginReality on Thu Mar 06, 2008 at 04:25:55 PM PDT

      •  Newflash:

        You have NO influence with them already.

        You only have the ILLUSION of influence.

        You're just another interest group to them, that they can say nice words to when it suits them, and then they can betray . . . in favor of the interests of their corporate paymasters.

        by LivinginReality on Thu Mar 06, 2008 at 04:27:17 PM PDT

        •  The fact that this debate

          wasn't lost in December, or January, or February sort of shoots that theory of yours to hell. The netroots and grassroots fight on this has extended it.

          Be a part of it or not. I couldn't give a damn. Just don't accuse me of not acting in good faith on this blog on this issue.

          by mcjoan on Thu Mar 06, 2008 at 04:40:41 PM PDT

          •  Not exclusively Dem grassroots

            While the effort coming from libertarians and Libertarians has been disappointing, it hasn't been negligible.

            I have to imagine, too, that the Open source community's generated a fair share of the contacts to Dem Members to date.

            by ben masel on Thu Mar 06, 2008 at 05:47:43 PM PDT

      •  Did "Blanket Warrants' come up on the call?

        by ben masel on Thu Mar 06, 2008 at 05:58:50 PM PDT

    •  I'm all for calling out faux-fighters for

      progressive causes... but you are completely off-base when it comes to mcjoan. I find this astounding:

      come to the conclusion that your interest here, above all else, is to present the Democratic Party and its big mucky-mucks in the best light possible in this fight ... what you and others have called "capitulation," I call "collaboration."

      Now I happen to believe in part 2 of the excerpt above -- that pelosi and feinstein and reid have collaborated with the neocons in looking the other way while provision after provision in our Constitution gets assaulted and gutted.

      But I have also followed mcjoan's postings on FISA -- and -- i'm not religious but -- thank god she HAS been following every twist and turn of this disasterous "retro immunity" winding road. She, above all others, has been diligently keeping this matter before our eyes. And I for one have not read her postings as trying to protect the likes of Pelosi.

      Now me, I'm way over the top in my open disgust for my own COngressional Representative in SF. So I have no motive to reframe mcjoan's tracking of this issue. To me she has been the only blogger here who has brought me any relief whatsoever from this Democratic  Opera of tragic proportion.

      So, I ask you, do you really stand by what you said above? or were you -- maybe -- taking your frustrations out on the messenger? (please don't do that)

      by rhfactor on Thu Mar 06, 2008 at 05:15:59 PM PDT

•  FISA already had exclusivity.

  The only reason it doesn't now is because Congress refuses to make W accountable the EXISTING LAW.

  by beemerr90s on Thu Mar 06, 2008 at 02:50:25 PM PDT

  •  that is, "to the existing law".. n/t

    by beemerr90s on Thu Mar 06, 2008 at 02:51:26 PM PDT

  •  Exactly. And now, in order to tidy things up

    they'll be happy to hand exclusive immunity, because God forbid Bushco should throw a tantrum and call Democrats soft on terra.

    by Lisa Lockwood on Thu Mar 06, 2008 at 02:52:44 PM PDT

  •  wonder if exclusivity clause will be added to all

    laws to make sure bush knows he needs to obey the law.:)

    by Patriot Daily News Clearinghouse on Thu Mar 06, 2008 at 02:53:43 PM PDT

    •  It is becoming...

      a bit rediculous!! Perhaps they need to start putting in an extra paragraph that says, "Yes George W. Bush this also applies to you". It makes about as much sense!

      by reflectionsv37 on Thu Mar 06, 2008 at 02:56:24 PM PDT

      •  And then he'll signing statement it away

        Because that's just the kind of guy he is!

        by mataliandy on Thu Mar 06, 2008 at 07:09:51 PM PDT

    •  Amendment XXIIX

      We really, really mean it.

      by Simplify on Thu Mar 06, 2008 at 03:06:17 PM PDT

  •  They can't

    they can't punish him for breaking a law nearly half the country and half the Congress doesn't think he's breaking.

    Anyway, if they weren't at least trying to stop amnesty, this would've passed already

    by nrafter530 on Thu Mar 06, 2008 at 02:54:52 PM PDT

    •  If he isn't breaking the law

      why is there a need for immunity for his co-conspirators?  One doesn't generally need immunity for legal activity.

      by beemerr90s on Thu Mar 06, 2008 at 02:58:03 PM PDT

    •  What?

      I don't believe it matters what the country "thinks"!

      by reflectionsv37 on Thu Mar 06, 2008 at 02:59:13 PM PDT

      •  see my comment below

        if the public isn't willing to take action against a President, Congress won't do anything. There just isn't a strong enough movement within the people to punish him. There's a "eh whatever" attitude about him doing this.

        by nrafter530 on Thu Mar 06, 2008 at 03:44:54 PM PDT

        •  Exactly what action

          does the public have to use against the President? Aren't the members of Congress supposed to be the leaders?

          by bornfdup on Thu Mar 06, 2008 at 06:56:01 PM PDT

          •  Eh

            not really...they're legislators. They way our government is set up, they can only be leaders when it's popular as they have to face their districts every two years. Legislators are usually not good leaders, which is why so few advance into executive roles. Good leadership means sometimes taking an unpopular opinion, which legislators rarely do and when they do, they lose. The ones who are good leaders are the ones who lose or have a hard time getting reelected (Max Cleland) unless they're in a state or district where the people agree with them 99% of the time (Feingold, Dodd, Wexler), but even they bend to popular opinion every now and then. Don't forget Dodd voted for the war, Feingold put Roberts on SCOTUS.

            The real leaders are, or should be, in the executive branch. Which is why I think it's worrysome that our next President is coming out of the Senate...although I think Obama is better fit to be Governor of Illinois.

            Furthermore, as for actions? Sadly, at this point the only action that will wake people up is the complete demise of our freedoms. We have been fortunate to not have experience tyranny and dictatorship in our country, or even been close to it. The downside is that we take it for granted. The idea of losing our freedoms is so crazy that we liberals must be overreacting. It'll never happen here.

            by nrafter530 on Thu Mar 06, 2008 at 07:49:40 PM PDT

      •  yes it does - if the country doesn't think

        he's breaking the law, there will be no court cases after he leaves his protective office (and we get an AG in who isn't a Bush lapdog).  As long as the country knows he's breaking the law, even if his office (and his brown-shirts in Congress) protect him from indictment now, it will happen later.

        And lay off Pelosi - she's right about impeachment - it would do nothing but give Bush's defense team a Senate acquittal to put under a judge's nose with a request to dismiss the case.

        by bfitzinAR on Fri Mar 07, 2008 at 07:19:34 AM PDT

    •  That's the worst argument I've ever heard

      It doesn't matter if it's popular to break the law.  If you let someone off the hook because he's "popular," then the whole idea of the rule of law (which, by the way, is the very foundation of a democracy) is subverted, and becomes meaningless, and his successors then have an open field to do what they want.  Read my letter above.

      by wolverinethad on Thu Mar 06, 2008 at 03:05:37 PM PDT

      •  it matters

        when you need the votes in Congress to punish him. As the Republicans have political cover, he gets away with it.

        by nrafter530 on Thu Mar 06, 2008 at 03:43:34 PM PDT

  •  It's in the Wiretap Act.

    
    TITLE 18 > PART I > CHAPTER 119 > § 2511
    (1) Except as otherwise specifically provided in this chapter any person who—
    (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

    FISA warrants are "specifically provided."

    by ben masel on Thu Mar 06, 2008 at 02:59:36 PM PDT

  •  What you said.

    That's one of the things that drives me crazy about this issue. Exclusivity is already in the law, and it has been there for decades. And if there weren't a FISA at all, there'd be no statutory authority for this type of surveillance, which makes the exclusivity argument moot anyway.

    Exclusivity is a red herring. Pelosi is using it to distract us. She can, to coin a phrase, go to hell.

    by catfood on Thu Mar 06, 2008 at 03:01:43 PM PDT

    •  Sounds like it worked....

      The bloggers get called to the principals office and then what?  

      by dkmich on Thu Mar 06, 2008 at 03:04:38 PM PDT

  •  She knows it. So what did you guys say to her?

    Did you ask her how stupid we look?  We all know the telcoms already have their immunity and that this one is for Bush.   Insult to injury.  bull shit.

    by dkmich on Thu Mar 06, 2008 at 03:03:10 PM PDT

    •  My question too - Did anyone push the immunity

      issue?  Gawd, I hope so - I'd hope it was the first question asked.  What was her response?

      by lineatus on Thu Mar 06, 2008 at 03:39:09 PM PDT

    •  EXCELLENT Question!!!

      Yes, do tell, MCJoan:

      What sort of "conference call" was this?  The kind where the kool kidz all get a secret dial-in number to get put on a mute-only line, and you get to listen to Nancy blow smoke up your ass*s about how great the netroots are and how we need to keep fighting hard to get more members of Team Nancy/Steny into Congress this November?

      Or alternatively, if instead it actually was what I think of as a "conference call" where the conversation is more than just a (unidirectional) glorified radio broadcast, then what WAS her response when those of you on the call with any sense of moral and journalistic integrity challenged her on her bullsh*t?

      by packerland progressive on Thu Mar 06, 2008 at 05:16:07 PM PDT

      •  Blanket warrants going forward?

        by ben masel on Thu Mar 06, 2008 at 07:02:17 PM PDT

  •  Making things illegal isn't enough

    Congress needs to create a new category: "doubleplus illegal."

    Clearly when people aren't following the law the solution is to make those things extra illegal rather than actually enforcing the law.

    When Bush violates the new exclusivity (as he did the old one) they can go ahread and pass "super duper exclusivity" then declare mission accomplished.

    by Margalis on Thu Mar 06, 2008 at 03:40:21 PM PDT

    •  Is that like

      double secret probation?

      by beemerr90s on Thu Mar 06, 2008 at 03:41:38 PM PDT

  •  EXACTLY RIGHT WTF can't they just enforce the law

    as it stands?

    FISA, which is still the law of the land, as far as I know, has always had exclusivity.  That was the whole point of passing the law in the first place!

    They're just allowing criminals to run roughshod over the law and the Constitution.

    Same thing with torture: torture is, and has always been, illegal in the United States.  Suddenly we've got a flurry of activity trying to redefine it into legality seemingly for no other reason than to provide retroactive immunity for the thugs in the executive branch.

    It's all of a piece and it sickens the soul.

    by Mad Kossack on Thu Mar 06, 2008 at 04:14:15 PM PDT

  •  there are good arguments otherwise

    You should at least account for the fact that the Administration, and every appellate court that considered the question, say otherwise.  The Supreme Court, which to date has left the question open, see United States v. United States District Court, 407 U.S. 297, 308 (1972) ("the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."), ultimately may disagree, but don't ignore the actual arguments.

    by No Oil for Pacifists on Thu Mar 06, 2008 at 07:20:13 PM PDT

    •  Wrong

      With regards to the opinion quoting Truong you conveniently lopped off the very next sentence which gives lie to your argument. I've seen that exact same passage replicated time and time again by right-wingers, each reaching identical wrong conclusion. (You guys must all copy and paste from the same talking points)

      The legal opinion you cited, which you clearly failed to read in full, argues that FISA actually extends the power the of the President:

      "The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."

      That's the very next sentence. Let me translate that into simpleton: without FISA laws the President actually has LESS power. ("Amplify" meaning "to increase")

      None of that is relevant to what the case finding establishes anyway. The case is a finding on whether the FISA court can impose restrictions. It is not a decision on the constitutionality of FISA laws or warrantless surveillance.

      I'd like to see you quote an actual Court case, not a National Review column, where the FINDING of the court case is that the President can perform warrantless wiretapping on US citizens.

      I won't hold my breath.

      Let me repeat that: you claim courts have found that the President can perform warrantless wiretapping on US citizens. So show me the court case that finds that.

      by Margalis on Fri Mar 07, 2008 at 01:50:35 AM PDT

      •  Not so

        The "next sentence" does not undermine the argument.  The issue is whether Article II, Section 2 of the Constitution grants the President the power to conduct warrantless wiretaps of foreign intel national security information, the question specifically reserved in Keith.  Your argument that "without FISA laws the President actually has LESS power" is flatly wrong:  If the Administration is correct, then Congress could not by statute eliminate this power, nor could a President by signing legislation relinquish such power--otherwise mere statutes could "amend" the Constitution (see the discussion here).

        The "next sentence" is relevant to the authority of the case.  Yet, regardless of whether the discussion in In re Sealed Case (slip op. at 48) was dicta (a 2000 case from the Southern District of New York includes similar language, United States v. Bin Laden, 126 F. Supp. 2d 256, 264 (S.D.N.Y. 2000)), it quoted the Truong case, 629 F.2d 908 (4th Cir. 1980), which in turn correctly characterized all court of appeals cases to that date as having affirmed Presidential power under Article II.   Many of those cases are cited and quoted here.)  Yes Truong and the cases it cites were pre-FISA, but again, if the President is correct that Article II supplies the authority, FISA could not alter that.

        Again, please deal with the actual argument.

        by No Oil for Pacifists on Tue Mar 11, 2008 at 07:35:50 PM PDT

    •  And also

      You are quoting dicta, as your own blog commenters pointed out. (And you ignored) And you are not quoting it correctly at that.

      You say that the "question is open" but until struck down the law is the law. FISA says it is the exclusive means to perform the domestic(key word)surveillance it covers.

      That's how it works. Laws are laws. Clinton may have said that he could ignore FISA laws but he never argued that in court. Similarly Bush has never made that argument in court either, only in press releases. If the Bush administration thinks that FISA is unconstitutional it could argue that in court - it hasn't.

      The key point you are missing here is that the President has the power to perform surveillance but "the people" have the right to be free from warrantless, unreasonable search.

      When the court (that you quoted) says that the President has the power to perform surveillance and that FISA "amplifies" that power the meaning is that FISA amplifies that power by providing domestic surveillance methods in a way that at least approach a traditional warrant and are therefore constitutional. The implication is that approaching a traditional warrant is the lowest possible bar, and any lower is unconstitutional due to what we call the "Bill of Rights."

      If you truly feel that FISA is an unconstitutional restriction on the President argue it in court.  It's been around for decades and hasn't been struck down or even really challenged. Curious.

      by Margalis on Fri Mar 07, 2008 at 02:12:23 AM PDT

      •  law may be the law, but Constitution trumps law

        See my comment above--if the President's view of Article II is upheld, FISA is not exclusive no matter what Congress declares.  Congress may amplify the power of another branch by delegation, but may not subtract it.  That requires a Constitutional Amendment.

        The argument is not that FISA is unconstitutional--just non-exclusive.  President Clinton's Justice Department made that argument, as did President Bush's Attorney General.  As far as I'm aware, the Administration has not changed its view--rather, the abandonment of the TSP just over a year ago mooted the argument.

        by No Oil for Pacifists on Tue Mar 11, 2008 at 07:49:30 PM PDT

•  My letter to Pelosi and Hoyer

  Dear Speaker and Majority Leader,

  I have written on this issue many times, not to you personally, but publicly, on several different blogs of both political persuasions.  The laws are clear, and the Supreme Court has been clear about warrantless domestic wiretapping, namely, that it is illegal, unconstitutional, and against American tradition.

  An unchecked executive branch gets itself in trouble.  While Richard Nixon and this current president are the most obvious examples, this has also happened with Democrats such as Lyndon Johnson and John F. Kennedy, and other Republicans such as Dwight Eisenhower.  All the named presidents approved warrantless, illegal wiretaps of domestic political enemies, suspected spies, and even journalists, with Nixon attempting the logical endgame, which was the bugging of the DNC's offices at the Watergate.

  Congress is, under our system, the strongest branch of government, deliberately made this way by our Founders to protect us from an overzealous executive abusing their powers.  Sadly, with the Republican Congresses of 2000-2006, President Bush had unfettered control of our political system, because they refused to do any meaningful oversight.  In that time, he admittedly spied on Americans without warrants to allegedly catch alleged terrorists.  No court reviewed his evidence, no Congressional committee held hearings and obtained documents, and everyone, by their inaction, took the President's word that he used these powers judiciously.

  We learned from Vietnam, Watergate and Iran-Contra that accepting a President at their word on national security matters is a recipe for abuse.  This Congress, the ones which you lead, was elected to change that, and when faced with defiance from this president, you meekly sat down and gave him his way.  Instead of fighting back hard, you gave him his way on Iraq funding, on the U.S. attorney probe, and on all other oversight issues.  The President, who has been on a record tear of sub-40% approval, has been allowed to control the debate.  

  Worst of all, you took impeachment, the last resort for a renegade president, "off the table," in your words, Speaker Pelosi.  By this action, you gave the President the go-ahead to flip you off and do what he wants, which is what has happened for the past 15 months.

  This is one of the most important issues America will face in this century.  It is the difference between a democracy and a fascist state.  I do not choose these words lightly.  Retroactively approving illegal actions by a president, and giving immunity to those who aided and abetted him in those illegal actions would effectively render Congress powerless.  Your subpoena power (which has been treated as meaningless by the Bush adminstration), your contempt powers, all of them would mean nothing, because you would already have validated the sort of activity that your Constitutional power was designed to stop.  All that would be left is impeachment, and if you give away your other powers, would a future president even obey an impeachment conviction?

  You may see this as one political battle, but it's not.  It is a battle over this nonsense of a unitary executive, something never mentioned in our Constitution, the Federalist Papers, or any of our Founders' writings.  The unitary executive was another figment of the President's imagination, one that has been coddled for too long.  It is time for Congress to reassert its Constitutional primacy and tell this president that he gets nothing else.  It is March 2008, and in ten months, we will inaugurate a new president, and only then should Congress consider any changes to wiretapping law, and in no way should warrantless wiretapping, bypassing of the FISA court, or immunity be considered.  Changes to reflect technological change are fine, changes to give a lawless president his way are not.

  This is a test.  Americans will reward a Congress that stood up for its rights, and history will judge you kindly for doing the right thing.  If you capitulate, though, then, you will go down in history as one of the worst Congresses ever for your complete failure to rein in a President's lawlessness in his last days in office.  It will be an unforgivable crime against this great republic, and despite your fears of Republican attack ads, such action will still cost you your seats, because those who elected you will clearly remember you broke your promises, and treat you as such for it.

  I thank you for your time, and I urge you to stay strong.  There are millions who support you, and by properly framing this issue, and showing Americans that this is about their basic rights, and not about the terrorists, America WILL stand behind you.

  Sincerely,

  Thad *****

  by wolverinethad on Thu Mar 06, 2008 at 02:50:42 PM PDT

•  Question on this:

  Once granted, retroactive amnesty would be considered an acquired right. It couldn't be taken away. That toothpaste would be out of the tube forever

  I'm guessing you are right, but can you say what the authority is?  I think the constitution has rights against ex post facto laws.  But I also think Congress has in the past granted a right to sue for past torts when the statute of limitations has passed, for instance.  This seems more like the latter than the former.  Do you case law?

  Not that I disagree on the issue.  As a practical matter it would be much harder to take it away than to grant it, even if it could be done in principle.

  Thanks.

  by mvr on Thu Mar 06, 2008 at 02:52:18 PM PDT

  •  Ex post facto clause applies only to crimes

    Telecom immunity is retroactive, but it does not impose a criminal penalty. It's extremely bad policy but not a violation of the ex post facto clause.

    by Dump Terry McAuliffe on Thu Mar 06, 2008 at 03:00:35 PM PDT

    •  Right, That was my point. It does not seem like

      the ex post facto clause could govern civil immunity. So I was asking for what the legal basis for the claim that immunity could not be reversed. I'm not meaning to cast any doubt on it.  Just to learn more.

      by mvr on Thu Mar 06, 2008 at 03:04:26 PM PDT

      •  Immunity from civil actions

        becomes personal to the corporations and thus a right that can't be taken away.  That's the theory anyway.  I'm not so sure that this applies in the civil arean and can't be legislated away--however it is a real trap.  It's an even worse trap as the immunity sought is really a shield immunity for Bush, and this gets to being a gnarly mess if immunity has to be fought out for years.

        No immunity!  I want exclusivity too, but not at the cost of losing immunity.  Exclusivity can be dealt with much more easily.

        by Rolfyboy6 on Thu Mar 06, 2008 at 03:08:58 PM PDT

    •  Why?

      Why does it only apply to crimes?  

      While there's plenty of case law supporting what you say, there's nothing in the Constitution that insinuates that, is there?

      by Hiro on Thu Mar 06, 2008 at 04:05:56 PM PDT

      •  It not only applies solely to crimes,

        it applies solely to "capital crimes" - crimes that were serious enough to warrant the death penalty (or the lopping off of limbs) back in the day.  (5th Amendment)  These days that would be the serious felonies - 20 year to lifers.  That's why, if someone if arrested on multiple counts of one or more felonies, they don't charge/try him for all of them at the same time, just in case he manages to "get off" they can hit him with the rest of them, since they can't "bring in new evidence" or whatever to try him again for the first lot.

        by bfitzinAR on Fri Mar 07, 2008 at 07:36:29 AM PDT

  •  That was supposed to be do you know of case law?

    by mvr on Thu Mar 06, 2008 at 03:05:30 PM PDT

•  If we aren't going to enforce the current laws

  why even bother writing new ones?

  by MagisterLudi on Thu Mar 06, 2008 at 02:53:02 PM PDT

  •  In fact, it's worse to write new ones

    because it carries on the pretense that anyone enforces laws (on Bush/Cheney and their cronies) to begin with.

    by Simplify on Thu Mar 06, 2008 at 02:58:07 PM PDT

  •  Because more of the great unwashed needs to

    be in prison.  1 out of a 100 apparently isn't enough.  

    by dkmich on Thu Mar 06, 2008 at 03:06:08 PM PDT

•  Sorry, I meant do you know of case law? n/t

  by mvr on Thu Mar 06, 2008 at 02:53:13 PM PDT

  •  Here's the main case

    I posted below that I think mcjoan is wrong - retroactive immunity can be retroactively repealed.  Here's a link to the Supreme Court's main case on retroactivity.

    http://supreme.justia.com/...

    It's complex, but I think most scholars would agree that if the immunity is retroactive, then it can also be repealed.  See if you agree after reading this tome (don't miss Scalia's concurrence - it's actually one of his more intelligent contributions to our jurisprudence).

    by Ho Ho on Thu Mar 06, 2008 at 03:44:06 PM PDT

•  How many times does Speaker Pelosi

  intend to shovel us shit and expect us to lap it up?

  She's gone to bat to stab us in the back over and over and over again.

  She's the Speaker of the House and if she doesn't want shit legislation to come up for a vote, it wouldn't make it to the floor.

  How many times are we going to kicked in the teeth before we realize that she isn't on our side?

  This kind of bullshit happens because she chooses to allow it.

  End of story.

  by MichiganGirl on Thu Mar 06, 2008 at 02:55:10 PM PDT

  •  Your comment is the honest truth.

    I can't stress it enough.  She WANTS to do this.

    by Heartcutter on Thu Mar 06, 2008 at 03:05:42 PM PDT

  •  MG!

    You have a way with words!!

    by reflectionsv37 on Thu Mar 06, 2008 at 03:06:36 PM PDT

  •  She assumes we have no alternative but her party

    That attitude on the part of Pelosi and the rest of the "leadership" on Capitol Hill is arrogance on stilts and some day will backfire on them and their party.

    by Dump Terry McAuliffe on Thu Mar 06, 2008 at 03:07:15 PM PDT

  •  Amen, MichiganGirl.

    Nancy Pelosi is objectively pro-lawbreaking. She is not in any way shape or form obeying her oath of office. She deserves to be run out of Congress on the same rail that should be used to run Bush/Cheney out of Washington.

    She is their ever-vigilant friend and protector.

    She prays for them every night.

    She needs to be stripped of her Speaker's gavel and sent to the back benches.  In fact, so do a whole hell of a lot of other "democrats".  

    We need some rows of benches in the front of the Congress that remain empty at all times to symbolize the seats that should be held by Congressional representatives who actually believe in honoring their oath of office.

    by Mad Kossack on Thu Mar 06, 2008 at 04:24:39 PM PDT

•  Don't count on a Democratic sweep in the fall

  HRC is going to blow up the party, if it comes to that, to make sure she's on the top of the ticket. By the time the convention adjourns, she'll be damaged goods (she already is on Iraq) and her candidacy will do immense harm to downticket candidates.

  Even if she's elected, don't count on her to protect our civil liberties: she might act just like Bush, claiming limitless executive authority to protect "security moms" from terrorists.

  by Dump Terry McAuliffe on Thu Mar 06, 2008 at 02:58:54 PM PDT

  •  I guessing from your comments

    that you haven't or won't vote for Hillary in the primary, right?  ;)

    by gooderservice on Thu Mar 06, 2008 at 03:00:42 PM PDT

    •  Are you reading between the lines?

      I thought it was a rather neutral comment. </snark>

      by dnamj on Thu Mar 06, 2008 at 03:01:56 PM PDT

    •  Actually, I'm from Michigan

      We had a "primary" with Obama and Edwards not on the ballot that was held in violation of DNC rules. So basically I didn't vote because there was no real primary.

      by Dump Terry McAuliffe on Thu Mar 06, 2008 at 03:04:43 PM PDT

      •  That stinks that you weren't able to

        have a legitimate ballot and be able to vote legitimately like I was in my state.  Talk about not fair.

        I'm curious... seriously of what you think of having a do-over in Michigan.  Maybe you're written your thoughts on this elsewhere here, but I haven't read it.

        by gooderservice on Thu Mar 06, 2008 at 03:08:57 PM PDT

        •  I favor a caucus held under 2004 rules

          I also think that every party official who inflicted this train wreck on us should step down, and that Senator Carl Levin be censured for his role in bringing this about--and his defense of it, even to this day.

          by Dump Terry McAuliffe on Thu Mar 06, 2008 at 03:10:29 PM PDT

          •  I like your idea

            of the party officials stepping down. I saw one of them -- sorry, can't remember their name -- a while ago on Washington Journal explaining their reasoning behind it.

            It sounded "good" but at the same time, I knew it was disenfranchising voters, so it wasn't good.

            In a way, though, I liked that some people were fighting the "norm" when it came to the order of states voting.  But to have it work out like this wasn't good at all.

            I hope, I hope, I hope that the primary rules are drastically changed for the next presidential race.  Hopefully, it will be an incumbent running then and that will give everybody a chance to work out the kinks in the new plan that year.  (Democratic incumbent.)

            by gooderservice on Thu Mar 06, 2008 at 03:24:32 PM PDT

  •  This is why everything must be done

    to ensure she isn't the nominee.  Under no math can she finish the primaries with more delegates, so as the second-place finisher, she should sit down and shut up.  Obama has the majority of delegates, of states, and that should be that.  I really hope that he can find a way to cream her in Pennsylvania, because that will end her argument once and for all.  

    And no, I'm not sanguine about her being President.  I mean, saying she's better than McCain means about as much as saying that Rice Krispies are better than Count Chocula, or something as inconsequential as that.  

    by wolverinethad on Thu Mar 06, 2008 at 03:02:46 PM PDT

    •  "Everything?"

      The ends justify any means?

      I've found that the most offensive words in all of political discourse are "shut up."  All we have here is speech, and that's supposed to be free.

      by Simplify on Thu Mar 06, 2008 at 03:10:07 PM PDT

      •  Everything that is reasonable

        Like NOT allowing her to strike backroom deals to screw Obama, like pressuring the delegates to follow the judgment of the voters, like making sure the whole world knows Obama won more voters, more delegates, and more states, and that means that WE think he should be our nominee.

        I'm saying she isn't going to win the most votes or delegates under any formula, so she needs to stop acting like she won or should be the winner.  It's the height of hubris.

        And no, the ends don't justify the means in our world, but to the Clintons, it does.

        by wolverinethad on Thu Mar 06, 2008 at 03:43:17 PM PDT

    •  DITTO ON THE cOUNT cHOCULA!

      by ezdidit on Thu Mar 06, 2008 at 03:25:47 PM PDT

      •  Does every diary have to turn into

        a candidate war? Sheesh, people. Meanwhile, back to FISA.....

        by mcmom on Thu Mar 06, 2008 at 04:46:17 PM PDT

        •  /snark!

          by ezdidit on Fri Mar 07, 2008 at 05:38:51 AM PDT

•  Exclusivity is a red herring

  By emphasizing how passionate she is about exclusivity, Pelosi sucks some of the oxygen out of the passionate opposition to retroactive immunity for the telcos.  Smart move.

  But the real point is to hold her feet to the fire.  Give in to Bush on FISA & telco immunity, and you'll be primary'ed, Nancy!  And you, too, Hoyer!

  I'll open my wallet.

  by amitxjoshi on Thu Mar 06, 2008 at 02:59:28 PM PDT

  •  Probably not the place to mention it...

    but I've donated to Cindy Sheehan already! Pelosi may be very unpleasantly surprised how many votes Sheehan may actually receive!

    by reflectionsv37 on Thu Mar 06, 2008 at 03:04:34 PM PDT

    •  Hmmm...

      Well, it isn't a presidential race, so I guess it doesn't rise to the level of Naderism.

      But still, puffing up Sheehan to spite Pelosi isn't what I'd support.  Surely in all of San Francisco we can find a decent Dem challenger to Pelosi!

      by amitxjoshi on Thu Mar 06, 2008 at 03:08:22 PM PDT

      •  I think Pelosi...

        is starting to realize that her "base" is not at all happy with her these days. I think that may have something to do with her recent statements on FISA and contempt charges against Bolton and Miers going forward even after Bush leaves office.

        She should take a close look at the money that has been flowing into Obama's campaign. The very same thing could happen to someone who runs against her!

        by reflectionsv37 on Thu Mar 06, 2008 at 03:17:48 PM PDT

  •  Red Herring=Shiny object

    Telco immunity = rule of 2 laws....
    One for corps and another for citizens....

    Now look over at the bright shiny red herring called
    exclusivity.

    NO.  Do not give in to Bush on FISA and telco immunity.

    Consequences, Nancy. Consequences.

    by portorcliff on Thu Mar 06, 2008 at 03:15:59 PM PDT

•  Translation

  "didn't want the fight to be so focused there that we neglect exclusivity."

  Translated to: "'Exclusivity' is the most important issue and in order to obtain that, we'll have to overlook the immunity and vote for it, even though I'm against it."

  My interpretation:  "As Speaker of the House, I'm not strong enough to stop immunity, so I'll cover it up with something else to make it look good.  And I'm off on vacation.  Have a good time."

  by gooderservice on Thu Mar 06, 2008 at 03:00:01 PM PDT

  •  Exclusivity's a fake issue, as it's already law.

    If amnesty's to be traded, swap it for something substantive.

    by ben masel on Thu Mar 06, 2008 at 03:05:41 PM PDT

•  I'm not sure that Immunity couldn't be revoked.

  I don't think Acquired rights are totally irreversible.

  by dnamj on