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I'm a former criminal defense appellate attorney.  Most of my cases turned on constitutional issues: search and seizure, interrogation methods, ineffective assistance of counsel, police and/or prosecutorial misconduct, and the like.  The issues that dominate the news and the blogosphere today are the issues I worked with in the grit and grist of real defendants, real victims, real crimes, real facts.

So please bear with this pragmatist and follow over the jump as she explores why this FISA bill is, to quote the Bard, "sound and fury, signifying nothing."

Folks, if you think FISA is the last bastion of the Fourth Amendment, I have bad news for you.  If FISA is indeed the last bastion, the Fourth Amendment is already gone.  The current bill will not fix the problem, no matter whether telecoms are given the affirmative defense of acting under color of law.  The problem exists in the USA PATRIOT Act, not in FISA.

First a bit of history on FISA.  The act was passed in 1979, in the wake of the Church Hearings and other congressional action that exposed and shut down the FBI's COINTELPRO domestic spying program.  From the late 1940s through the early 1970s, the FBI was spying on tens of thousands of American citizens, with little or no oversight.  What began as a search for communist inflitrators widened into surveillance on political groups, right and left, that were seen as threats.  After Watergate and the end of Nixon's "imperial presidency," as it became apparent that the FBI had been used as a tool to stifle dissent, Congress put an end to COINTELPRO with a series of statutes that forbade electronic surveillance except by means of a search warrant.

But the intelligence agencies argued - persuasively - that this left a gap in terms of intelligence-gathering on foreign agents operating in the U.S.  Having to go to an ordinary judge, many of whom have only minimal security vetting, and lay out specific "sources and methods" information to get an intelligence wiretap warrant, might compromise the security of those "sources and methods."  In some instances, it might put the lives of informants and other assets at risk.  The intelligence agencies argued that they needed another, more secure way to gain such warrants.

And thus was born FISA - the Foreign Intelligence Surveillance Act - and the very first secret court in our nation's history.  Yes, the FISA Court is a secret court.  FISC judges undergo full security vetting, because they will have access to "sources and methods" material, the factual allegations constituting probable cause for a FISA warrant.  The affidavits for FISA warrants are classified.  The subject cannot see the affidavit, nor challenge its factual basis in court.

And that seemed reasonable, because the original FISA specified that no information gained by means of a FISA warrant could be used in a criminal prosecution.  There was a "wall of separation" between the intelligence-gathering and law enforcement sections within the FBI.  The former was to investigate foreign espionage cases; the latter was to investigate crimes and gather evidence for prosecution.  And because FISA warrants were not reviewable in a trial court, the two were not allowed to mix.

That ended with the USA PATRIOT Act.  The consensus, after 9/11, was that the plot might have been stopped had the intelligence and law enforcement agencies been able to share information.  Foreign-trained and -financed terrorists acting in the United States do seem to pose a special case, as they are not "spies," but rather are plainly "criminals."  Thus the USAPA took down that "wall of separation," allowing information gained from FISA warrants (and other classified intelligence methods) to be used by law enforcement agencies and in criminal prosecutions.

And that, my friends, is a death blow to the Fourth Amendment.  Consider the following scenario:

Your telephone number pops up several times on the call list of someone the FBI believe is involved with Al Qaeda.  The FBI go to the FISC, and ask for a warrant to wiretap your telephone.  The wiretap reveals nothing about terrorism - turns out they were wrong number calls - but the FBI do hear you talking about who will bring the weed to your backyard barbeque.

Based on that, the FBI get a warrant to raid your home on the day of the barbeque, and in they swoop, charging you with possession with intent to distribute.  That's a felony.

"What gives you the right to storm into my back yard?" you ask.  The FBI agent presents you with the warrant, and its affidavit, and you see that they've been wiretapping you.  "What gives you the right to spy on my phone calls?" you demand.

"We have a FISA warrant," the agent answers.  And off you go to trial.

At trial, your attorney moves to exclude the search warrant that let them into your backyard, on grounds that you're not a terrorist, there is no conceivable evidence to suggest otherwise, thus no FISA warrant should have been issued, thus the wiretap is illegal, and all information gained from it is "fruit of the poisoned tree."  But there's a problem:

Not even your trial judge can see the FISA affidavit.  It is classified, "sources and methods" information.  The prosecutor can show the judge that a FISA warrant was indeed issued, but that's as far as it goes.

Because you can't see the factual allegations underlying the FISA warrant - not even the trial judge can see that - you cannot challenge the validity of that warrant.  It's not reviewable.  Not at trial.  Not on appeal.  Not ever.

Which means they could have said anything they wanted.  They could have had only the flimsiest pretext of probable cause.  They could even have lied outright.  You'll never know, so you can't challenge it.

Oh, and the FISC has refused fewer than five of the tens of thousands of warrant requests submitted, in the past 19 years.  The FISC is, quite literally, a rubber-stamp court.

This is the "protection" offered by FISA.  This is the "constitutional safeguard" so many of you are so up in arms to preserve.  It is no safeguard at all.

Your constitutional rights exist only so long as you or your lawyer can challenge their violation in court.  If FISA is the last bastion of the Fourth Amendment, the Fourth Amendment is already a dead letter.

In terms of constitutional safeguards, the current FISA bill is a non-issue.  Yes, it allows telecoms to raise "color of law" immunity as an affirmative, threshhold defense.  And yes, that means the telecoms very likely will never be held to account for violations of FISA.  But the secrecy of FISA warrants themselves voids the Fourth Amendment, if information gained from those warrants can be used in a criminal trial.

I'm convinced that Barack Obama recognizes this.  I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases.  I'm sure Barack Obama realizes that this petty knoll is not "the hill to die on."

"The hill to die on" is the USAPA's breaking down the wall of separation between intelligence-gathering and criminal investigation.  And that is not even at issue yet.  We'll need a Democratic president, and at least 60 Democratic senators, to fight that battle.

So please, folks, let's keep this bill in context.  If you're counting on FISA to safeguard your Fourth Amendment rights ... they're already gone.

UPDATE:  Thank you all for making this my first Recommended diary, and more important, for contributing your voices to an important debate.  I'm less concerned about whether we agree on the specific FISA bill pending - I think it's trivia regardless - than that we all come to understand how tenuous our Fourth and Sixth Amendment rights are since USAPA.  This is a small part of a huge and very dangerous problem, and it should rightly be the critical issue in the 2008 election.  Because there is nothing more sacred, more fundamental, than our Constitution.  Without that, we cease to be who we are.

Originally posted to NCrissieB on Thu Jun 26, 2008 at 04:46 AM PDT.

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  •  Tips for real safeguards! (443+ / 0-)
    Recommended by:
    Karmakin, Pat K California, DemFromCT, wozzle, Lupin, Ed in Montana, JWC, chuck utzman, chrississippi, aisling, Sean Robertson, Chi, steveGA, SeanF, askew, AlanF, tikkun, importer, abarefootboy, Guaunyu, MrPlow, Nina Katarina, Tuffy, nicolemm, whataboutbob, vancookie, mattman, PeterHug, greenbird, jkennerl, Grand Moff Texan, LynChi, Pescadero Bill, LEP, jrod, bawbie, Terry in Austin, iconoclastic cat, MackInTheBox, zenbowl, tithonia, Luam, bethcf4p, musicsleuth, bumblebums, HL Mungo, nanoboy, dnamj, goObama, strengthANDwisdom, housesella, Gustogirl, joyous, magurakurin, JDRhoades, parker parrot, Wee Mama, SamSinister, anotherCt Dem, djMikulec, Ian S, highacidity, MillieNeon, chuckvw, buckhorn okie, spartan68, DesertCat, peraspera, luku, sagra, aaalb, Shaniriver, Glinda, Dreggas, enough already, dmsilev, Cedwyn, heiderose1, wvhillrunner, Eddie C, wader, Janet Strange, mayan, EntrWriter, kharma, caseynm, dejavu, psnyder, rhapsaria, salsa0000, jlynne, pat bunny, coldwynn, 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JJK, dant, Lolo08, pateTX, the explorers, quagmire

    Let's protect the Fourth Amendment, not by suing telecoms, but by restoring the wall of separation between intelligence-gathering and criminal investigations.

    Thanks for reading.  I welcome your comments.

      •  I just posted this downthread (46+ / 0-)

        but it bears repeating. Newsflash: unless you're a straight, white, middle-class male, the government has already been trampling on your civil rights and your human rights. It's a basic fact of existence.

        Welcome to the club.

        "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

        by MBNYC on Thu Jun 26, 2008 at 06:10:49 AM PDT

        [ Parent ]

        •  Isn't that why we are supporting (17+ / 0-)

          Obama, a former con law professor?  If Obama and the other Dems are already exhibiting that they don't care all that much about congressional oversight when a Republican as terrible as Bush is in charge, are they going to bother to provide oversight when a Dem president is in charge?

          •  They are restoring the FISA Courts: Step 1 (14+ / 0-)

            I'd argue they are proving oversight by restoring the FISA courts jurisdiction over serving and hearing for warrants.

            The point was made well last night on Countdown here

            •  It doesn't need to be restored. (46+ / 0-)

              its oversight was never taken away it was just ignored. You can say all you want that you are "restoring" it, but if you don't enforce that oversight it does not mean anything. A law that is not enforced is powerless.

              Dear Mr. President, There are too many states nowadays. Please eliminate three. P.S. I am not a crackpot.

              by ryan81 on Thu Jun 26, 2008 at 06:37:48 AM PDT

              [ Parent ]

              •  They're also preventing disclosure of past abuses (37+ / 0-)

                The discovery process in the pending suits was our only hope of disclosing at least some of the past abuses.  In theory, a Congressional committee might investigate such abuses, but we all know how that's worked out in this Congress.  Unless Scott McClellan knows something about FISA abuses, Congress will never investigate it.

                The judiciary was the 1 remaining branch that afforded us the prospect of exposing this executive abuse of power.  Retroactive immunity will foreclose that option.  As Sam Ervin said, the theory of separation of powers was that it would be nigh impossible to corrupt all 3 branches simultaneously.  This WH is on the verge of accomplishing that feat.

                The issue here isn't the efficacy of the FISA courts or the lack thereof.  The issue here is the post hoc legalization of previously illegal activity.  Retroactive immunity is the equivalent of the DC burglary statutes being retrotactively amended after Watergate.

                It's bad enough that Hoyer and Rockefeller are willing to sell us out here for some telco $.  It's worse that Pelosi went along w/ the scam b/c she apparently didn't understand what she was doing.  Obama's going along too is even worse given his grounding in constitutional law and his status as titular party leader.

                Some men see things as they are and ask why. I see things that never were and ask why not?

                by RFK Lives on Thu Jun 26, 2008 at 07:06:44 AM PDT

                [ Parent ]

                •  Unless Obama IS as smart as we all HOPE he is (27+ / 0-)

                  And he sees the loophole in the bill that allows for criminal prosecution later.  The bill was drawn up in haste to exploit an opening in a political campaign in order to 1) create a schism between Obama and his very active base (US!) and 2) to prevent the airing of lots of Rethug criminal activity during said election.

                  Yes, retroactive immunity also covers a huge donor's ass (telecoms) while discovery probably would have illuminated Dem leadership's complicity.  So the thugs were pretty much in a win-win situation concerning this travesty.

                  But everything else they've done has backfired.  So why not this?

                  The author raises a very interesting point, that USAPA already ended the 4th Amendment as a practical matter.  However, I'm unaware of any case that might have supported this part of USAPA (disclosure: I'm not a lawyer, but have been known to imitate one in a Court of Law when civil rights are at stake and no one else will help).  Also, I wonder if this section of the new law will pass Constitutional muster (the current composition of the SCOTUS notwithstanding).


                  As a political matter, I want to see if Obama (suicide as a campaign issue, IMHO) will address these laws head-on as president with huge majorities in Congress.  Perhaps an omnibus bill called the "Restore the Constitution Act" that addresses all of it at once.

                  Because, while retroactive immunity is total BS, it is also an end-run that would provide very little in the way of real consequences for the Administration and could serve to delay any potential criminal proceedings.

                  President Obama's AG could easily appoint a commission to investigate and set this all straight with much fanfare at first, then working hard under the radar with real grand jury subpoena power backed up by real jail time for disobedience.

                  But he has to get elected President first.  And once in office we will have to lobby him HARD over this issue in particular.  Because we know how much politicians hate doing things that are hard.

                  So I'm recanting my previous rage at Obama over this issue, granting him benefit of the doubt, making my views known to his campaign and my congress critters, sending out $101 ASAP, and getting to work (after my vacation).  

                  McBomby has crept up on Obama here in Oregon (although I can't fathom how).

                •  Disagreement among allies (16+ / 0-)

                  The discovery process in the pending suits was our only hope of disclosing at least some of the past abuses.

                  Not necessarily true. The executive branch could voluntarily disclose its own past abuses, and those of private collaborators (such as the telcoms). Say, for example, if there were a new chief executive, director of intelligence, attorney general, and FBI director, all with the mind to restore the constitution.

                  The issue here is the post hoc legalization of previously illegal activity.

                  This would be true if criminal prosecution or civil liability were the only meaningful adverse consequences that the illegal actors could suffer. But that is not the case. Adverse publicity is a devastating consequence-- otherwise, corps would not spend hundreds of millions a year on advertising and PR to burnish their image. Adverse publicity leading to legislative and regulatory restrictions on future freedom of action would be a highly meaningful consequence for the corps involved.

                  We are playing a long game here. Winning everything we'd like on this FISA business right now won't do us much good in the long game, unless we also win the White House and large congressional majorities and are thus able to institute comprehensive and systemic reforms throught government, the economy, etc. OTOH, if we do win the White House and those large majorities, we can change the political environment in ways such that the kinds of FISA reforms we really want flow easily into law and practice.

                  If you'll excuse a military analogy, Obama is our general right now, for better or for worse. We are privates, corporals, or maybe lieutenants, trying to figure out what the top guy is doing, and somewhat compulsively arguing for what we would do if we were the general. But presumably, he got to be the general because he's the best guy for the job, with the best combination of strategic vision and the ability to rally the resources needed to accomplish his objectives. His deep and original understanding of the long game is how he bested the Clintons, when no one thought that was possible. So there is at least some evidence that he knows what he's doing and is a better player than anyone else on the board.

                  Or at least, I sure hope so.


                  Additional note: The outrage of lefty bloggers like us may actually be a help to Obama. We are not beloved by the population at large (that's their error, but it's still true). If he pisses us off royally, the general population may actually become more comfortable and accepting of Obama.

                  •  BINGO! (18+ / 0-)

                    The outrage of lefty bloggers like us may actually be a help to Obama.

                    Obama seldom does one thing when he can do three things at once.

                    This is a chess game and we're only halfway through the opening.

                    Meanwhile, the Republicans think they're playing checkers and McBush thinks it's Go Fish.

                    Won't it be nice to have a smart President?

                    First, oversight; second, investigations; third, impeachments; fourth, war crimes trials!

                    by ibonewits on Thu Jun 26, 2008 at 09:54:51 AM PDT

                    [ Parent ]

                  •  I take issue with your military analogy. (4+ / 0-)

                    I don't think we should unquestioningly follow Obama's orders, as you seem to imply. That line of thinking breeds fascism, and I've had quite enough of that, TYVM.

                    Elections in this country do not determine who's best, just who's most tolerable. There is a big difference between the two. And despite his Con Law professor cred -- which seems to get brought up every time as if it shields him from criticism -- I think we're giving Obama too much credit. This just seems to me like the classic Dem move-to-the-middle.

                    There is such a thing as leadership by example, and Obama has been sorely lacking in that. Pretty speeches and position papers are nice, but actions speak louder than words.

                    In a mad world, only the mad are sane. -Akira Kurosawa

                    by Andrew M on Thu Jun 26, 2008 at 11:04:06 AM PDT

                    [ Parent ]

                    •  I suggest, then (2+ / 0-)
                      Recommended by:
                      dmh44, PixyStyx

                      ... that you continue in opposition. The values that I think you advocate are definitely worth fighting for.

                    •  Obama = general is stupid (1+ / 0-)
                      Recommended by:

                      but the diarist's military campaign metaphor is fruitful. He says this is not the "hill to die on" because it is not strategically important terrain, legally speaking. I agree so far - that's why I'm willing to forgive Obama next time he does something really good - but I think he's missing something. This is not legally important terrain, but it is politically defensible terrain. There is no better chance to show that defending civil rights IS "law and order" than when you have a convenient bad guy. This is a chance to make the enemy feel the pain.

                      (Defensible, but on the political side, still not so strategic. We'd get investigation, and more proof that Bushco is criminal, but if we don't have enough of that already then no amount is enough. Politically, if impeachment is off the table, then this is toothless.)

                  •  DBunn, you nailed it!!!! Most underestimate Obama (4+ / 0-)
                    Recommended by:
                    boatsie, DBunn, Queenie68, princss6

                    brilliance at the political game.  We have not seen the likes of a brilliant leader in a long, long time.  Clinton had the potential, but sold out the masses because he was more concerned with being liked by his perception of the important people, the GOP, which consisted of the wealthy corp elite.

                •  A note on history. (10+ / 0-)

                  Thank you for your reply, and I do appreciate your concerns.  Many people voiced these same concerns in the wake of Watergate, when prosecutions were limited to the burglars and a handful of others.  They said, rightly, "There was more going on than just this burglary, and nobody's looking."

                  But the 1974 midterm elections, and then the 1976 elections, brought in larger, very angry majorities ready to take a hard look at the "more going on."

                  That's how we got the Church Hearings, and the other Congressional acts that peeled back the ugly scab on COINTELPRO, as well as the excesses of the CIA and other intelligence agencies.

                  This is not irrelevant history, as in fact it was the executive-trimming results of Watergate that folks like Dick Cheney spent the last 30 years working to overturn.  They found a vehicle for that in 9/11 and the "global war on terror."  And back to the old battle lines we've gone.

                  This is an ongoing battle, and not one we're going to win before the 2008 election.  The present FISA bill is irrelevant, in that even if Bush followed FISA to the letter, our Fourth and Sixth Amendment rights are still in tatters after USAPA took down the wall of separation between secret intelligence-gathering and public criminal prosecutions.

                  It's an election year, which means that everything gets a bit nuts on Capitol Hill - and out here as well - and we all tend to "look through the wrong end of the telescope" at such times.  So there's been a lot of huffing and puffing over this bill, as if this bill is our last, best chance to return to constitutional government.

                  But it's not.  We the People have fought these battles before, and we've won.  We'll fight them again, aided by a Democratic President and larger Democratic majorities in Congress.  We'll win again.

                  And twenty or thirty years from now, our children and grandchildren will probably have to fight these same battles again, after some future president has made a hash of our Constitution.

                  As Jefferson said, "The price of liberty is eternal vigilance."  There are no once-and-for-all fixes in government.  Every generation has its own battles to fight, to secure our constitutional republic.

                  This is our generation's turn.  So let's please not get so frustrated with each other that we forget to work together during our turn at the wheel.

                  •  Dem pres with Dem congress can = imperial preside (0+ / 0-)

                    ....imperial presidency the same as the neocons.  See Charlie Savage.  

                    Where's Obama's leadership on this anyway?  John Conyers made the point that this will be the first time Congress has stepped into an ongoing court case to decide the result and hide the proceedings.  This fundamentally wrecks Constitutional checks and balances.  So Constitutional Law Prof. Obama, why would you EVER choose that?  Tell us why.  And be prepared to hear us say why not.

            •  Who was it yesterday.. (16+ / 0-)

              Jonathan Turley I think, that said it was so poorly written as to not offer any safeguards at all.

              It's all a matter of perspective.

              •  This isn't yesterday, but it's Turley (7+ / 0-)

                Countdown 6/19/08

                The Bill itself was no doubt written by the telecom lobby lawyers.

                •  Money Laundering and "mis-givings" (5+ / 0-)

                  Greenwald on Telco "helping" legislation:

                  Telecoms broke our surveillance laws, and then our Democratic Congressional leaders ran to them to take instructions on how to write the special law to protect them, and they didn't even really bother to hide that. Politico reported last month that "telecom companies have presented congressional Democrats with a set of proposals on how to provide immunity." And the Pelosi-glorifying article in Time this week revealed that it was the telecoms themselves -- as key participants in the secret negotiations -- which fed Pelosi the bill's current amnesty provisions:

                  In negotiations with Pelosi's office, the telecoms offered a compromise: Let a judge decide if the letters they received from the Administration asking for their help show that the government was really after terrorist suspects and not innocent Americans.

                  If you break the law, you're going to be hauled into court and prosecuted. But if telecoms break the law, Nancy Pelosi, Jay Rockefeller, and Steny Hoyer will go to them and "negotiate" over what's acceptable to the lawbreaking telecoms in terms of how they'll receive amnesty.


                  Telco Contributions to Dems:


                  I like a little rebellion now and then. It is like a storm in the atmosphere ~ Thomas Jefferson

                  by valadon on Thu Jun 26, 2008 at 10:51:16 AM PDT

                  [ Parent ]

              •  John Dean... (5+ / 0-)

                ...John Dean made the "poorly written" observation on Countdown.

                He went on to say (paraphrasing) such flaws could potentially be discovered then used to render the bill untenable.

                Yet I get the impression congress is not so much concerned about the bill's  level of articulation...they just want it passed so as to impress Bush.

                "So this is how liberty dies. With thunderous applause."--Padmé Amidala

                by wyvern on Thu Jun 26, 2008 at 08:03:22 AM PDT

                [ Parent ]

              •  Safeguards meaning what? .. (1+ / 0-)
                Recommended by:

                that the telcos aren't really getting immunity? .. I guess it depends on what judge you get deciding your case .. and who is on the Supreme Court bench when this gets there

                John McCain: Bush right to veto kids health insurance expansion

                by Calvin Jones and the 13th Apostle on Thu Jun 26, 2008 at 09:13:28 AM PDT

                [ Parent ]

                •  Safeguards as in (2+ / 0-)
                  Recommended by:
                  Calfacon, MA Voter

                  protecting us from a snooping government.

                  Protecting us from 'contracted' companies going off on wiretap information gathering wild goose chases.

                  In fact it does just the opposite. It finally gives the AG the right to order spying on anyone for up to 7 days before even having to get a warrant. At least as far as I could tell having picked through the FISA Bill (PDF). And, I assume, any evidence gather therein can be used as evidence of any crime.

                  Otherwise, we already know almost certainly how the Four Racketeers on the SCOTUS will likely vote on any case involving government spying for the sake of nation security. Thus it will be extremely important we keep pressure on both the next president and congress to nominate liberal judges for SCOTUS.

                  The bitch about this is, for me anyway, is we'll never know if they indeed spied on Dem candidates, or Dem politicians in the 04 election cycle.

                  AND, they have essentially expanded the Military Industrial Complex to now include or branch off into the Intelligence Gathering Industrial Complex. Or more like the Intelligence Gathering Corporate Boondoggle.

                  •  NCrissieB, what do you say to this? (2+ / 0-)
                    Recommended by:
                    Calfacon, NCrissieB

                    The post above by Pescadero Bill alleges that the FISA bill "finally gives the AG the right to order spying on anyone for up to 7 days before even having to get a warrant." Is this true? If it is, the bill hardly sounds harmless to me. At least consulting the FISA judge creates some kind of record and, presumably, keeps the most egregious cases out of the system.

                    •  Hell, I'm no lawyer, but paragraphs like this: (2+ / 0-)
                      Recommended by:
                      NCrissieB, MA Voter

                      ‘‘(3) TERMINATION OF EMERGENCY AUTHOR10IZATION.—In the absence of a judicial order approving an acquisition under paragraph (1), such acquisition shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

                      In reference to paragraph 1:

                      ‘‘(1) AUTHORITY FOR EMERGENCY AUTHORIZATION. — Notwithstanding any other provision of this Act, if the Attorney General reasonably determines that—
                      ‘‘(A) an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and
                      ‘‘(B) the factual basis for issuance of an order under this subsection to approve such acquisition exists, the Attorney General may authorize such acquisition if a judge having jurisdiction under subsection (a)(1)is informed by the Attorney General, or a designee of the Attorney General, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.


                      ‘‘(2) SCOPE.—No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this Act.

                      Hell, maybe I'm just taking it all out of context.

                      •  You're not taking it out of context, Bill. (2+ / 0-)
                        Recommended by:
                        Pescadero Bill, MA Voter

                        The new FISA bill extends the pre-warrant window from 72 hours to 7 days.  To me, in the context of surveilling foreign intelligence agents here in the U.S., that's not a big deal.

                        You're not taking it out of context.  The USA PATRIOT Act did that.  Because now FISA isn't only being used "in the context of surveilling foreign intelligence agents here in the U.S."  After USAPA, information gained through FISA warrants can be used in the context of domestic, non-intelligence-related criminal prosecutions.

                        It's that "taking it out of context" that concerns me, as a former criminal defense attorney.  Because the factual affidavit underlying the FISA warrant remains classified "sources and methods" material, and that means the defendant can't even see it, let alone challenge it in court.  That leaves both the Fourth and Sixth Amendments in tatters.

                        And that's the issue I wish we were discussing when we get exercised over FISA.

                    •  It expands the window by 4 days. (0+ / 0-)

                      The 1979 version of FISA allowed the government to spy on you for up to 72 hours (3 days) before going to the FISC for a warrant.  Now it's 7 days.  That isn't the real issue.  The real issue is here:

                      At least consulting the FISA judge creates some kind of record and, presumably, keeps the most egregious cases out of the system.

                      No, and no.

                      The affidavit used to secure a FISA warrant is classified "sources and methods" information.  It doesn't "create a record" in any meaningful sense, because a criminal defendant can never see it and thus can never challenge its validity.  Literally, the FBI could invent complete fabrications to get that FISA warrant, and you would never know it.

                      As to "keep[ing] the most egregious cases out of the system," the FISC has refused fewer than five warrant requests - out of tens of thousands made - in its 19-year history.  It is, by any reasonable measure, a rubber-stamp court.  If the FBI comes to the FISC asking for a warrant, it gets the warrant, every time.  That's no meaningful "check."

                      Now, in terms of surveilling foreign intelligence assets here in the U.S. - where it's known from the outset that there will be no criminal prosecution - you could argue that may be reasonable.  That's why FISA was written.  And the original FISA specified that no information gained through a FISA warrant could be used as evidence in a criminal trial.

                      But that "wall of separation" came down with the USA PATRIOT Act.  Now information gained from FISA warrants can be used as evidence in a criminal prosecution.  But the intelligence-based secrecy of the FISC remains.

                      That means that even if the Bush Administration were following FISA to the letter, your Fourth and Sixth Amendment protections would still be gone, as you could not challenge the factual affidavit on which the FISA warrant was issued.  That affidavit is still classified "sources and methods" material.

                      The core problem here is that the USAPA allows the FISA process to be used for a purpose that the 1979 FISA bill specifically forbade:  gathering evidence for criminal prosecutions.  And the FISC just does not provide the constitutional safeguards for that.

          •  No. (32+ / 0-)

            I'm supporting Obama because our country is in the middle of a systemic crisis that I'm not even sure we're going to be able to fix. We have 46 million people without health insurance, our economy is collapsing, our environment is in crisis, people are losing their jobs,homes, insurance left and right, entire swaths of the country are falling to ruin, there's a war going on and the rest of the world hates us.

            That's what matters to me right now, not an Act of Congress that can and probably will be overturned.

            "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

            by MBNYC on Thu Jun 26, 2008 at 06:36:56 AM PDT

            [ Parent ]

            •  How many people watched Jonathan Turley on (36+ / 0-)

              "Countdown" last week?  (Constitutional Law professor at Georgetown)   He expressed the "complicity" of so many of our long-term Congressional leaders with their Republican cohorts as the reason that Obama can't win this fight.   We had Reid stating that he would "try to remove "immunity" from the bill but that it probably would not work"!    Wow, what leadership?  Now, he is stating that he will probably vote "No" on it but "Dang, he is being overwhelmed by those pesky "Yes" votes? (paraphrased)  He is a game-playing DLC/corporate asshat and don't forget that Obama was not their favored DLC candidate for the fall election and that Obama needs these corrupt asshats working for his election this fall too!                                                                                                                                                                                             As the worried mom of a pre-9/11 Florida National Guard SSG that has supported Obama and his Middle East policies, along with his military friends since their visits to Afghanistan and Iraq, Obama needs us to have his back right now.   Our "ruined", real military and our foreign relations are in too much peril to do otherwise right now.  peace, mjd

              Catholic, white woman over 50 for OBAMA!! (endorsed 12/06)

              by mjd in florida on Thu Jun 26, 2008 at 06:56:52 AM PDT

              [ Parent ]

              •  I have friends in the military (23+ / 0-)

                and frankly, the damage Bush has done to our Constitution pales in scope (not in import, in scope) next to what he's done to our military. The Army is broken, and it's going to take ten years or more to fix it, if it even can be fixed. Right now, we can't fight a war.

                Basically, in every area where I have some measure of expertise, Bush has wrought havoc. I imagine the same thing has happened on subjects where I'm clueless.

                We're fucked.

                "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

                by MBNYC on Thu Jun 26, 2008 at 07:05:56 AM PDT

                [ Parent ]

                •  Rebuilding after a presidential hurricane (19+ / 0-)

                  As you and mjd highlight, and as NCrissieB clearly describes, everything is broken. (gotta dig up that dylan song...)

                  broken military.
                  broken constitution
                  broken congress.

                  I'll toss in my own:
                  broken media

                  Not only have the walls between intelligence gathering and criminal prosecution been breached, but the wall between journalism and propaganda is gone too.

                  The diarist so clearly lays this out, it causes me to ask: why aren't an army of attorneys on news programs with this analysis?  Silly me... it's counter to the party line.  Ronald Reagan, may you rot in Heck.

                  Obama, anti-McSame, and 50% off all IMPEACH static cling window decals@

                  by netguyct on Thu Jun 26, 2008 at 07:20:50 AM PDT

                  [ Parent ]

                •  Why (2+ / 0-)
                  Recommended by:
                  mattman, shaharazade

                  do we need to be able to fight a war?  Hasn't that caused the world enough harm already?

                  We need to move from working for Democratic electoral victory to working for progressive electoral victory.

                  by Gamma on Thu Jun 26, 2008 at 07:43:53 AM PDT

                  [ Parent ]

                  •  It's not only fighting wars, (6+ / 0-)

                    our National Guard and most of their equipment has been depleted in the sands of "Iraq" for corporate "war profiteering".  The real fight was in Afghanistan and could have been easily solved in 2002 by taking out the bad Taliban and bin Laden's groupies instead of Cheney paying those bad Taliban to turn in innocents for rendition by way of "bounty" bonuses and allowing the Taliban to hunt down bin Laden.   Where are the investigations of Cheney and his corrupt deals with Pakistan?  His paying them our tax dollars to harbor bin Laden and giving Pakistan business deals vs. the deserving Afghans?  Where are the investigations of Cheney's no-bid business deals that ended up as missing or totally worthless by being "Ponzi" schemed or su-sub contracted to death with our stolen monies?   Where are the investigations of the "Rummy Doctrine" of bombing civilian areas for expediency?   We sure didn't win "hearts and minds" in the Middle East with that tactic.  Think about what would happen in our country if an outside occupier attempted that tactic.   My son and his friends knew that the locals would keep their babies away from our troops for days on end after every civilian area bombing and it really "upset" them and they have been waiting years for the crimes and corporate corruption to be investigated.                                                                                                                                               Not many of our National Guard are specifically trained for combat.  Certainly my son always carried a rifle (he is in law enforcement in real life) but he ran a frigging Afghani National Army Depot and loved the locals and his interpreter that had several degrees and spoke 5 languages fluently.  All of his friends that served in Iraq have quit their military commitments at 8 years.  He is hanging on by only extending one year at a time.  No bonuses, but he really would like to put in his 20 years)

                    Catholic, white woman over 50 for OBAMA!! (endorsed 12/06)

                    by mjd in florida on Thu Jun 26, 2008 at 08:15:48 AM PDT

                    [ Parent ]

                  •  Ask the people (4+ / 0-)

                    in Bosnia, Kosovo, Rwanda and so on. As long as wars are possible, we need to be ready to fight one, because it needs only one party to start a conflict, not two.

                    "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

                    by MBNYC on Thu Jun 26, 2008 at 08:20:05 AM PDT

                    [ Parent ]

                •  Obama's biggest problem with the military (8+ / 0-)

                  I was talking with someone knowledgeable of internal military affairs and the impression I got from him is that Obama's most difficult task, with respect to the military, will be weeding out the political sycophants that Bush has installed at the highest levels.

                  Bush, more than most presidents (perhaps more than all presidents) has made a fetish of requiring that his Generals be ideological true believers. As such, few could rise to positions of authority with in Bush's military without also believing as Bush does about what should be done with the military.

                  There has always been politics in the military. But with Bush that politics has taken an ideological turn that is disturbing in its breadth.

                  A President Obama is going to have a hard time dealing with those ideological generals.

                  •  The "grunts" have Obama's back! (6+ / 0-)

                     I find it amusing watching McCain ptetend to talk for our military with his "pre-chosen" groups.   Watch the vote tallies from military areas this fall and don't count on our corrupt media to cover the issue either.  During the primaries, I was watching the Carolina military districts coming in solidly for Obama and we never "heard a peep" from our corporate media about that "demographic" since they love slicing and dicing us all up into categories.   As my autotag expresses, I was none too happy with the media assuming Obama, all of a sudden, had problems with Catholic voters in Pennsylvania, when the exact same percentage of older women and Catholics voted for Hillary.  DUH?  (the two went together)           peace, mjd

                    Catholic, white woman over 50 for OBAMA!! (endorsed 12/06)

                    by mjd in florida on Thu Jun 26, 2008 at 10:09:15 AM PDT

                    [ Parent ]

              •  Obama could've easily CONTINUED his opposition (22+ / 0-)

                to retroactive immunity.  He didn't have to be down on the Senate floor w/ Feingold and Dodd.  He could've, however, maintained the position he took when Dodd endorsed him 4 mos ago.

                Obama is now openly siding w/ Hoyer, Rockefeller, and the other telco bagmen against people like Feingold, Dodd, and the Dem Senate Judiciary Chair.  Unlike Pelosi, who's visibly befuddled on this issue, he knows exactly what he's doing here.  

                4 mos ago, Obama stated:

                The American people must be able to trust that their president values principle over politics, and justice over unchecked power. I’ve been proud to stand with Senator Dodd in his fight against retroactive immunity for the telecommunications industry. Secrecy and special interests must not trump accountability. We must show our citizens – and set an example to the world – that laws cannot be ignored when it is inconvenient. Because in America – no one is above the law.  

                While Obama is, obviously, light years better than McVain, and while he was a better choice than HRC was, his 180 degree turn here is rather disconcerting.

                Some men see things as they are and ask why. I see things that never were and ask why not?

                by RFK Lives on Thu Jun 26, 2008 at 07:15:59 AM PDT

                [ Parent ]

                •  He can't be labeled a "terrorist appeaser" (6+ / 0-)
                  Recommended by:
                  ZinZen, dmh44, elwior, Happy Days, artmartin, mel70

                  and his complicit DLC cohorts have put him into this position.  (our corporate media would skewer him with this issue)  He knows a hell of alot more than most of us about constitutional law and I am sure that he has a plan down the road.

                  Catholic, white woman over 50 for OBAMA!! (endorsed 12/06)

                  by mjd in florida on Thu Jun 26, 2008 at 07:24:14 AM PDT

                  [ Parent ]

                  •  Sure (5+ / 0-)

                    He knows more than us and has a secret plan.  That's the way we should be thinking about these issues.

                    We need to move from working for Democratic electoral victory to working for progressive electoral victory.

                    by Gamma on Thu Jun 26, 2008 at 07:45:08 AM PDT

                    [ Parent ]

                  •  are you serious - that upholding the law palls (6+ / 0-)

                    to being called a terrorist appeaser.  REally?

                    WTF then?  Why Obama then?  who gives a shit then?

                    Before: "America Rising" - John Edwards we are with you. - After - Not This Time - Barack Obama we are with you!

                    by totallynext on Thu Jun 26, 2008 at 07:57:24 AM PDT

                    [ Parent ]

                  •  Sacrifice our rights at the altar of political (4+ / 0-)

                    expediency? That is exactly what Obama is criticizing Bush for doing. How does he justify this statement with his current position?

                  •  complicit DLC cohorts (2+ / 0-)
                    Recommended by:
                    Calfacon, brewmn

                    Not sure what that means. Obama lost my vote and my donation over FISA.

                    Its statements like yours that give rise to the term "Obama Sheep".

                    Fact #1
                    Obama flipped on telecom immunity.

                    Fact #2
                    Obama Campaign is using fear to justify his support of  the FISA amendment.

                    Fact #3
                    Obama is voting hand in hand with the Republican party including McCain.

                    (-7, -4.62) I'd rather vote for something I want and not get it than vote for something I don't want and get it. -Eugene V. Debs

                    by Cheney on Thu Jun 26, 2008 at 08:47:54 AM PDT

                    [ Parent ]

                    •  Thanks Cheney! (1+ / 0-)
                      Recommended by:

                      You are the biggest "criminal" against repairing our "ruined" military, our foreign relations and our country.   The real "appeasers" are our complicit Congresscritters that haven't done their job of investigation and prosecution against you and your buddy "War Criminals" and "War Profiteers" in your co-administration.   As Jonathan Turley states, many are "complicit".

                      Catholic, white woman over 50 for OBAMA!! (endorsed 12/06)

                      by mjd in florida on Thu Jun 26, 2008 at 09:07:32 AM PDT

                      [ Parent ]

                      •  arent you describing Obama? (0+ / 0-)

                        The real "appeasers" are our complicit Congresscritters that haven't done their job of investigation

                        When Obama votes YES on FISA (or doesnt bother to vote) isn't Obama avoiding an investigation.

                        Talk about complicit!  I'm blown away by your lack of logic.

                        (-7, -4.62) I'd rather vote for something I want and not get it than vote for something I don't want and get it. -Eugene V. Debs

                        by Cheney on Thu Jun 26, 2008 at 11:12:58 AM PDT

                        [ Parent ]

                        •  What investigation is Obama worried about? (4+ / 0-)
                          Recommended by:
                          dmh44, evora, PixyStyx, MA Voter

                          Hmmm?   He was against this frigging war in Iraq and his campaign isn't being paid by corporate lobbyists.   I would prefer that he would come out against this entire issue but many of his congressional critters are not in his "tank" and we have many big fish to fry.  If you know more than me about constitutional law, then explain your credentials.  Otherwise, I am going with Jonathan Turley.   I respect that man and Obama.

                          Catholic, white woman over 50 for OBAMA!! (endorsed 12/06)

                          by mjd in florida on Thu Jun 26, 2008 at 11:25:26 AM PDT

                          [ Parent ]

                          •  Myopic Obama Sheep (0+ / 0-)

                            Sure Obama was against the "war" err invasion err occupation.  Thats why he voted to fund it over and over again.

                            McCain and Obama voted hand in hand to continue funding the Iraq occupation.  Who's the congressional critter?

                            Perhaps you don't know your candidate as well as you think.

                            Now what makes the FISA matter even worse, is that Obama supporters keep saying that Obama is knowledgeable of constitutional law. But wait, he's going to vote (or be absent)for an  unconstitutional bill, FISA. Its not like Obama doesnt know FISA amendment is unconstitutional, he knows but still votes for it.  Worse than say McCain who can simply stick to ignorance.

                            I know little about constitutional law, but apparently both myself and the ACLU (amongst others) disagree with Obama and consider the FISA revision unconstitutional.  Lots of lawyers in ACLU ehhh?

                            I was/am against the war in Iraq and I'm not paid by corporate lobbyist. Does that mean you'd vote for me too?

                            (-7, -4.62) I'd rather vote for something I want and not get it than vote for something I don't want and get it. -Eugene V. Debs

                            by Cheney on Thu Jun 26, 2008 at 07:08:38 PM PDT

                            [ Parent ]

                  •  Nobody Believes That (0+ / 0-)

                    Republicans have tried that "appeaser" talk already and no one believed it. No one in the voters, anyway, or at least not enough to matter one bit.

                    That excuse doesn't work for Democrats anymore. They can't act like Republicans just by claiming Republicans will insult them if they don't. Way more than enough Americans aren't buying those BS scare tactics anymore. We want Democrats to do the right thing, stand on rule by American law, and not pretend that every day is a worldending crisis.

                    Obama's vote is his own. If he voted against FISA telco amnesty, if he told the members of the Party he now heads that they can't allow it, they'd have to listen. Even Reid is saying he'll vote against it.

                    These excuses don't work for anyone but Republicans, and the Democrats who love them.

                    "When the going gets weird, the weird turn pro." - HST

                    by DocGonzo on Thu Jun 26, 2008 at 09:29:55 AM PDT

                    [ Parent ]

                    •  You trust "Reid"? (3+ / 0-)
                      Recommended by:
                      L0kI, Calfacon, hyper

                       The man that shelved the dangerous, neocon-enabling "Kyl-Lieberman" bill late one night for the foreseeable future and then rushed it to the Senate floor the following morning knowing that Obama was voting "NO" and that he had traveled to the countryside of New Hampshire?   Did it dawn on you at that time that he was enabling his corporate/DLC favorite Hillary to vote "Yes" for the primaries while diminishing Obama's "No" vote and allowing Hillary to run as a neocon "warmonger" in the general election?  It certainly dawned on most of us military-involved families.  We have DLC and Republican collaborators in the massive corporate corruption and their war crimes.

                      Catholic, white woman over 50 for OBAMA!! (endorsed 12/06)

                      by mjd in florida on Thu Jun 26, 2008 at 11:11:35 AM PDT

                      [ Parent ]

                      •  No I Don't (0+ / 0-)

                        I dont' trust Reid. Even if he's lying about his vote, or just voting because he's afraid to vote with the majority he's letting pass it, at least he's taking a public stand against it, which makes it harder to pass in his Senate.

                        We're not talking about Kyl-Lieberman, which is an entirely separate bill, and about which you'd probably find that you and I agree 100%.

                        Why don't you address the more important point that Obama is voting for telco amnesty, instead of parsing and cherrypicking only the largely irrelevant flecks that don't show how you're spinning Obama's betrayal into something acceptable?

                        "When the going gets weird, the weird turn pro." - HST

                        by DocGonzo on Thu Jun 26, 2008 at 01:25:32 PM PDT

                        [ Parent ]

              •  Jonathan Turley's (2+ / 0-)
                Recommended by:
                mjd in florida, notquitedelilah

                Countdown appearance.


            •  Okay, that's not true of all of us (8+ / 0-)

              Some of us were looking forward to a President who cared about the protections the Constitution offered.   After this administration, we need that as well.

        •  Truth (4+ / 0-)
          Recommended by:
          steveGA, GN1927, tomjones, MBNYC

          You're right.

      •  Not entirely. (40+ / 0-)

        I agree that it's just plain silly - in fact it's a naked power grab - for the Bush Administration to sidestep what is already a rubber-stamp process.  That must end.

        And the current bill does end that.  It requires the FBI and other agencies to go through FISA to get wiretap warrants, and makes it illegal to place a wiretap without such a warrant.  Sadly, it may also immunize those agencies and the telecoms from civil lawsuits over past violations.

        I say "may" because this bill provides an affirmative, threshhold defense of "acting in good faith under color of law."  An affirmative defense must be raised and proved by the defendant telecom, and it's up to the trial judge to determine whether the telecom did in fact "act in good faith under color of law."  If the trial judge determines that it did, the suit is dismissed.  If the trial judge determines that it didn't, the suit goes forward.

        Either way, I guarantee you, those immunity decisions will be appealed, and the ultimately the Supreme Court will decide whether that statute granting immunity is constitutional.

        So please don't give up hope.  Senator Obama has indicated that he may join the fillibuster against this bill.  Ideally, the Senate should indeed let this bill die for this session, so the issue can be taken up after the election, without the election-year political issues compromising the debate.

        Regardless, the greater need is restoring that "wall of separation" between intelligence-gathering and criminal prosecution.  Without that, we have no Fourth Amendment to speak of.

        •  It was illegal anyways. (2+ / 0-)
          Recommended by:
          chuck utzman, blueoasis

          Dear Mr. President, There are too many states nowadays. Please eliminate three. P.S. I am not a crackpot.

          by ryan81 on Thu Jun 26, 2008 at 06:38:50 AM PDT

          [ Parent ]

        •  I don't read the bill this way (8+ / 0-)

          It sounds to me that to get immunity the telecoms need to get a certification from the AG that at some point the AG or someone else requested the telecoms help under one of a few provisions of law.  Really, if the AG says that the telecoms were asked to help with some national security and told that they didn't need a warrant, then they have immunity.  Even if the request and the actual help wasn't authorized under the law.  The AG doesn't even have to show the original letter.  The telecoms don't have to show that they even believed that they were acting lawfully.

        •  oh good (4+ / 0-)

          and we know how dependable the Supreme Court is

          Beware all ventures which require new clothes, and not a new wearer of clothes. -- Henry David Thoreau

          by Shocko from Seattle on Thu Jun 26, 2008 at 07:12:25 AM PDT

          [ Parent ]

        •  where does the bill say this? (10+ / 0-)

          I say "may" because this bill provides an affirmative, threshhold defense of "acting in good faith under color of law."  An affirmative defense must be raised and proved by the defendant telecom, and it's up to the trial judge to determine whether the telecom did in fact "act in good faith under color of law."  If the trial judge determines that it did, the suit is dismissed.  If the trial judge determines that it didn't, the suit goes forward.

          The bill states that a civil action against a telecom "shall be promptly dismissed" if the Attorney General certifies certain facts.  There is nothing for the telecom to prove, they just need to call the AG and have the AG provide the certification to the court.

          And, where does the bill state good faith defense?

          These certifications require the AG to attest or swear to the truthfulness of certain facts, such as the "fact" that the domestic spying was "authorized" by Bush; or that the telecom received a written request or directive from the AG or intelligence community which indicated the "fact" that the spying was "authorized" by Bush and "determined to be lawful."

          My reading of bill is that if the AG certifies the appropriate "facts" required by this bill, then the case is dismissed, end of story.

          The court will not be able to ask anyone to prove the "facts" contained in this certification, such as the "fact" that Bush was "authorized" to order domestic spying.  It is more of a presumption that if the AG certifies the "fact" that Bush was "authorized," then the case is dismissed.
          So, how was Bush "authorized" to order domestic spying when he violated the FISA law in existence when these spying programs were started?  And, who determined that the spying programs were lawful? Well, factually, it was Bush under his unitary executive theory.

          I don't disagree with your proposition that the Patriot Act is a problem. But, so is FISA.

          Obama said he would support filibuster, now Obama says that national security trumps getting rid of telecom immunity.

          Obama said he would investigate and potentially criminally prosecute Bush officials for knowing violations of our laws, such as Bush knowingly --- and intentionally I might add --- violating FISA. If this bill passes, that promise will be broken too.

          I voted for Obama and will do so again in the general. But, my level of enthusiasm for him is down.

          •  The "Pragmatist's View On FISA" Is Wrong (5+ / 0-)

            Glenn Greenwald writes:

            To the contrary, the judge is barred from examining the real reasons this spying occurred. The judge has only one role: dismiss the lawsuits as long as the Attorney General -- Bush's Attorney General -- claims that the spying was "designed to prevent or detect a terrorist attack."

            The court is barred from examining whether that's true or whether there is evidence to support that claim. It's totally irrelevant whether the Judge is favorable to "civil libertarians' claims" or not since he's required to dismiss the lawsuits the minute the Attorney General utters the magic words, and he's prohibited from inquiring as to whether the Attorney General's statements about the purpose of the spying are true. That's why Rep. Blunt dismissed the whole process as nothing more than a "formality"

            See also diary The Pragmatist's View On FISA Is Wrong by Patriot Daily News Clearinghouse.

          •  The silver lining (1+ / 0-)

            The only good thing I see coming out of this is that the AG would have to go on record as approving the act.

            That may not sound like much, but its my impression that one thing public officials hate to do, especially with really contentious issues, is go on record. Actually having to put something on paper may make even some of the worst reprobates think twice about what they are doing.

            I think that's what happened in the case of Ashcroft. I don't think anyone seriously believes he had problems with the idea of what the Bushies wanted to do. But I think he did have problem with having to put his name on a piece of paper saying it was okay.

        •  The rubber stamp (2+ / 0-)
          Recommended by:
          SamSinister, MA Voter

          I read a fascinating article a few years back about FISA. The article basically said that yes, FISA is a rubber stamp court. But it wasn't really designed to be a rigorous check on power. Its real purpose was to put a speed bump in the path of investigators who would willy-nilly wiretap without much thought as to whether it was really justified. The theory was that, if investigators knew they would have to ask an outside authority (the FISA court) to sign off on their actions, they would at least have to think twice about what they were doing before asking for it.

          It also created a measure of accountability since there would be a record of the request for wiretap authority. Even if that record was secret, it still existed and could someday be revealed.

        •  It was already illegal. (0+ / 0-)

          It requires the FBI and other agencies to go through FISA to get wiretap warrants, and makes it illegal to place a wiretap without such a warrant.

          It was ALREADY illegal for them to place a wiretap without a warrant.

          And this bill changes that ... how?

          I never thought I'd miss Nixon...

          by DixieDishrag on Thu Jun 26, 2008 at 10:40:20 AM PDT

          [ Parent ]

        •  my educated guess (2+ / 0-)
          Recommended by:
          mattman, Calfacon

          is that the vast majority of the 'intelligence-gathering' aspect of the wiretapping has been political 'intelligence'.  The only terrorists I know of are in power in the US government at the highest levels.

          Orwell meet George the 43rd

          by FreeTradeIsYourEpitaph on Thu Jun 26, 2008 at 11:36:13 AM PDT

          [ Parent ]

      •  Correct (1+ / 0-)
        Recommended by:
        Pacific NW Mark

        If you understand that impeachment is at heart a political solution, not a legal one, then you realize reworking FISA is a figleaf to politically enable more law-breaking.

        They can go to town on the domestic spying, say checking to see if a certain presidential candidate with a funny name has any terrorist connections, and, when caught, use this FISA law change as cover.

        This isn't as much about the constitution as it is political cover (retroactive and otherwise).

    •  Not Bait and Switch...NOBODY is clamoring for (25+ / 0-)

      Telecom immunity EXCEPT for Republicans IN office.  You are taking an Apologist Position.

      This was not a stance that was going to COST Obama votes if he held strong AGAINST the AT&T Protection Bill but he has certainly dismayed many supporters of which I am one.  The star-struck will not be affected but they are a small voting sector (though vocal).

      I will vote for Obama and support so many of his positions but that will not stop me from being critical when it is needed.

      •  You really don't think... (9+ / 0-)

        ...that McCain would've used a vote against the FISA bill against him? Claimed he was weak on national security and hampering the FBI in doing their jobs?

        Obama came out and said he's against immunity, but for the bill. That means that if they can't amend the bill, and he's forced to vote against it, he can talk about how Republicans endangered the country because they were too busy protecting their corporate pals. Meanwhile, if they do amend the bill to remove immunity, this diary makes a persuasive case that it doesn't matter if the bill is passed or not.

        •  I don't care (11+ / 0-)

          about this:

          "...that McCain would've used a vote against the FISA bill against him? Claimed he was weak on national security and hampering the FBI in doing their jobs?"

          Yawn.  Who gives a shit.  People who are becoming aware of the Bush agenda, and there are more and more each day, will see right through McCain's claims.

          •  I would agree if... (2+ / 0-)
            Recommended by:
            Harkov311, soms

            ...I thought the more politically risky thing would yield some tangible benefit. I don't see what that would be, in light of this well-informed review of the facts.

            •  It's NOT the politically risky thing (1+ / 0-)
              Recommended by:
              Los Diablo

              That kind of thinking is what leads to Democratic spinelessness. This could be a solid, winning issue, if they weren't cowering in the corner in terror that the big-bad Republican is going to get to use a national security argument. The way to beat them on national security isn't to give in, it's to openly and directly fight back.

              •  A winning issue? (0+ / 0-)

                If there's a winning issue to be had here, it's the telcom immunity--and that's what they've positioned themselves to take issue with. By taking the stance he did, Obama has the opportunity to turn the national security argument on McCain (or at leas the Republicans in general) by saying that he was too interested in protecting big business to pass a law to help protect our nation. Without that, it's just another privacy vs. security issue, and those haven't been winners for us so far. Most people just don't care.

                •  His position on immunity (1+ / 0-)
                  Recommended by:
                  Los Diablo

                  appeared to be one of consigned regret, much the same as Senator Reed. He did not make anything resembling the forceful denunciations from Senators Fiengold or Dodd. "It's a shame, but what can you do" is not enough from the de facto head of the majority party-- especially one who is going to face criticism in the general about his ability to actually get things done.

                  •  He never resigned himself... (0+ / 0-)

           anything, he stated his opposition to immunity. I don't really expect more from him than that, as this isn't exactly the most scintillating issue of the day for him to demonstrate leadership on. There'll be a vote to strip it out of the bill, and if he works to get the amendment passed, good for him. If not, I really don't think it's the kind of thing he needs to waste time trying to have a national dialogue on.

          •  StopIt, why then does McsameFlip (3+ / 0-)
            Recommended by:
            MrPlow, geejay, lovelyivy

            lead by a large margin when asked if they feel he or Obama can handle terrorism better? Why do some still think he is a muslim? Why do some still think he is not patriotic? etc etc etc... And perhaps those people would not vote for him anyway,BUT some can turn into more = 8 more years of shit.

        •  claimed he's weak on net sec (7+ / 0-)

          that's gonna happen, is happening anyway. There is zero gain in defending against a feint like that.
          There is a small audience for this vestigial Tuff On Terra stance, and they tend to be the truly ignorant- who think we're still looking for those WMD (or found them). GWOT is dropping off the radar for almost everybody (11% still shitting their pants over it in one recent poll - every one of them solid for McSame). Obama has already articulated a response to this tired fearmongering, basically "I'd love to have that debate". He can articulate the fact that amnesty, self-oversight by bush, and laissez-faire surveillance are vehicles for abuse with no enhanced security for the country. McSame will get the idiot vote, and he'll throw them red meat often, but that idiot vote is shrinking as more people realize the trouble we are all in on so many fronts, and open their ears and minds to new possibilities.
          That said, (and I hate, hate, HATE bargaining with our constitution over political tea-leaf reading. It's an obscenity that we even have to have these appalling discussions), the diarist is right. And I'd go further - even with stronger oversight and removal of amnesty, this whole program is a direct violation of Amendment 4 on its face, even before the Patriot Act. We're upset at the obvious servitude to big business and refusal to stand on principle, but those of us paying attention should know that the civil liberties issue is long since moot. We're much further down the rabbit hole than we like to think.
          Which leaves us with prosecution after the junta is removed. Which will come if I put a tooth under my pillow.

          On Liberation Day, 1/20/09, Americans will greet us with flowers and candy

          by kamarvt on Thu Jun 26, 2008 at 07:14:46 AM PDT

          [ Parent ]

        •  Oh good (2+ / 0-)
          Recommended by:
          Los Diablo, shaharazade

          Now McCain will say Obama's strong on national security?

          The Republicans were right about one thing - The media is irresponsible.

          by nightsweat on Thu Jun 26, 2008 at 08:12:26 AM PDT

          [ Parent ]

          •  Just because he's got a gun... (1+ / 0-)
            Recommended by:

            ...doesn't mean we should give him ammo.

            •  Anytime we do anything against their positions (4+ / 0-)
              Recommended by:
              Los Diablo, shaharazade, jayden, radmul

              It's "ammo".  That's a ridicuous position. We have political differences with them.  We believe in a Constitutional Republic, they believe is a plutocracy run by an autocrat.

              The Republicans were right about one thing - The media is irresponsible.

              by nightsweat on Thu Jun 26, 2008 at 08:19:29 AM PDT

              [ Parent ]

              •  Again, I would agree if... (0+ / 0-)

                ...the diarist hadn't so persuasively argued there's nothing to be gained by opposing this bill.

                •  I believe there is Value in opposing (1+ / 0-)
                  Recommended by:

                  this bill.  It provides the opportunity to express support for the Constitution, even if it is from a (misinformed) layman.
                      It also set and extremely bad precedent by saying that for security reasons you can break the law if the President asks you to.
                      What will be the next reasons for breaking which laws?  Breaking off-shore drilling laws, anti-pollutions laws because the cost of gas is creating an Energy Crisis?  There are a whole lot of laws out there just waiting to be excused by the Pres because of exigency.  I don’t want to go any farther down this slope.

                  •  That's always a defense in civil cases. (0+ / 0-)

                    In a civil lawsuit - and that's the only kind of immunity this bill addresses - there is always a defense of "acting in good faith under color of law," that is, complying with an apparently reasonable request from an authorized government agency or official.

                    Almost all civil lawsuits involve negligence:  failing to act as would "a reasonable, prudent person in like or similar circumstances."  So if you were acting in good faith, in response to an apparently reasonable request from an authorized government agency or official, you can raise that as a defense.

                    In most civil cases, whether you acting in good faith under color of law, and thus acting reasonably, is an issue of fact to be decided by the jury.

                    Example: Dave Defendant is stopped for a traffic violation on a rural road.  The road has no shoulder, so after Dave stops, Peter Policeman directs Dave to pull over onto what appears to be a bare spot, so that the heat from Dave's muffler won't pose a fire hazard in the surrounding grass.  Dave does so.  Harry Homeowner comes charging out of the house, screaming that Dave has just driven over Harry's prize pumpkin patch, which Harry has always grown there because "the exhaust fumes make the color better."  Harry sues Dave in civil court for trespass and damage to his prize-winning gourds.  Dave offers in defense that he was obeying Peter's orders, because Peter is a policeman and the order seemed reasonable.

                    This defense is an issue of fact to be decided by the jury.  If they believe Dave acted reasonably in following Peter's orders, then Dave is not liable for the damage to Harry's pumpkin patch.  If they believe Dave acted unreasonably, regardless of Peter's orders, they may hold Dave liable for the damages.

                    What the current FISA bill does, for telecoms in wiretapping cases, is make that defense an issue of law to be decided by the trial judge.  If the telecom proves that it was acting in good faith under color of law - complying with a request from an authorized government agency or official - the case is dismissed and never gets to the jury.

                    I hope this clarifies the law somewhat for you.

            •  Republicans just make it up (2+ / 0-)
              Recommended by:
              Los Diablo, ADamiani

              They don't need "ammo."

              According to the latest Rovian volley, Obama is a country club elitist who shows up to the latest soiree with the hottest chicks and holds court along the sidelines arrogantly smoking cigarettes while making smug remarks about whitey.

              Through all your faults and all my complaints, I still love you.

              by jayden on Thu Jun 26, 2008 at 11:10:22 AM PDT

              [ Parent ]

              •  So in your opinion... (0+ / 0-)

                ...Kerry's verbal slip-up about voting-for-the-war-before-voting-against-it meant nothing, as they'd have just made up something else anyway?

                •  "Swiftboating" didn't become a verb in a vaccuum (1+ / 0-)
                  Recommended by:
                  Los Diablo

                  Verbal slip-ups will happen on both sides. We're going to hear about "bitter" all the way to November.

                  But cowering in fear that something you say or do will be used against you is pointless because chances are it will be used against you.

                  Thankfully, Obama says he doesn't do cowering.

                  He has already demonstrated that he will punch back and punch back hard.

                  Through all your faults and all my complaints, I still love you.

                  by jayden on Thu Jun 26, 2008 at 12:16:10 PM PDT

                  [ Parent ]

                  •  Oh, shut up about "cowering". (0+ / 0-)

                    It's ludicrous to say anyone is cowering, when the entire point of the diary is that the bill itself is of next to no consequence. Using it as a political tool is the only way to handle it.

                    •  Fuck you, zbbrox (0+ / 0-)

                      Don't ever tell me to shut up. If you can't handle discussion, go elsewhere.

                      Through all your faults and all my complaints, I still love you.

                      by jayden on Thu Jun 26, 2008 at 01:24:04 PM PDT

                      [ Parent ]

                      •  Don't be a baby. (0+ / 0-)

                        I don't have a problem with your opinion, I have a problem with your histrionic use of the word "cowering". I notice you didn't respond to my actual point. Did you expect to distract me by throwing the word "fuck" around?

                        Tell me in what universe it is "cowering" to try and use an irrelevant bill as a political tool. Unless, of course, you can't handle the actual discussion, and would prefer to whine some more instead.

                        •  Name calling? Is that the best you can do? (0+ / 0-)

                          BTW, "fuck" is thrown around these parts all the time. I reserve it for those who deserve it. I have never had anyone tell me to "shut up" on this site and very rarely has anyone resorted to such pathetic childish name calling. You deserve the expletive.

                          To the point at hand:

                          You might take care to note that I wasn't linking the use of "cowering" specifically to the FISA issue. You opted to do that, not me.

                          I was speaking in broader terms in response to your comments about "ammo" and verbal gaffes. A quick reread of the thread clarifies that.  

                          Oh, and please be sure to tell Obama to refrain from "histrionics" by ever using the term "cowering." Think about it for a sec. When asked the question about DEMS cowering, he could have simply said, "Democrats don't do that. That notion is absurd." Instead he replied, "I don't do cowering."

                          The implication is crystal clear.

                          Through all your faults and all my complaints, I still love you.

                          by jayden on Thu Jun 26, 2008 at 03:24:20 PM PDT

                          [ Parent ]

                          •  You clearly take yourself... (0+ / 0-)

                            ...too seriously if you think me accusing you of acting like a baby was "childish name-calling", but you telling me "fuck you" was entirely appropriate. Seriously, chill out.

                            The topic at hand, the topic which prompted the remark you were responding to, was FISA. Please forgive me for thinking you might be responding to the rest of the thread. Regardless, I don't think the idea that one should be careful about what they say and attempt to avoid verbal gaffes or pointless battles with no benefit qualifies as "cowering". I repeat: Just because McCain will attack Obama for nothing is no reason to give him something to attack with for no benefit.

                          •  Project much? (0+ / 0-)

                            You accuse me of taking myself too seriously yet you're the one telling me to "shut up" and "don't be a baby" ?  And now you're telling me to "chill out!"

                            You are bossy and rude. And I'm laughing at you.

                            Also, you are forgiven for not understanding that comment threads in diaries wind and weave in and around the topic at hand and quite often go off-topic completely.

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Thu Jun 26, 2008 at 05:01:22 PM PDT

                            [ Parent ]

                          •  Of course you are. (0+ / 0-)

                            I'm sorry if you interpreted "oh, shut up about..." as a command. And I don't know how you can justify calling me rude after having A: characterized my position as "cowering", and B: told me "fuck you." I'm not telling you to chill out because I'm attempting to "boss you". It's a friendly recommendation to try and engender an actual conversation, not the sad pissing contest you seem intent on having. If you would like, once again, to stop dodging the point, feel free.

                          •  Ah, so you took it personally (0+ / 0-)

                            I don't recall accusing you of cowering.

                            But cowering in fear that something you say or do will be used against you is pointless because chances are it will be used against you.

                            Thankfully, Obama says he doesn't do cowering.

                            Surely I shouldn't have to tell you what I have to tell the customer service rep at the phone company, "When I say 'you', I don't mean you personally. 'You' can be a generic all-encompassing term in English." In the context of the topic, that should be obvious.

                            Also, it's interesting that you take such umbrage at the word "cowering" but had no response to this:

                            Anytime we do anything against their positions
                            It's "ammo".  That's a ridicuous position. We have political differences with them.  We believe in a Constitutional Republic, they believe is a plutocracy run by an autocrat.

                            by nightsweat on Thu Jun 26, 2008 at 10:19:29 AM CDT

                            I added the bold for emphasis.

                            Hey, at least I didn't call your "position" ridiculous.

                            In short, much ado about nothing.

                            FYI, you'll find that most around here don't take too kindly to being told to shut up.

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Thu Jun 26, 2008 at 05:54:58 PM PDT

                            [ Parent ]

                          •  Good lord. (0+ / 0-)

                            I really don't give a damn that you characterized my position as anything, I'm simply astounded that you can generate so much pointless outrage over a casual "shut up" while embracing mischaracrerizing people's positions and swearing at them. I have never seen someone throw such a hissy fit over being told "oh, shut up about this particular word." This is exactly why I'm telling you to chill out, and why it's less an order and more a desperate plea by someone who actually wanted to discuss an issue...

                          •  And now it's "hissy fit" (0+ / 0-)

                            You just don't stop, do you!

                            I've gone out of my way to clarify my statements so could you please show me where I'm "embracing mischaracterizing people's positions..." ? At any point during this entire exchange you could have taken the opportunity to discuss the issue but you have chosen not to do so.

                            Who said anything about "outrage" ? However, I have every right to respond to your choice of words.

                            Your "astonishment" is disingenuous. Remember, I said I was laughing!

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Thu Jun 26, 2008 at 06:45:39 PM PDT

                            [ Parent ]

                          •  Yes, you did. (0+ / 0-)

                            Very clever of you. I'm sorry if I somehow misconstrued "fuck you" as outrage. When you said "Don't ever tell me to shut up" I must've somehow inferred a sense of umbrage you didn't feel. I don't know how I could possibly have mistaken this behavior for a hissy fit. My astonishment is genuine, I assure you, and growing.

                            And I said several times what my problem with your statement was. I think "cowering in fear" had nothing to do with the discussion at hand. I stated that just because McCain's going to attack Obama anyway is no reason to give him ammunition. You claimed "Republicans just make it up, they don't need ammo." I responded asking if you thought Kerry's verbal slip-ups had nothing to do with the success of attacks on him. You claimed that "But cowering in fear that something you say or do will be used against you is pointless because chances are it will be used against you." My response is that attempting to avoid or minimize verbal slip-ups is clearly not the same thing as "cowering in fear". I'm not sure where you want to go with that. What were you referring to, if not the concern I stated that we should avoid potentially damaging actions that yield no benefit?

                          •  Of course DEMS should avoid potentially damaging (0+ / 0-)

                            actions that yield no benefit. I never said they shouldn't. Imagine how quiet DKos would become if DEMS managed to do so. Obviously, there is much disagreement around here about how exactly FISA fits into that strategy. You may think the FISA bill is irrelevant, but many here do not.

                            One can attempt to avoid or minimize verbal slip-ups all day long, but they're going to happen. I never said avoiding them equated to cowering in fear. But worrying that a gaffe may occur and then worrying about how your opponent may use it against you ( which often leads to paralysis with DEMS ) is pointless, IMO, because the gaffes are going to happen and our opponent will be merciless in using them as "ammo." And nothing stops Repubs from simply making stuff up.

                            As I noted, even Obama himself acknowledges that DEMS have a reputation for cowering when under attack from the right.

                            For too long DEMS have been on defense. But Obama isn't playing by the old DEM handbook, hence, "Yeah, I don't do cowering." He has acknowledged many times that he's not perfect and may misspeak. He owns it, addresses it, and moves on.

                            IMO, Kerry's verbal slip-up wasn't the problem. All politicians make them. IMO, the real issue is the lack of an adequate response to the attacks his gaffes generated and the failure to regain an offensive position.

                            Also, you don't know how I "feel." I didn't use any words that convey such other than letting you know I was laughing. Please note the lack of exclamation points. Stating the fact that I've never been told to shut up was an attempt to show someone relatively new here ( although there's no knowing how long you may have lurked ) that a comment like that is uncalled for and rude.  

                            And you have no idea whether my "fuck you" was dripping with malice, loaded with sarcasm, or delivered bone dry.

                            Oh, wait, apparently because of your psychic powers, you do.

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Fri Jun 27, 2008 at 08:11:48 AM PDT

                            [ Parent ]

                          •  Hmm, I see. (0+ / 0-)

                   you somehow managed to interpret my "Oh, shut up about "cowering"" as bossy and rude, yet I must have incredible psychic abilities to interpret "fuck you" and "don't ever tell me to shut up", as, dare I say it, bossy and rude. I'm sorry, but I just don't know how to interpret "fuck you", except as hostile. Maybe you should work on your command of the vernacular?

                            Listen, I'm sorry you've never been told to shut up before. Maybe that's why you see no difference between being told to shut up and being told to shut up about a particular misused word. But in any case, if you're trying to "teach me", what you seem to have taught me is that occasionally people feel the need to make enormous to-dos of entirely harmless comments. I've been talking regularly around here for months now, and you're the first person I've ever seen react with such outrage to such a mild comment. I'm sorry your skin is so thin.

                            As to the point--If you have no problem with avoiding verbal gaffes or fruitless political risks, what was your problem with my initial comment that we should avoid them? Yes, I agree it's nice that Obama responds to attacks more effectively than Kerry did. So?

                          •  I did not misuse "cowering" (0+ / 0-)

                            But it is clear you have issues with the word.

                            It seems I need to repeat this:

                            Of course DEMS should avoid potentially damaging actions that yield no benefit. I never said they shouldn't.

                            How is this in contradiction to you?

                            I follow with:

                            Imagine how quiet DKos would become if DEMS managed to do so.

                            The underlying implication of that statement is where my point of view begins.

                            Obviously we are talking past each other on this.

                            And please, where is this "outrage" you keep referencing? Hang around a few gay people and maybe you'll learn the various ways "fuck you" can be delivered. Talk about thin skin if you think it's only dropped in a hostile manner. Maybe you should work on your command of the nuance that exists within the vernacular?

                            BTW, this exchange hardly qualifies as an "enormous to-do." This is boringly and excrutiatingly mild compared to what I've witnessed on DKos over the years. I sincerely hope you aren't reading that much into this.

                            For all you know, I'm just fucking toying with you.

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Fri Jun 27, 2008 at 09:21:57 AM PDT

                            [ Parent ]

                          •  Mmhmm. (0+ / 0-)

                            I didn't say it was in contradiction with me--I wondered what problem you had with my original statement if that's your position. I asked hwy we'd give McCain ammo, and you said "they don't need ammo". Well, obviously, but that doesn't change the fact that we shouldn't give it to them. What exactly were you commenting on if not that?

                            If that's really the end-all-be-all of your position, so be it, but it seemed that you were trying to in some way add to my statement, as you responded to it.

                            BTW, "hang around a few gay people"? What? Just who's psychic now? For all you know, I am gay. Regardless, of all the ways one can use the word "fuck", the use: "Fuck you, zbbrox. Don't ever tell me to shut up. If you can't take the discussion, then go somewhere else." positively screams hostility. If you don't read the hostility into that, please at least realize that most reasonable people would. Seriously.

                            And, yes, yes, you're just fucking with me, you're so in control of this conversation and everything else, you're so cool because you're laughing, and you've been here longer than me, and you so don't care about any of this despite the fact you just keep on talking, and I so wanna be like you when I grow up. Blah blah blah. Boy, have I learned my lesson.

                          •  The two statements can coexist (0+ / 0-)

                            You asked the question "Why give them ammo" and I made the observation "They don't need ammo..."

                            It all comes down to what DEMS do in their anticipation and response to the attacks that are coming.

                            I have dozens of witty snarky comebacks just ready to fly in response to your strategically bolded  reply but let's dispense with the petty stuff...  

                            So you're gay?

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Fri Jun 27, 2008 at 11:13:19 AM PDT

                            [ Parent ]

                          •  I guess I was just wondering... (0+ / 0-)

                   to interpret that comment, as saying "But cowering in fear that something you say or do will be used against you is pointless because chances are it will be used against you." makes it seem as though someone had, y'know, advocated cowering in fear. Which they hadn't. If you didn't intend to imply that, so be it.

                            And, no, I'm actually married to a beautiful young woman, but I do, in fact, have gay and bisexual friends, despite your snap judgment to the contrary.

                          •  It was a question, not a "snap judgment" (0+ / 0-)

                            Gee, maybe I should have stuck with the lesson snarky stuff.

                            I have yet to meet anyone who would "advocate" cowering in fear. But too often it is the position the DEMS find themselves in.

                            I've read many viewpoints about how FISA fits into the overall DEM strategy this election season. I have yet to find one completely convincing. I would also like to think the DEMS are brilliant strategists regarding this issue, but their track record leaves me doubtful.

                            Was it a bold move to try and get the FISA issue off the table or was it the result of the usual cowering about how it'll be used against them? Perhaps a bit of both? But remember, even their own colleagues call it capitulation.

                            I don't like the idea of kicking this can down the road, either. There's no guarantee Obama will be elected.

                            As I commented in another diary, whenever DEMS triangulate, calculate, or cooperate with Repubs, they usually end up getting royally screwed.

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Fri Jun 27, 2008 at 01:12:29 PM PDT

                            [ Parent ]

                          •  Question? (0+ / 0-)

                            You said "if you hang out with some gay people, you'll...." which clearly implied I had not. No question involved.

                            And in any case, the point of this diary is that, rather than being in issue for political maneuvering, the FISA law scarcely matters at all. The constitutional issue is inherent in the PATRIOT Act. There really doesn't seem to be much to be gained from opposing the bill--no matter what laws are passed now, the fourth amendment won't be restored until we rewrite PATRIOT. If you're going to complain about the lack of a bold, principled move, that's probably what it should be--it's high time we reworked PATRIOT.

                          •  I support a "Restore the Constitution Act" (0+ / 0-)

                            to undo the damage of the Patriot Acts. The idea has been bandied about here for some time.

                            My position on the FISA issue is complicated:

                            First: I've spent hours calling various Congresscritters voicing my objection to telecom immunity. I have a personal investment of time and energy fighting for the rule of law.

                            Second: I know they have been spying on us and will continue to do so. All in the name of "security." However, as I pointed out in another diary, do really smart terrorists use their cellphones to plan attacks anyway? I think the "increased chatter" we hear about is a diversion. I would be royally pissed if some goober hiding out in a cave somewhere in Afghanipakistan was able to thwart all our techno-gizmo security efforts simply because he was smart enough NOT to use his goddamned cellphone! IMO, wiretapping for "security" is all so much bullshit and the proverbial shiny object.

                            Third: I think it's long overdue that DEMS took a principle stance on anything related to Bushco. FISA would have been a great start.

                            Fourth: I acknowledge the difficult position Obama has been cornered into regarding FISA and I direct my ire where it belongs - at the DEM "leadership." There are too many competing explanations as to how and why this came about to be 100% positive which is correct. Probably a bit of "all of the above..." Oh, and Blue Yellow Dog DEMS belong in hell.

                            Fifth: I am not convinced that a "principled stance" by Obama re: FISA would hurt him in the general if the DEMS for once get off their cowering asses and counter the repub talking points. Counter arguments easily write themselves when the leader of the opposition is a known liar and has approval ratings consistently below 30% in an election year where 70+% or more of the electorate thinks we're headed down the wrong path. Here's a quick example of a reframe to RW talking points I've made in other diaries:  

                            George Bush lied about Iraq. He lied about torture. He lied about Katrina. George Bush has lied to you about many things. Do you trust George Bush with your family's privacy and security? I don't.

                            Whatever Obama decides re: FISA, he still gets my vote. The alternative is unacceptable and too dangerous. But god forbid Obama doesn't win and we've missed an opportunity to get a smidgen of accountability.

                            Lastly: Despite what John Dean says about how poorly the FISA bill is written I am not convinced that it was intentional or that there is any guarantee that an Obama administration ( no guarantee on that one either ) will persue criminal charges later. DEMS just haven't proved that clever. I would gladly be proved wrong. Keith Olbermann's Special Comment about this on Monday should prove interesting.

                            Not complete or concise but more a general outline. Any way you look at it, we are in a deep shit-filled hole.

                            BTW, a mere suggestion that you hang around gay people can hardly be considered a "snap judgment." I was simply using what I believed to be an obvious and perhaps helpful stereotype to underscore the point about nuance.

                            Also, given your self-expressed ability to glean the definitive meaning and intent of the written word, may I make yet another "snap judgment" by suggesting that you team up with Dobson so the two of you can tell us once and for all what the Constitution really says. After that, you can clue us all in on the Bible. After all, there's no room for interpretation of any of those written words.  

                            Through all your faults and all my complaints, I still love you.

                            by jayden on Sun Jun 29, 2008 at 05:52:52 AM PDT

                            [ Parent ]

        •  Well, that's good! (1+ / 0-)
          Recommended by:
          Los Diablo

          Now, instead of having "Weak on National Security" ammo (which, btw, they will STILL use), they can now resurrect some of John Kerry's leftover "Flipflopper" ammo!

          Or did you ignore the polls that suggested that some people supported Bush over Kerry because, while Bush might have been an unfeeling drone to the right-wing conservative agenda, he was pretty HONEST about that.

          I'll vote for Obama, yes. But I tell you this, it is good for Democrats that McCain is running. Because I would vote for someone who is consistently honest and ETHICAL over someone who supports my opinions. Opinions can be changed for the sake of political expediency. I want honesty in my government, and transparency, not JUST a furthering of my particular political agenda. That's the "real change" we are looking for. It has nothing to do with social security, abortion, etc etc. The "real change" that will unite Americans behind a candidate is honesty and principle, REAL honesty and principle.

          Do we even have candidates like that? Is it even possible for our current political system to produce people with those qualities? Doesn't it seem like the very ROOT of our system only works for those willing to sell their soul for a chance with the gold fiddle?

          Condemnant qui non intelligent.
          Economic: -6.75
          Social : -5.03

          by cognizant on Thu Jun 26, 2008 at 12:43:56 PM PDT

          [ Parent ]

          •  Being open and honest.... (0+ / 0-)

            ...does not have to come at the expense of being politically savvy. Obama's against telcom immunity, and said so. The bill is otherwise of little consequence, so why not support it if it can be a useful political tool? If he then says "McCain cared more about corporations than protecting this country", he won't be lying.

      •  I don't think (13+ / 0-)

        the diarist is taking an apologist position.  I'm really glad to see this diary beause I'm also a criminal defense lawyer.  FISA is in a way the least, last straw from a fourth amendment standpoint anyway--the worm-ridden cherry on the shit sundae that is the Non-Patriot Act.

        That said, I agree though with the rest of your comment.  I'm pretty mad at Obama right now.  This whole FISA thing feels unprincipled--and, what's more, it feels politically dumb.  I'm not sure what else is going on behind the scenes here, because it seems to this observer that there is everything to be gained politically, and nothing to be lost, by at least appearing to say Bite Me to the current administration at every possible turn.  And there is literally no constituency for telcom immunity except:  1. Telcoms; 2. Campaign coffers; and 3. Administration offices and lawmakers who want to sheild themselves from the sunlight of scrutiny of their own lawbreaking.  And aside from that constituency, the only people who give a crap about FISA are civil libertarian types, for the most part, rather than most voters.  So I don't think he's scoring political points with undecided voters but he might be costing himself campaign volunteers.

        But I don't read this diary as an apology for Obama's position.  

      •  Did you read the diary? (0+ / 0-)
    •  How about both (2+ / 0-)
      Recommended by:
      dewley notid, SciVo

      just sayin'

      "Don't Piss Down My Back And Tell Me It's Raining"

      by Helzapoppin on Thu Jun 26, 2008 at 06:27:58 AM PDT

      [ Parent ]

    •  Tipped and Recommended (7+ / 0-)

      Because this is an important discussion that needs to be had.  However, I am not at all sure that Obama sees it the same way as you and even if he does, there is nothing to gain by supporting this FISA bill, and much to lose.

    •  Excellent diary... (4+ / 0-)

      Thanks.  Well put.

      "We're all working for the Pharaoh" - Richard Thompson

      by mayan on Thu Jun 26, 2008 at 07:19:12 AM PDT

      [ Parent ]

      •  i agree that this was a good diary, but (2+ / 0-)
        Recommended by:
        Calfacon, NCrissieB

        my issue with the FISA bill is accountability. i wanted to see the telco companies go to trial in civil courts for their participation in illegal activities. according to the AP, there were 40 lawsuits filed already.

        the diarist argues persuasively that the secrecy of FISA warrants effectively voids the 4th amendment, but my concern here is allowing litigation against the telecom companies who illegally cooperated with the government without a warrant.

        while i respect the diarist's opinion and analysis, it is worth noting that the ACLU feels strongly that telecom immunity is a mistake.

        •  I agree with the ACLU. (0+ / 0-)

          I think telecom immunity is a mistake.  Indeed, I think any FISA bill that doesn't restore the "wall of separation" between intelligence-gathering and criminal prosecution is a mistake.  I do not like this bill.  Please don't think otherwise.

          My point is that with this Congress and this President - in an election year - this is probably the best bill that stands any chance of passage.  While I'd rather they did nothing at all, I also recognize that this is an election year, and that election politics are an issue whether we like it or not.  Moreover, stripping telecom immunity from this bill would not restore our Fourth and Sixth Amendment safeguards.  A FISA warrant has no Fourth or Sixth Amendment safeguards, because you can't challenge the factual affidavit upon which a FISA warrant was issued.

          Given all of that, to me this bill seems more like election year political theatre than a meaningful attempt to restore constitutional safeguards.

    •  Best diary to date on this subject (7+ / 0-)

      Thanks for writing this. This is the kind of information and analysis that is rarely reported elsewhere.

      "In the unlikely story that is America, there has never been anything false about hope."

      by Pacific NW Mark on Thu Jun 26, 2008 at 07:35:28 AM PDT

      [ Parent ]

    •  thanks for this analysis, (3+ / 0-)
      Recommended by:
      ZinZen, Calfacon, NCrissieB

      and it's a nice attempt to throw in a good word for our man.

      but I don't think this addresses the 2 main concerns about FISA:

      1.  Telecom Immunity
      1.  Expanded Powers
      •  This wasn't really about Obama. (1+ / 0-)
        Recommended by:

        This was about highlighting the real reforms we should be demanding in a FISA bill.  To answer your points briefly, as I've addressed them elsewhere in the thread:

        1.  Telecom immunity is a red herring.  As I've noted in other responses, in any civil case, the defendant can offer in defense that he acted in good faith under color of law, that is, that he complied with an apparently reasonable request from an authorized government agency or official.  That defense is usually an issue of fact to be decided by the jury.  This bill makes it a threshhold issue of law to be decided by the judge.  But it doesn't invent some new defense that didn't already exist.
        1.  As to expanded powers, I tried to make clear that the most important expansion of powers issue here is the USAPA's taking down the "wall of separation" between intelligence-gathering and criminal prosecution.  That is the real threat to our Fourth and Sixth Amendment protections, because if you can't challenge the factual affidavit upon which the FISA warrant was issued - and you can't - then you have no constitutional protection, even if the Bush Administration followed FISA to the letter.

        If your concern is safeguarding the Fourth and Sixth Amendments - and not just suing the telecoms - this FISA bill wouldn't help, even if it stripped telecom immunity.

    •  Very well done. (3+ / 0-)
      Recommended by:
      ZinZen, NCrissieB, Parhelion14

      Very well put. Intelligently argued.  I do so love some common sense with my morning coffee.

    •  Thank you! Well done! n/t (1+ / 0-)
      Recommended by:

      IT TOOK five years, the deaths of 4,100 US soldiers... to make Iraq safe for Exxon. ~ Derrick Z. Jackson

      by Gorette on Thu Jun 26, 2008 at 07:38:35 AM PDT

      [ Parent ]

    •  how can we fix something IF we have no idea (7+ / 0-)

      how badly it has been broken...  its like trying to fix the toilet by replacing the lightbulb in the fridge.

      the reason it is important to get these lawsuits into court is becasue we would be entitled to DISCOVERY....and without that we have NO IDEA how far we have to go to fix what the bush admin has done to FISA and the fourth amendment.

      So we are now at the place where legislators are giving blanklet immunity to telecoms without even KNOWING what theyt are immunizing them for doing....

      and THAT pretty much kills the RULE OF LAW...  which is much worse then anything else when it comes to this issue.

      for when blanket immunity is given for crimes NO ONE actually knows about and its given retroactively what reason is there for any telecom to EVER fear breaking the law, on the request of another President... who could just as easily strike another retroactive free pass deal for them in the future.

      "Bomb Bomb Bomb Iran" is NOT a coherent Mid-East Strategy Mr McCain

      by KnotIookin on Thu Jun 26, 2008 at 07:42:12 AM PDT

      [ Parent ]

      •  Remember that Obama is on the record.... (5+ / 0-)

        Please remember that Barack Obama is on the record as saying that as president, he would direct the Department of Justice to investigate these actions, and to prosecute if evidence of criminal activity turns up.  And this bill does not provide immunity from criminal prosecution.

        •  No offense but... (7+ / 0-)

          He also said 6 months ago that he supported Dodd's filibuster of telecomm immunity in the new FISA bill.

          At this point I'll believe that the DoJ has properly investigated these actions when I see the people who orchestrated the criminal activity in this administration go to jail.

          He had my faith up until that point, now he has to earn it back with his actions.

          I still support him, and I'll still vote for him, hell I might even donate some more, but faith alone is not enough.

          In his statement he spoke of the IG as a regulatory entity for issues like these.  I live in the DC area. I have friends and colleagues who work with people in regulatory positions within the federal government.  I can tell you the "trust me I'll put the IGs on it" isn't nearly adequate.

          I recognize your point from the diary the "wall of separation" that the Patriot Act was the real death of the 4th, but I'll be damned if I let the telecomms off the hook for political expediency.

          "They invade our [government], and we fall back. They assimilate [the] entire [Department of Justice], and we fall back. Not again. The line must be drawn here!

          This far and no further! ..."

    •  Thank you, thank you, thank you Crissie! n/t (1+ / 0-)
      Recommended by:
    •  The wall of seperation.. (1+ / 0-)
      Recommended by:

      Also needs to be put in place for non-citizen communications as well. Because you KNOW that information gathered for "national security" purposes is being used in order to facilitate local political change in foreign countries.

      Nobody really supports a strict reading of the 4th amendment, which would make all survelience require a public hearing with the target present, so they can challenge it in a court of law.

      So what's needed is the wall of separation. And to be more precise, it's about electorally keeping those who would tear down that wall away from the levers.

      This is our story...

      by Karmakin on Thu Jun 26, 2008 at 07:51:18 AM PDT

      [ Parent ]

    •  so answer me this, Crissie: (3+ / 0-)
      Recommended by:
      shaharazade, Calfacon, NCrissieB

      How is telcom immunity not a violation of the First Amendment:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


      "Well, yeah, the Constitution is worth it if you can succeed." -Nancy Pelosi, 6/29/07.

      by nailbender on Thu Jun 26, 2008 at 08:07:02 AM PDT

      [ Parent ]

      •  The right to petition.... (5+ / 0-)

        First, suing a telecom is not "petitioning the government for redress of grievances."  In order to do that, you'd have to be suing the government itself.

        Second, please remember that Barack Obama is on the record as saying that, as president, he will direct the DOJ to investigate these actions, and that if evidence of crimes is revealed, they will in fact be prosecuted.  And this bill provides NO immunity from criminal prosecution.

      •  I'm no lawyer but (0+ / 0-)

        It's clear that "positive immunity" (I think that's the term, but I'm probably wrong) means you can drag the damn telecomms into civil court.  Then you have to prove they weren't acting under "color of law."  If they can prove they were...

        Well, then it doesn't matter that they broke the actual law, because they thought they were following it.  On the other hand... if you can prove they broke the law and knew full well that a presidential directive didn't relieve them of their obligations under the Fourth Amendment (and guess what, since some telecomms refused to engage in the wiretapping, might be HARD to prove) the judge can give you standing and the lawsuit proceeds.

        It doesn't prevent you from suing.  It just puts a greater burden of proof on you.

        And none of this has anything to do with the First Amendment unless the government uses FISA-derived information to prosecute you for your religious or political beliefs.

        "It's what you think you know that just ain't so that will get you into trouble." --Will Rogers

        by winterbanyan on Thu Jun 26, 2008 at 08:35:55 AM PDT

        [ Parent ]

    •  Tsk, task (2+ / 0-)
      Recommended by:
      Divertedone, Calfacon

      As a lawyer,  you should be familiar with false dichotomies and similar fallacies.  As a Kossack,  you should know better than to try to use them here.

      There is no "the last bastion" for the defense of any of our rights:  we need to defend them from every attempt to chip away at them.  Even people who don't know history have seen plenty of recent examples of how it's done,  and how hard it is to undo.

      It's great to see someone pointing out how many arguably-more-egregious abuses have taken place lately (don't forget the executive orders designed to maximize the dissemination to local LEOs of info that intelligence agencies would formerly have never even acknowledge existing).  But you should be using that information to deepen and broaden the outrage against what's been done,  not to minimize what's happening with FISA now.

    •  Obama sounds like he may be planning prosecution (0+ / 0-)

      .... of the telecoms next year (assuming he wins, of course). If so, that's a lot better than civil suits. But based on what you've said about the FISA court itself, I think what we also need to do is make sure they CAN'T remain as secretive as they now are.

      Oh, and of course if he IS planning something against the telecoms, I think that's a pretty good hint that he's gonna go after ALL the possible crimes of Bush, his minions, and their enablers.

      "Any dictator would admire the uniformity and obedience of the U.S. media." -- Noam Chomsky

      by ratmach on Thu Jun 26, 2008 at 07:19:57 PM PDT

      [ Parent ]

    •  thank you NCrissieB (1+ / 0-)
      Recommended by:

      This is great information, but it is just about the most depressing diary I've read recently.  Others have got my dander up - this one really pulls the rug out from under me.
        My daughter is taking Civics and US History courses.  The Civics course are increasinly becoming history courses. I find myself say again and again "Well it's not legal,it's not constitutional, it's just what the Bush Administration has been getting away with.
       I never in my deepest darkest nightmares ever though my country would come to this.

      •  Please don't be depressed. (0+ / 0-)

        We've been here before, and we've fought and won these battles before.  COINTELPRO was a nightmare for a whole lot of people.  It didn't get stopped until the post-Watergate elections of 1974 and 1976 enabled meaningful Congressional action.

        It's our generation's turn at the wheel, hon.  That's all.  Please don't despair.

    •  Real Safeguards (0+ / 0-)

      NCrissieB,  I so agree with you.

      I have long seen the USAPA is the real "constitutional rights buster", so making changes there would be a good place to start in the restoration of a separation wall between itg-gathering and criminal investigations.

      It is my thinking that Obama sees the issue of telco immunity and this compromise FISA bill as a bit of a political "red herring" not worth getting himself in a tizzy over. There are much bigger "fish to fry".

  •  we used to be secure in our homes and property (9+ / 0-)
  •  Thanks for some nuts and bolts information (26+ / 0-)

    It makes me less uneasy about the bill.

    White woman over 50 for OBAMA!! (Endorsed 10/07)

    by Glinda on Thu Jun 26, 2008 at 04:56:32 AM PDT

    •  Yes... (22+ / 0-)

      One of the things this diary points out is the fact that unlike those of us who are up in arms about Barack's sellout, we don't actually know much about Constitutional Law.

      This diarist is obviously more knowledgeable on Con Law issues than 99.9% of us who are upset by Barack's middle path stance. And Barack is also WAY smarter than us on this issue.

      I think we got so used to having a president who was dumber than us that we are going to have a hard time trusting the inscrutable judgment of a president who actually knows a lot MORE than his constituency about the issue at hand.

      Not to say we shouldn't be upset either, but most of us don't have the knowledge base these folks have.

      Thanks for an excellent diary. I understand FISA better now.

      •  Look people, (14+ / 0-)

        Barack needs to be elected now.  Every politician, once nominated, runs to the middle.  Let's get him in office first, then see how he governs and hold him accountable.  Sheesh.

      •  I don't have a knowledge (8+ / 0-)

        base on con law, but I do know what Obama's campaign promises were, and I see no clear explanatory statement of why he switched positions or why he thinks Feingold and Dodd are wrong.

        •  They are playing (5+ / 0-)
          Recommended by:
          paige, rolandzebub, mikolo, soms, paintitblue

          Good cop bad cop. And as the diarist points out, this is not the hill for Obama to die on.

          In the unlikely story that is America, there has never been anything false about hope.

          by alkalinesky on Thu Jun 26, 2008 at 07:03:43 AM PDT

          [ Parent ]

        •  exactly (3+ / 0-)

          I agree with you utterly.  

          I have no issues with someone changing their mind (hell, I do it all the time - woman's perogative, eh?).  I have no issues with rethinking something - in fact, it would thrill me to see evidence of thinking... something that has been wholly missing in our government for the last stretch of years.

          Obama won me because he chose to speak with us as rational, thinking adults.  He chose to appeal to the better side of our natures, rather than take the easy route of appealling to our worst.  It was, in my opinion, a miracle to see that in a politician, and even more of a miracle to see it successful in current American society.  

          But the upshot of that is that he wound up with a group of exuberant, thinking supporters.  He challenged us to think beyond politics, to think beyond fear, to imagine the better place that we can make this country into, and many of us were thrilled to accept.  He challenged us to participate in our government.  To remind our politicians that it is us - we the people - who truly hold the power in this nation.

          So now, "trust me" won't cut it.  Its not that I don't want to trust him.  Its that I am scared.  I can admit that.  We have been lead astray by the "Trust Us" brand of politics before.  I am behind you, Senator Obama, and I truly will be, if you just explain to me what I am getting behind.  You wanted us to participate in the process, to remember that the power was ours ... and here we are.  Waiting for you to point the way.  But just remember, you didn't recruit blind followers.  You recruited something that is potentially much more powerful than that.  You recruited participants.  

          Just explain the rules of the game and we will play it with you.

          •  Wow, Yes! (1+ / 0-)
            Recommended by:

            I'm not aiming to live in a democratic version of the braindead politics where we cannot expect explanations or offer criticism of our leaders.  
            Posters says things that boil down to "you need to have faith" when I have be harshly critical toward the 23%'s who BELIEVE that W. is doing what is best for the country.  I've been critical because these people aren't using their critical thinking skills or at least demanding that W. give a coherent explanation for his highjinx.  
            Obama needs to do better and so do we. We cannot give him a pass on issues on hopes that he's just trying to pull the wool over republican/independent's voters' eyes.  He can and must offer real rationalizations.  

            -4.63, -5.59 The Right-wing Noise Machine is SOOO much better at controlling the debate than we are.

            by Divertedone on Thu Jun 26, 2008 at 08:14:11 PM PDT

            [ Parent ]

      •  Agree wholeheartedly, and can't wait for (0+ / 0-)

        the (soon_to_be_if_we_keep_our_shit_together) President to be highlighting these differences in addresses to the nation.

        Obama, anti-McSame, and 50% off all IMPEACH static cling window decals@

        by netguyct on Thu Jun 26, 2008 at 07:34:28 AM PDT

        [ Parent ]

      •  oh, and one more thing.... (0+ / 0-)

        great comment... and while I still know little about Constitutional Law, I know so, so, soooo much more than I did 18months ago when I found this place.

        Many thanks to subject matter "experts" for their input.

        (FWIW, I hate the word "expert" because it always, to me, implies, "learning is complete."  It's a long journey we're on, and every day is another opportunity to learn.)

        Obama, anti-McSame, and 50% off all IMPEACH static cling window decals@

        by netguyct on Thu Jun 26, 2008 at 07:37:36 AM PDT

        [ Parent ]

  •  I think you miss the point (28+ / 0-)

    My outrage hinges mostly on the Telecoms being given immunity for breaking the law, not for the act of wiretapping alone.
    No normal person can commit millions of crimes and then go to Congress and demand they change the law. This should hinge on whether or not ATT broke the law or not.

    President Theodore Roosevelt,"No man can take part in the torture of a human being without having his own moral nature permanently lowered."

    by SmileySam on Thu Jun 26, 2008 at 05:13:44 AM PDT

  •  Thank you! (28+ / 0-)

    A very cogent recapitulation of facts.  I happen to share most of your thoughts.  But, alas.  It is not the Patriot Act that is at the fore, at present.  The aspect of telecom immunity will effectively, if passed, shut off any discovery process relative to the warrantless TSP.  How can the FISA possibly be improved if no one is to know exactly what abuses occurred, where systematic breakdowns of protections took place?  And then there is the issue of 'blanket' warrants, reduced judicial review, etc.  THAT (and other issues) is why I oppose the passage of the bill before the Senate.

    But, I absolutely agree with you, that the wall between intelligence collection and the assemblage of criminal evidence desparately needs to be restored, possibly with some well-thought-out and absolutely transparent procedures that allow for the exchange of information that, procedures very clear about the qualifying conditions and that allow challange in open court.

    Excellent diary.  Thanks... and cheers:)

    Life is not a 'dress rehearsal'!

    by wgard on Thu Jun 26, 2008 at 05:13:56 AM PDT

    •  I agree that this issue needs to be worked. (29+ / 0-)

      The question, as a matter of political strategy, is how and when to do that work.  I don't think this particular bill - which provides no protection whatever from the misuse of FISA - is worth the political capital.  As a matter of fixing real problems, and Democrats positioning themselves to fix real problems, this bill is "not the hill to die on."

      Good strategy means carefully choosing which battles you fight, and when, so you have the best chance of actually solving some problem.  Fighting over this (frankly!) trivial bill seems a waste of our time and energy, because it won't preserve our Fourth Amendment protections regardless.

      I do want to have a national debate on civil liberties, safeguarding our constitutional rights, and the like.  But I'd like that debate to happen in the context of a bill that would have some real impact, and offer some real protections.  I don't want to flail away at pseudo-protections thrown up by the GOP in order to distract us from the more threatening intrusions they'd like us to take for granted.  Leaning on FISA as if it were the final bastion of the Constitution is leaning on a rubber crutch.

      Thank you for your comments, and I hope you'll join me in calling for the return of real constitutional safeguards.

      •  last bastion (7+ / 0-)

        Your diary is right on.  The Patriot Act is definitely the heart of the monster.  If I recall, Spitzer's activities were exposed because his bank reported unusual transactions - as required by the Patriot Act.  

        The problem with the FISA bill is that BushCo keeps pushing us down the slippery slope and that makes the fight against the telco immunity worthwhile.

        We have to fight them on the beaches before we can effectively overrun the heart of the 3rd reich.  

        "A revolution without dancing is a revolution not worth having"

        by Mensor on Thu Jun 26, 2008 at 06:48:58 AM PDT

        [ Parent ]

      •  Great analysis (2+ / 0-)
        Recommended by:
        Prognosticator, NCrissieB

        Thank you. With your help I think I now understand why Obama has not chosen this FISA law as a 'hill to die on' even though so many others like Sen. Dodd are saying just the opposite.

        There has been a constant drumbeat here that Dodd is 100% correct, and Obama's "failure" to stand with him and fight this bill, right here and right now, can only possibly mean one thing: that Obama is a coward and a sellout.

        I don't beleive this, but sometimes found myself wondering well, why isn't Obama leading the charge and making this FISA bill more of big issue? What is the real reason? I do not believe it's because he's a coward. I do not believe that he doesn't care about the constitution.

        So I felt that there had to be another explanation, and your diary and comments have provided the context that makes it make sense.

        Obama is a constitutional law expert and he must know the very things you are saying, and he is focused on his long-term strategy. The current tactical battle that he has to win and focus on is winning the white house, and bringng with him a strong democratic majority in the house and senate. He has to pick his battles based on complex priorities and I still think he knows what he's doing and will be a great president.

  •  Here's my frustration over the FISA argument (21+ / 0-)

      I think we are so worked up over FISA (and to a great deal it is important) but why isn't this same anger and frustration over Congress and the administration shown when they are able to put cameras on the street corners, tap into our bank accounts/medical records, or other matters of our rights violated in the name of "security"?

      We get bent out of shape over FISA, but habeas corpus is off the books and we don't hear as much as a drop of our Congress to re-establish it back on the books again.

     You are right. Until we put the "Patriot Act" and other irrational laws in better context (or strip them altogether off the books) and re-figure how FISA and other security measure should be carried out that this debate is both a distraction and a wedge in our pursuit of re-establishing sanity in the White House and Congress again.

    "Time to eat all your words, swallow your pride, open your eyes..." --Tears for Fears (Seeds of Love)

    by Abacab on Thu Jun 26, 2008 at 05:15:04 AM PDT

  •  The FBI couldn't give two shits about (1+ / 0-)
    Recommended by:

    whether or not somebody is bringing some weed to a barbeque. They're a federal agency, which means they suck up enormous amounts of cash to run investigations. In order for them to pursue your client into his backyard, they're going to have to burn at least 100 grand to go through all of the hoops that the FBI would have to go through in order to show up at your client's house looking for a bag of dope. A judge would have to issue ANOTHER warrant to get into your client's house. The judge responsible for issuing that warrant is going to be a judge without a security clearance. He isn't going to issue the warrant, because the FBI isn't going to be able to explain why they have probable cause to have him sign off on this. If through some miracle, the FBI DOES manage to get into your client's backyard to find the weed being brought by the client's brother-in-law, the federal government will then have to spend ANOTHER several hundred-thousand dollars doing all of the shit that the FBI does before it brings a case into a federal courtroom. There, THAT judge is going to toss the case, because no one's going to be able to explain to the judge where the trail leading to the warrant and the seizure of evidence comes from. And while a state judge may be cowed into letting that ride, a federal judge is like a Chinese warlord, and he's going to tell the FBI to take a long ride off a short pier. There's no way evidence seized as a result of that warrant is going to come into a trial in those circumstances. Not a bag of weed. The prosecutor wouldl be lucky if he wasn't admonished by the court for wasting its time.

  •  Thank you...anyone who cares to understand.... (9+ / 0-)

    should understand now.

    Those who simply hate Obama because he's not progressive enough for them will continue to do so.

  •  The Patriot Act is the problem (14+ / 0-)

    for sure...but I hardly think that adding more bad legislation expanding the powers, not really of the FISC, but of the executive, is a good step to over-turning the Patriot Act.  Also the outrage is not limited to Obama, it is against Dems who should have no need to pass this bad bill that will only further occlude the real lawbreaking that has gone on.  I appreciate the pragmatist some great points, but if your case is overturning the Patriot Act, as a legislator do you not want to start with not creating more secrecy around these issues?

    If you want to truly understand something, try to change it. - Kurt Lewin

    by anim8sit on Thu Jun 26, 2008 at 05:31:23 AM PDT

  •  Oh boy, if only I had the power to get this rec (11+ / 0-)

    listed right now.  Everyone on this site needs to read this and understand this.

    Great job.

  •  Great Diary (18+ / 0-)

    The main reason I cared about the telecoms getting immunity was that their lawsuits were the only avenue for finding out what Bush has been doing over the last 7 years.  The fix is in because both the Repubs and the Dems know the President has committed felonies and they can only stomach impeachment for lying about oral sex not real high crimes and misdemeanors.  Telecom immunity shields THEM from doing their duty.

    My question is will a President Obama and a Democratic Congress overturn/revise the most egregious portions of the Patriot Act, the Military Commissions Act, and FISA?  Will they investigate the last 8 years to expose the abuses to ensure they don't happen again?  I can take the practical, political realities for now, if I know that the Constitution will be restored on 1/20/09.

  •  Thanks for this. The ins and outs of the (8+ / 0-)

    Surveillance State  are pretty opaque to many of us, even those of us who care deeply about the Fourth Amendment and the Patriot Act.

    A question and then a comment:  first, is part of a solution to vest criminal prosecution of terrorism suspects in some part of the foreign intelligence surveillance structure--i.e. nobody wants the country to be unable to pursue Muhammad Atta-types?

    The comment:  I have struggled to see what BO gains from supporting this bill.  I don't believe he is a recipient of telcom largesse, like Steny Hoyer and company.  But what is his motivation?

    While watching some MSNBC program last night, it occurred to me:  his 19-point polling deficit vis-a-vis John McCain on the terrorism question has made it imperative for him to (a)not do anything to make it worse; and (b)pay real attention to things he can do to eat into McCain's lead on that question.

    Anybody who thinks John McCain would be better on the Patriot Act that BO is crazy.  So I'm reluctantly coming to the conclusion that this is an important political move for him.  I may not like it, but I guess at this point I don't see any alternative, given political realities.

    •  Obama is joining the filibuster (3+ / 0-)
      Recommended by:
      tikkun, Leslie in KY, David Kroning

      Read it yesterday.  He said we need a far better bill.  All he said about the current bill was the House version was better than the Senate version...

      And from this we get all this outrage.  But maybe I missed something else...

      "It's what you think you know that just ain't so that will get you into trouble." --Will Rogers

      by winterbanyan on Thu Jun 26, 2008 at 05:49:57 AM PDT

      [ Parent ]

      •  If he is, I'm surprised. I watched his news (7+ / 0-)

        conference, and he specifically said that telcom immunity was "not more important than the security of the American people."

        That statement underlies my analysis above.

        •  Thanks for the info (2+ / 0-)
          Recommended by:
          Fasaha, soms

          So much for the MSM. LOL

          Oh well, I can still see why he doesn't want to get into this debate at this time.  This is one for a better day, with a majority in both houses and a dem president.

          Because right now, no real change is going to happen.

          But whoever directs the justice department can leash this crap while the slow meat-grinder of law-making and erasing gets to work.

          For that, I'll take Obama over McCain without skipping a beat.

          "It's what you think you know that just ain't so that will get you into trouble." --Will Rogers

          by winterbanyan on Thu Jun 26, 2008 at 05:57:31 AM PDT

          [ Parent ]

      •  Joining the filibuster means (7+ / 0-)

        voting against cloture. That vote was yesterday evening and he wasn't there to participate.

        Let the great world spin for ever down the ringing grooves of change. - Tennyson

        by bumblebums on Thu Jun 26, 2008 at 05:54:26 AM PDT

        [ Parent ]

        •  I can't imagine a presidential candidate (1+ / 0-)
          Recommended by:

          having the time to participate in a filibuster.

        •  Neither was Hillary.... (1+ / 0-)
          Recommended by:

          and the vote was 80-15 in favor of cloture.

          How the hell does Obama's presence change anything?

          •  I'm not saying his vote (2+ / 0-)
            Recommended by:
            buckhorn okie, soms

            would have changed anything. Just noting the definition of filibustering, for accuracy. I'm just that way.

            Let the great world spin for ever down the ringing grooves of change. - Tennyson

            by bumblebums on Thu Jun 26, 2008 at 05:58:33 AM PDT

            [ Parent ]

          •  I think it is a long step,, (9+ / 0-)

            to go from criticizing this bill, criticizing the Democratic leadership who pushed it through, to saying that people who do criticize this are some kind of "I hate Obama" nuts, or that we want to hand the election to McCain...for goodness sakes...we are writing and commenting HERE, at the DKos...I am sure that 99% of us want Obama elected.  Criticizing this bill and the circumstances surrounding it does not make us haters, or weird anti-Obama means we don't like the Democrats caving on an issue that they did not have to. So please...give us at least that much respect, instead of parading the meme that any criticism=anti-Obama sentiment.

            If you want to truly understand something, try to change it. - Kurt Lewin

            by anim8sit on Thu Jun 26, 2008 at 06:04:19 AM PDT

            [ Parent ]

            •  Do you actually read or listen to any other media (1+ / 0-)
              Recommended by:

              This shit is all over the place...McCain is using this FISA kerfuffle to point to Obama's "flip-flopping" and his "weakening base."

              Read the comments over at Politico and RedState and elsewhere.  

              The words of the Obama "betrayed us" crowed are music to the ears of the enemy.

              Good job.  Elections are about winning more votes than the other guy...and you're doing a nice job of making him lose votes.

              •  Yeah...I do...a lot (6+ / 0-)

                and that kind of snotty remark is getting old.  Just because McCain is making hay about it doesn't mean people care about it.  McCain also said that Boumediene was the worst decision in the history of SCOTUS... it does not make it true. It also does not make it true that raising criticisms will help McCain overcome a real perception problem with voters, or, for that matter, make republicans suddenly look so WOW!  Also, I am not criticizing Obama singularily...I am criticizing all Congressional Dems that enabled this bad legislation.  So please stop telling me I am aiding the enemy...if I wanted to march in lock step I would be in the OTHER PARTY.

                If you want to truly understand something, try to change it. - Kurt Lewin

                by anim8sit on Thu Jun 26, 2008 at 06:22:41 AM PDT

                [ Parent ]

                •  And, need we any more reason to know... (1+ / 0-)
                  Recommended by:

                  WHY we lose election after election?

                  •  I do not think you strategy (6+ / 0-)

                    as indicated by your behavior on this likely to win any elections either.  Criticism is is one dimensional to infer that Democrats lost elections because they had criticisms of each other...they lost elections in the past because people became convinced they could not deliver and were corrupt, as the repubs have been painted currently.  I would argue that pointing out to congressional democrats not to deliver this bill was in their best interest to make them look strong.  Giving in was a loss....pointing it out doesn't make me enemy.  Either way, it does not justify the snotty remarks you are making.

                    If you want to truly understand something, try to change it. - Kurt Lewin

                    by anim8sit on Thu Jun 26, 2008 at 06:41:36 AM PDT

                    [ Parent ]

                    •  I think (5+ / 0-)

                      the Democrats have lost elections specifically because they didn't stand up and yell when crap like the Patriot Act and this current FISA bill were happening.

                      I can't remember which former president it was - maybe Truman? - who said something along the lines of "Given a choice between a Republican or a Democrat who acts like a Republican, the people will choose the real thing."

                      I think Democrats have been losing because they have not been loudly standing up for the values of the Democratic party.  Of course they look weak.  They've not stood up in decades for what are supposed to be issues important to Democrats.

                      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. - 9th Amendment

                      by TracieLynn on Thu Jun 26, 2008 at 08:17:26 AM PDT

                      [ Parent ]

                      •  You're very right except for this time (2+ / 0-)

                        There is still a significant number of people in this country that, even though they're not saying it out loud like they were in the days right after 9/11, are scared shitless of "them".  

                        I can't tell you how many conversations I've had with people that seem completely rational that still, when pressed, talk about Mideastern people as this bunch of crazed killers wanting to eat our babies.  It blows me away.  I get this real glimpse into what it must have been like in pre-Nazi Germany.  

                        Bills like FISA feed right into that irrational fear when it comes time to push a button (or a chad) in a voting booth.  The GOP knows that and will use successfully the voting records of Democratics in Congress towards any bill dealing with surveillance and try to paint them as soft on terror.  

                        I agree this is an issue that needs to be addressed but this fear doesn't go away quickly.  It's a long drawn out educational process that has to undo all the damage of nearly a decade of neo-con rule and control over the media.  We don't have that kind of time before the next election.  It's not just about electing Obama.  I think he'll win in a landslide.  It's about winning those tight congressional races in moderate states.  They need every advantage they can pull out and if it means alienating the contributors of DK who are actually tuned into the ramifications of a bill like this or the voters in their district so they're still around to fight another day, I'm not sure I can blame them.

                        I think our strategy is one of trust but a firm commitment to keep the pressure on to these leaders to not succumb to compromise once their seats are safe.  It's a slippery slope unless someone constantly monitors their basic ethics.  Maybe lots of letters and emails to them reminding them just how right the Constitution is.

                        "I still say a church steeple with a lightning rod on top shows a lack of confidence" Doug McLeod

                        by artmartin on Thu Jun 26, 2008 at 09:31:41 AM PDT

                        [ Parent ]

                        •  Well it is not showing up in any indicators.... (2+ / 0-)
                          Recommended by:
                          TracieLynn, artmartin

                          such as the front page on the environment in the nation right now...I am sure some few are running around scared shitless...this doesn't mean that Dems should cave on this legislation.

                          If you want to truly understand something, try to change it. - Kurt Lewin

                          by anim8sit on Thu Jun 26, 2008 at 09:34:27 AM PDT

                          [ Parent ]

                        •  I certainly (1+ / 0-)
                          Recommended by:

                          understand this feeling, and it might make sense in years Republicans are strong, but this isn't one of those years.  I know from personal experience that, if given the chance to actually have a conversation with a conservative, more times than not I can get them to concede my point.  The arguments are all on our side, we just need some strong people out there arguing them.

                          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. - 9th Amendment

                          by TracieLynn on Thu Jun 26, 2008 at 10:24:21 AM PDT

                          [ Parent ]

                        •  that there are those people (1+ / 0-)
                          Recommended by:

                          who are so afraid of islamic 'terrorists' but don't blink an eye when the federal reserve is bailing out insolvent investment firms and banks at tax payer expense...demonstrates profound ignorance.

                          Orwell meet George the 43rd

                          by FreeTradeIsYourEpitaph on Thu Jun 26, 2008 at 12:21:23 PM PDT

                          [ Parent ]

      •  What you've missed is... (6+ / 0-)

        that some people around here were waiting for any excuse to attack Obama.  The FISA affair fit the "I told you so" meme so very well.

        •  There may be some who were waiting (4+ / 0-)

          for a reason.  But others--like me, even--genuinely care about the issue.  My view now, as described above, is more nuanced in terms of what he (the campaign) gains from his support of this "compromise" bill.  He simply could not afford to provide a vote that would be used to bludgeon him on the national security question.  He just doesn't have any degrees of freedom on that.

          So I'm cool with it.  It may be a really shrewd political move.  And I do believe that he cares about the Patriot Act and the Fourth Amendment, and we'll see that when he gets elected.

        •  No. Sometimes the issue is very important (1+ / 0-)
          Recommended by:
          buckhorn okie

          That said, if he is indeed joining the filibuster I think I have some crow to eat...

          People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

          by cskendrick on Thu Jun 26, 2008 at 06:08:13 AM PDT

          [ Parent ]

        •  David I think there are those (0+ / 0-)

          but it sounds as if you're painting with the same broad brush as they are.  Obviously there's people that weren't lying in wait for Obama but just assumed, based on his platform that he'd of course come on swinging on this.  I even figured that would happen but when he didn't I figured there was behind the scenes happenings I wasn't aware of.  A lot of people have been burned too many times to put that kind of trust in any politician.  I don't blame them for being wary but I do agree with you that too much over the top protest just becomes a weapon in opponent's hands.

          What we have to call for is balance.  

          "I still say a church steeple with a lightning rod on top shows a lack of confidence" Doug McLeod

          by artmartin on Thu Jun 26, 2008 at 09:48:43 AM PDT

          [ Parent ]

      •  Do you have a link or a direct quote? (0+ / 0-)
    •  Excellent question and comment. (10+ / 0-)

      As to your question, the issue of foreign-trained, foreign-funded, foreign-directed criminals acting in the U.S. does pose a thorny issue.  And in investigating and stopping those criminals, we do have to be careful to protect the "sources and methods" we need to do the job well.

      That phrase "sources and methods" sounds sterile, but in practical terms it's real people, here in the U.S. or especially overseas, who are risking their lives by being informants.  They and their families are at risk.  We can't serve them up like Judas goats, revealing identifying information in a public warrant, and expect them to continue to help us.  They're human beings, after all.  They'd like to live to see the better world they're trying to help make.

      We already have legal procedures for protecting confidential informants (CIs).  I've worked several cases where CIs had provided key information, and while this isn't a legal seminar, the key issue is whether the specific information the defense asks for would compromise the CI's identity, and if so, whether that information is essential to mounting a legal defense.  We have a Sixth Amendment right to confront witnesses against us, however the courts have long recognized that sometimes revealing the witness' identity may put his life in jeopardy.  So it's a balancing act.

      That balancing act is even more complex in a foreign intelligence case, where for example the foreign actor may have leaked a "poisoned pill," some information which they can track the progress of, and thus if it emerges they will know where the leak is (and kill our CI).  Quite simply, this is not a simple issue with simple solutions.

      But one issue is simple:  we simply cannot allow U.S. citizens to be prosecuted for non-foreign-intelligence-related offenses, based on information from non-reviewable FISA warrants.

      Until we find some way to fix that gaping hole in the Fourth and Sixth Amendments, arguing over the rest is dust in the wind.

      And yes, I suspect that pragmatic political calculation is exactly why Barack Obama has spoken and will act as he does.  He knows where the real battle is, and he wants to be positioned to fight and win it.

  •  finally (12+ / 0-)

    where have you been so long? I have said Obama is not stupid. People were to quick to criticize him because nobody understood what you just explained. I must admit you shed a new light to my understanding. I also know from working in a library that the Patriot Act is our worse nightmare. Thanks again for your insight.

  •  It's not just about telecom immunity (11+ / 0-)

    Bush and his buddies violated the law. It's my understanding that this bill makes that all go away. We will never find out what they did. That's part of why I'm so upset about this.

    This congress' lack of strength to go after Bush sets a precedent for future presidents that they can violate the law however they want and congress will just put up with it.

    To me, this is part of the fight of keeping our democracy alive at all. This is another example of Congress not being an independent branch and helping to create an all powerful executive.

    By supporting this bill, Obama proves he's just another politician willing to say what will get him elected.

    •  I'm sorry for you. I have been watching (5+ / 0-)
      Recommended by:
      GN1927, AllanTBG, soms, Leslie in KY, desnyder

      elections since 1960 when JFK introduced me to politics. I was a kid and I was hooked. I have never, ever seen anything like Obama on the national stage. To dismiss him as just another politician "willing to say what will get him elected"  rings false and totally misses the factors that make him unique.

      If he really was the politician that would say anything to get elected, he'd be pandering to us right now. And he's not.

      Always be sincere, even if you don't mean it. - Harry S Truman

      by parker parrot on Thu Jun 26, 2008 at 06:25:40 AM PDT

      [ Parent ]

      •  Since when? (7+ / 0-)

        If he really was the politician that would say anything to get elected, he'd be pandering to us right now. And he's not.

        Since when has conventional political wisdom dictated that someone pander to us?
        The whole argument being made by the appologists is exactly the opposite. The pandering is to the right, because thats what Democrats always do after the primaries. That is absolutely the current conventional wisdom
        Personally I think the value of caving into Bush on this is wildly overstated, and in fact I think the reasons for it have less to do with politics and more to do with the influence of giant corporations in general.
        Either way, it shows pretty standard, run of the mill politics as usual from a man who tries to present himself as from a different mold.
        He is an inspring speaker, and a gifted natural politician, and also our best chance at winning the White House since Clinton, but thats all.

        •  Not has to with Conservative bluedog (3+ / 0-)
          Recommended by:
          AmericanRiverCanyon, mrchumchum, soms

          Dems DEMANDING of Pelosi that she get this done. She faced a revolt of the caucus because they told her they wanted it off the table.

          I truly believe we are witnessing a  kind of underground palace coup against Dem leadership here. Pelosi is fighting to retain the Speaker position, and Hoyer is vying for it.

      •  But this is the danger of what he may become to (2+ / 0-)
        Recommended by:
        buckhorn okie, mrchumchum

        people. First, public funding where he clearly went back on a promise. Then, FISA, where he abandoned his previous position. Then standing against the Supreme Court on child rapists getting the death penalty.

        I'm beginning to wonder about his understanding of the constitution vs. political expediency myself. If he becomes perceived just "another politician" he will lose. You can't recover from that one.

      •  ditto (2+ / 0-)
        Recommended by:
        AmericanRiverCanyon, soms

        Thanks Parker. i was there with you.

      •  I think this (2+ / 0-)

        is why so many feel such a great disappointment with him.  Many of us had started to believe that Obama would be different and, turns out, he isn't.  Of course, he'll be scores better than McCain, but I was hoping for more than that.

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. - 9th Amendment

        by TracieLynn on Thu Jun 26, 2008 at 07:48:51 AM PDT

        [ Parent ]

  •  Wonderful argument (3+ / 0-)
    Recommended by:
    parker parrot, Blicero, soms

    Makes total sense to me.

    Give me liberty, or give me death!

    by salsa0000 on Thu Jun 26, 2008 at 05:59:28 AM PDT

  •  My annoyance (11+ / 0-)

    On the whole FISA battle is simply that it is a cave in that didn't need to happen. I have seen no convincing evidence whatever that being seen as caving into the most despised president in our history is a political winner, and quite frankly I don't believe that was the reason.
    I think much of what the Democrats do is falsley attributed to cowardice and politcal manuvering when it is in fact just plain old corruption.
    This is being rammed through either because the Dem leadership is worried about it's own complicity in the illegal wiretapping or because they don't want to piss off rich contributers, or maybe both, it hardly matters.
    As the newley minted leader of the party, Obama certainly could have made it known that he preferred to let this bill be taken up after the elections. It's hard to imagine Reid and Pelosi going out on a limb to embarrass their nominee when it is clear that a majority of their own party is already against this shitty compromise. Obama is supossedly campaigning on a "new politics", but this is just more of the same old shit.
    I get tired of the Democrats not just distancing themselves from us lefties, but going to great lengths to actively piss on us for no other reason than to appease their paymasters.
    I will still vote for Obama because I will be walking into the polls with a gun named John McCain pointed at my head, but I don't have to pretend to like it.

  •  Thanks for the information (10+ / 0-)

    I haven't expressed outrage or Barack-adoration during this whole debate because I have consistently felt - and still feel - that I don't understand enough yet to have an informed opinion, as opposed to just adopting the one everyone else has. Your diary confirms that I was right - I don't know enough! But it taught me a little more, so thank you for taking the time to write it.

  •  asdf (7+ / 0-)

    for me, it's not about the 4th amendment, it's about retroactive immunity which gives Bush the right to hide/destroy all evidence of what he's been doing.

    Just another instance of them getting away, big time, with big shit.

    Obama's misread the situation.  This one matters and he turned his back on it and on us.

  •  NCrissieB, question for you (7+ / 0-)

    I agree with the general premise of your diary and your expertise has lended itself well to a clear presentation, so thank you for posting.

    I would suggest, however, that telco immunity is not entirely a pointless battle or "diversion", as it were. You mentioned that, in the event that one is charged with a crime as a result of this wiretapping program, neither the accused nor even the trial judge is privvy to the "sources and methods" information. The implication seems to be that some evidence (that which is procedurally intertwined) supporting the charge would also remain classified, which in turn suggests that while defendants and their judges aren't granted access here, the telcos themselves are in the know with very sensitive material.

    So my question is, how is the professed secrecy of the FISA program maintained without oversight of the publicly-traded companies that are collecting the evidence?

    John McCain : The kids aren't alright, my friends.

    by differance on Thu Jun 26, 2008 at 06:05:32 AM PDT

  •  I get so frustrated over this debate. (16+ / 0-)

    Yes, I understand the principles involved. Yes, the FISA bill is bad for our constitution.

    That said, this entire debate seems to be taking place in a world where straight white middle-class men are just suddenly waking up to the fact that the government can trample on your civil and human rights. Newsflash: that's been happening for a lot longer than some folks have been paying attention.

    "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

    by MBNYC on Thu Jun 26, 2008 at 06:07:01 AM PDT

    •  Last I looked (4+ / 0-)

      Legitimate enforcement of good laws benefits minorities far more than majorities.

      If the breakdown is affecting the aforementioned privileged segment of society, it is affecting the interests of all others far, far more.

      But it's always fun to chortle about chickens coming home to roost, I suppose.

      People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

      by cskendrick on Thu Jun 26, 2008 at 06:11:17 AM PDT

      [ Parent ]

      •  What's rather remarkable to me is that: (7+ / 0-)
        Recommended by:
        bawbie, mikolo, blueoasis, MBNYC, joy sinha, Niwind, soms
        1.  There has been so much attention paid to the telecom companies instead of the actual guts of the FISA bill; and
        1.  So little effort put into educating people outside of the liberal blogosphere as to why this bill is so dastardly.  The liberal blogosphere went into "enforcer" mode before they went into "inform the public" mode.  By itself, the liberal blogosphere just doesn't have the juice to stop this kind of thing on the national level.  

        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

        by Geekesque on Thu Jun 26, 2008 at 06:22:16 AM PDT

        [ Parent ]

        •  No (5+ / 0-)

          But we do have the power to make primaries very uncomfortable events for congresscritters.

          People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

          by cskendrick on Thu Jun 26, 2008 at 06:23:32 AM PDT

          [ Parent ]

          •  Only if their constituents are already (3+ / 0-)
            Recommended by:
            cskendrick, MBNYC, soms

            dissatisfied.  If the constituents are satisfied with the job they're doing, not much we can actually do.  

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Thu Jun 26, 2008 at 06:30:56 AM PDT

            [ Parent ]

            •  We can still make it expensive (3+ / 0-)
              Recommended by:
              TracieLynn, buckhorn okie, blueoasis

              more for them than for us. Blogosphere leverage is rather cost-effective.

              And it's an education opportunity, and information is our stock-in-trade.

              People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

              by cskendrick on Thu Jun 26, 2008 at 06:32:10 AM PDT

              [ Parent ]

              •  And we need to do a better job of spreading (2+ / 0-)
                Recommended by:
                GN1927, soms

                information to those constituents.  Why pester individuals when we can create more permanent change in the foundation of the political system?

                "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                by Geekesque on Thu Jun 26, 2008 at 06:33:22 AM PDT

                [ Parent ]

                •  I can tell you where this is headed (5+ / 0-)

                  A new Constitution. Neither blue nor red camp as presently managed likes the current one sufficiently to enforce it in letter or in spirit.

                  We are far from being at the breaking point. When we get there it will look a lot like this...

                  The home situation for the United States is as dark as anyone here has dared imagine. Paramilitary security are everywhere. Wide powers of search, surveillance, seizure, interrogation, detention and summary judgment are asserted first by factions with at least nominal institutional legitimacy, then usurped outright in the open by any entity with the money and will to have a squad of hired guns represent its interests.

                  Rule of law becomes a travesty in situations where defamatory comments on a blog are considered grounds for justifiable homicide, and city councils and school boards are intimidated by the appearance in session of concerned citizens and their openly-brandished firearms. It only takes one or two incidents where shots are fired to make the point.

                  This behavior is noted at higher levels of government. The response -- fund, arm and empower more security contractors at the expense of the discredited professional military which is officially blamed by civilian chickenhawks for failing and 'losing' not just two wars but pretty much the entirely of American superpower status.

                  The military resents this bitterly. Many quit.

                  They join security contractor outfits and go back to work for the same jerks.

                  Others have other plans but keep their counsel for the time being.

                  These veterans are watched very closely. Some are preemptively assassinated, fearing they might lead a revolutionary movement.

                  The political parties are fragmented. Officially there are still only two majors. In practice, there is only one ruling bipartisan coalition -- those with ties to media and munitions. That is the partnership of power -- forcing one's message through, whether listeners like it or not. Most people tune it out; the news is that depressing, and doing so -- embracing more of the apathy that lets such corruption flourish -- only feeds the cycle all the more.

                  The sense is that the old world is utterly falling apart.

                  For want of a lack of heart, of vision, of compassion, of flexibility, of imagination and courage, the world falls to shreds and what started as a very optimistic adventure in Iraq leads inevitably to Baghdad-like conditions in many cities in America, as well.

                  People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

                  by cskendrick on Thu Jun 26, 2008 at 06:37:22 AM PDT

                  [ Parent ]

        •  Exactly. (4+ / 0-)
          Recommended by:
          bawbie, GN1927, Geekesque, soms

          The liberal blogosphere went into "enforcer" mode before they went into "inform the public" mode.

          That's our problem right there. Outside of our community, nobody seems to be even talking about this, and we fly from one tizzy into the next and wonder why everyone else isn't similarly outraged.

          "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

          by MBNYC on Thu Jun 26, 2008 at 06:29:29 AM PDT

          [ Parent ]

      •  Try again. (5+ / 0-)
        Recommended by:
        bawbie, buckhorn okie, NC Dem, OWCH, soms

        I'm privileged. I'm white, male, have an advanced degree, a career, and last night, for example, I went to a high-dollar event at a building on Central Park West. It was a penthouse triplex, one of three in the building; the other two belong respectively to John McEnroe and Anna Wintour. That's privilege.

        But if something happens to my partner, which is eminently possible for guys his age, I'm going to either lose my apartment or see it double in price, have his relatives loot said apartment, and so on and so forth. I thought of joining the military like my dad and his dad and his dad's dad - no, sorry, we don't want your kind. I wake up every day as a second-class citizen - and I'm lucky. Head on over to the African-American or immigrant parts of this town to see what your government can do if it feels thusly inclined.

        So it's not really about chickens coming home to roost and chortling over that in any meaningful way. It's something else, and I'm not sure I have a name for it.

        "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

        by MBNYC on Thu Jun 26, 2008 at 06:26:20 AM PDT

        [ Parent ]

        •  What you are or are not (1+ / 0-)
          Recommended by:

          Has...what to do with my response?

          Ah, the bit about chickens coming home to roost.

          Isn't that the essence of your comment?

          I must have misread it. My bad.

          People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

          by cskendrick on Thu Jun 26, 2008 at 06:30:12 AM PDT

          [ Parent ]

          •  It has (1+ / 0-)
            Recommended by:

            everything to do with your response. I'd surmise that you just don't want to hear what I'm saying, but that might be my own misapprehension.

            "How eager you are to be slaves." - Emperor Tiberius to the Senate of Rome, in response to their offer to pass any legislation he wished.

            by MBNYC on Thu Jun 26, 2008 at 06:40:23 AM PDT

            [ Parent ]

            •  Okay... (3+ / 0-)
              Recommended by:
              TracieLynn, buckhorn okie, lightfoot

              ...this entire debate seems to be taking place in a world where straight white middle-class men are just suddenly waking up to the fact that the government can trample on your civil and human rights. Newsflash: that's been happening for a lot longer than some folks have been paying attention.

              1. "...this entire debate..." is about principles of liberty, justice, due process, law and civility that benefit you personally -- doubly for being both of privilege and of a discriminated class of perso.
              1. "...seems to be taking place..." in a world that, without them, would be especially dangerous for you, as you would become a target of persecution and reprisal from both directions.
              1. " a world where straight white middle-class men are just suddenly waking up to the fact that the government can trample on your civil and human rights." I think this group first noticed the 1770s.
              1. "Newsflash: that's been happening for a lot longer than some folks have been paying attention." Stipulated.

              People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

              by cskendrick on Thu Jun 26, 2008 at 07:06:27 AM PDT

              [ Parent ]

  •  the reason I do not agree (7+ / 0-)

    that this FISA bill is the lightening rod issue is IMO unless we get a president who recognizes how close we are to losing our individual freedoms and begins a pathway to dialogue about how we protect these freedoms in this digital age all is lost.  I don't think FISA matters that much to the big picture.

    We have lawmakers who don't even get the big picture. We have Americans who don't get the big picture.  Real debate needs to be had.  It needs to be spelled out to them and the American people and this country needs a president who SELLS the American people on the fact that if we lose these freedoms the terrorists have won.

    If that sale doesn't happen; if our lawmakers don't educate and debate then not only do the laws not get changed but the next time we have a terrorist attack (and there will be a next time) the folks who fought for the freedom will be demonized by the Cheneys of the world who will take over.  This is a war far bigger; this is an ideology far bigger than passing FISA and to my thinking Barack Obama is the only chance we have of any of this happening.  Another 4 or 8 years of Republican rule and all is lost.  We had better get behind this man and elect him.  

    I see him as about the last guy with a lifeboat.  He may not be perfect but I will jump in his boat any day over McCain & Co.

  •  Screwy logic (15+ / 0-)

    But the kind I hear from a lot of people - especially when they're playing apologist.

    If this is a small, petty fight - and we should focus on the "real" fight, fine.

    1. I'm looking, but I dont see that happening.
    1. It's a lot less likely to happen the more we pile on even "petty" bullshit that takes us further from a just system - if even a little bit.
    1. Frankly, if Obama - and other Dem enablers - can't find it in them to take on an issue you pass off as petty, how on Earth can they be expected to take on the real fight you describe.

    In fact, if it is as you say, all the more reason to take it on. Political victories build on political victories. If this is a petty little thing, well great! Let's do it and get some momentum for the real fight, because taking it on without a record of victory and the associated public mandate will be far more difficult.

    Get over to the Green Mountain Daily! What are you still reading this sig for?

    by odum on Thu Jun 26, 2008 at 06:10:40 AM PDT

    •  Exactly...I don't hear any opposition to the (6+ / 0-)

      wall of separation from anyone in congress. At least not enough to matter. This is a ridiculous argument on his part.

      Let's ignore the further erosion of rights and fight the big battle which virtually NOONE is prepared to fight.

    •  Perhaps the better "pragmatic" argument... (1+ / 0-)
      Recommended by:

      to make is that Obama knows he'll need the entirety of the Democratic party behind him as he begins extricating forces from Iraq.  This reversal of his position on FISA may suggest to conservative Dems that he's willing to take a hit with his base now for their sake, which will help in convincing them to go along with him through the rough waters of next year.

      As one of the camp who is disappointed in Obama's flip on this issue, looking it as a political quid pro quo of this sort makes it a bit more palatable.

      y el canto de todos que es mi propio canto

      by gatorbot on Thu Jun 26, 2008 at 07:16:16 AM PDT

      [ Parent ]

  •  Retroactive immunity is a bill of attainder (18+ / 0-)

    And the language as written hands future governments the power to write exemptions from law, post facto, whenever they please.

    That is a bit more serious than a Fourth Amendment violation.

    It's far more serious than USA PATRIOT.

    It's why this deal is exceptionally bad.

    People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

    by cskendrick on Thu Jun 26, 2008 at 06:13:21 AM PDT

    •  I was trying to think of that word but couldn't (6+ / 0-)

      Thanks, great point.

      "If they can get you asking the wrong questions, they don't have to worry about the answers." - Thomas Pynchon

      by Windowdog on Thu Jun 26, 2008 at 06:27:16 AM PDT

      [ Parent ]

    •  It is not. (3+ / 0-)
      Recommended by:
      wmtriallawyer, soms, NCrissieB

      A bill of attainder is when Congress passes a law declaring someone guilty and punishes them without a trial.  

      •  it's granting a special status under law (4+ / 0-)

        and granting the power to extend same by decree to the executive.

        It's a salutary bill of attainder...and perhaps I am reaching because it's an innovative form of surrendering power to Caesar..

        People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

        by cskendrick on Thu Jun 26, 2008 at 06:40:50 AM PDT

        [ Parent ]

        •  No (8+ / 0-)

          It is neither a bill of attainder nor an ex post facto law as prohibited by the Constitution.  First of all, my understanding is that it grants civil immunity, not criminal, and the Constitution's bar against bills of attainder and ex post facto laws apply only to criminal legislation.  Second, you seem to be mixing up the executive grants in this bill with the telco immunity provisions.  The bill does not grant any power to the executive to immunize anyone.  It--through the legislature--grants that special status directly.  So Bush cannot now or in the future declare anyone immune from anything.  Nor can any other future president.  

          One can disagree with whether the telcos should be immunized by Congress, and one can criticize the bill's grant of expanded wiretapping powers to the president.  But Congress is well within its constitutional powers here.    

          I respect people's opinions on the dangers of expanded executive power.  But I--also a lawyer, like the diarist, familiar with these issues--tend to agree that this is a closer call than many in the Netroots think, and that it is a hill that is not worth defending at all costs and one that can be retaken later.  

          •  I should add (3+ / 0-)
            Recommended by:
            mikolo, Dragon5616, NCrissieB

            that I don't understand this bill to even declare anyone "immune" from liability.  Unless I'm mistaken (and I'm open to correction here from anyone who's scrutinized the text) doesn't it just create an affirmative defense for the telcos?  If so, that's just a burden-shifting device.  It may indeed be outcome-determinative, but it's not like Congress just declaring the telcos to be "immune."

            •  No, it compels the courts to grant that immunity (6+ / 0-)

              if the executive affirms that it argued to the telcos (or other private contractor, say, perhaps in the defense industry) that its actions were taken in the name of national security.

              I cannot see how anyone but a lawyer in defense of a client's interests could see merit in advocating this bill.

              People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

              by cskendrick on Thu Jun 26, 2008 at 07:09:29 AM PDT

              [ Parent ]

              •  Fair enough (2+ / 0-)
                Recommended by:
                Dragon5616, NCrissieB

                Kindof a cheap shot at the end, but it's an emotional debate.  For what it's worth, I don't represent the frigging telcos.  Nor am I advocating the bill.  I'm just agreeing with the diarist that Obama is doing the right thing politically by not choosing to fight this particular battle, because the bill isn't exactly a death blow to the Constitution.  

                •  I was speaking to the general practice (2+ / 0-)

                  A nod to the professional oath not meant to be a shot.

                  I think there are ways to "not fight for this petty knoll" that would make Obama look much better than he has in this.

                  I submit his handling of the politics of this matter are not exemplary.

                  As for the death-dealing? No. But helping Reid and Pelosi and Hoyer and Rockefeller reach for the life support plug is not acceptable.

                  People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

                  by cskendrick on Thu Jun 26, 2008 at 07:42:02 AM PDT

                  [ Parent ]

                •  sorry if that offended... (0+ / 0-)

                  we can trade lawyer jokes if that makes you feel better. :)

                  People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

                  by cskendrick on Thu Jun 26, 2008 at 07:43:15 AM PDT

                  [ Parent ]

          •  I, for one, am grateful for some reasoned (2+ / 0-)
            Recommended by:
            TracieLynn, buckhorn okie

            legal explanations of this.

            I understand that it may not be quite as bad as I/we have been making it out to be, but my concern is the idea that it "can be retaken later." My worry is that once done, retaking it would be a lot harder. I guess in my mind it makes more sense to push now for the hill because of that.

            Guil: So there you are. Ros: Stark raving sane. - T. Stoppard, Rosencrantz & Guildenstern are Dead

            by eco d on Thu Jun 26, 2008 at 07:03:21 AM PDT

            [ Parent ]

          •  If this right is being granted (3+ / 0-)

            to the most lame of all possible lame-duck presidents, it will not be removed from any executive with more years of tenure remaining or an nth more political credibility.

            People with no code got nothing. My code begins with the words We The People, and lots of peeps got MY back.

            by cskendrick on Thu Jun 26, 2008 at 07:07:57 AM PDT

            [ Parent ]

  •  Well done, and thank you. (n/t) (3+ / 0-)
    Recommended by:
    bustacap, artmartin, soms

    "We can't solve problems by using the same kind of thinking we used when we created them." - A. Einstein

    by FWIW on Thu Jun 26, 2008 at 06:15:43 AM PDT

  •  Thank you, for your..... (2+ / 0-)
    Recommended by:
    Sassy725, soms

    clear and cogent explanation of the situation.  Highly recommended and saved to my hotlist!

    Be kinder than necessary, for everyone you meet is fighting some kind of battle.

    by Cronesense on Thu Jun 26, 2008 at 06:17:54 AM PDT

  •  Any info other than terror related is excluded (4+ / 0-)

    I could live with all this wiretapping and invasion IF any and all information they get that is not directly terror related (does not include weed --- my guy is a teacher in CA, not using the profit for terror!) then it is by law EXCLUDED from use by any law enforcement agency.

    What is so hard about that?

  •  I still don't get the hyperbole over (12+ / 0-)

    telecom amnesty.  It seems very clear to me that the problem here was not the telecoms, but rather the DOJ that was trampling over the law.  Realistically, it's awful hard to find private individuals or entities liable for cooperating with the government--it would essentially involve one arm of the government--the judicial--punishing someone for cooperating with another arm of the goverment--the executive.

    If you want to protect the constitution and privacy rights, keep people like George W. Bush and John Sidney McCan't out of the White House.  And build up the FISA firewalls--prevent the evidence from being used for drug offenses, for example.

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Thu Jun 26, 2008 at 06:19:24 AM PDT

    •  Right now, it's the only "handle" available (2+ / 0-)
      Recommended by:
      migo, Geekesque

      If the telecoms broke the law, they should have to face some consequences.  However, all they have to do to cover their asses is to show that the Bush Admin coerced them to commit these illegal acts.  Immunizing them in this case serves only one real purpose-- to keep them from showing what really went down.

      It's possible that under an Obama administration, with a suitable Democratic majority in congress, that there may be other ways of uncovering the wrong-doings of the Bush administration.  But, until that time, and unless the Obama admin shows an amazing amount of fortitude (and is willing to deal with the possible political consequences), holding the telcom's feet to the fire is the only real handle we have.

    •  Yours is the "Post of the Day" (1+ / 0-)
      Recommended by:

      I agree totally. It is Bush and the DOJ who should be on the hotseat. I have said before (to deaf ears) that the telecoms had a gun held to their heads on this issue. Or they were offered some sort of regulatory perk in exchange for their cooperation.

      Thank you.

      and best regards,


    •  Qwest didn't comply...they have lawyers and (2+ / 0-)
      Recommended by:
      FreeTradeIsYourEpitaph, Calfacon

      knew that it would leave them liable. They chose to provide info on us to the gov't. But not all of them did so. It wasn't that hard to figure out.

  •  FISA also immunizes Bush (8+ / 0-)

    It gives him a get out-of-jail card, because all the records of his government's unlawful dealings with the telcos will be forever sealed or destroyed.

    Way to go, you suicidal chickenshit Dems.

    •  Please explain. (0+ / 0-)

      How does granting the telecoms immunity from civil liability enable the destruction of governmental records?

      "Whatever America hopes to bring to pass in the world must first come to pass in the heart of America." --Dwight Eisenhower

      by Dragon5616 on Thu Jun 26, 2008 at 02:56:48 PM PDT

      [ Parent ]

  •  Great diary, but I disagree in part. (6+ / 0-)

    Say in some fantasy realm the coming blue dog majority approves a rewrite of USAPA that allows court review of the FISA warrant in criminal cases. That would still leave this huge hole in our protections against government surveillance.

    The current dragnet approach of running every damn email they can through data aggregation software looking for what might be a shiny penny is what is the most galling to me.

    Yes USAPA needs a rewrite, but that doesn't make this a better law.

    Plus giving defense teams the "go to congress and get your crime absolved after the fact" option will make prosecuting large offenders all the more difficult.

    Great diary, and great analysis, but I'm still not convinced.

    "If they can get you asking the wrong questions, they don't have to worry about the answers." - Thomas Pynchon

    by Windowdog on Thu Jun 26, 2008 at 06:25:23 AM PDT

  •  This is not "pragmatic" at all... (9+ / 0-)

    what evidence do you have that Obama or anyone, let alone 60 Senators, and a majority of House Reps are EVEN CONSIDERING putting the "wall of separation" back up?

    Your one example of weed at a BBQ...has this ever happened to your knowledge. It is hypothetical is it not?

    Finally, if we can't even beat back immunity for telcoms or tightening up FISA, how the hell do you propose we rescind the Patriot Act?

    No, this is the stand to take. And battles are won, one "hill" at a time. You haven't answered the basic question, why should we expand FISA if you are so against it?

    •  Poor strategy. (8+ / 0-)

      You don't fight every battle you can find.  You fight battles that will matter, and only if you can win them.

      This one won't, and we couldn't win it regardless.  Not in this Congress, not with this President.  I'm sorry, but past elections matter too, and we're still saddled with a bare "majority" in the Senate - no majority at all considering how Liebermann is acting - so we just don't have the political clout to force a victory right now.

      And is a stalemate - the best we can hope for right now - worth jeopardizing the White House and a real majority in the Senate, come November?

      It might be to you.  It's not to me.

      •  If we couldn't win this fight... (4+ / 0-)

        it because our own troops did not fight...Feingold said it best, it was capitulation...and if republicans are saying that this bill gave them everything they wanted...where exactly was ANY fight...when Democrats join republicans on a hideous piece of legislation... that is not about not being able to win the fight...that is about surrendering before the fight.  That really inspires confidence and wins elections.  Finally, there was always the option of DOING NOTHING, instead of handing a hobbled president and McCain a victory they can crow about.  

        If you want to truly understand something, try to change it. - Kurt Lewin

        by anim8sit on Thu Jun 26, 2008 at 06:57:15 AM PDT

        [ Parent ]

    •  They wont touch USAPA (6+ / 0-)

      I've seen ZERO indication that addressing the Patriot Act is on anyone's agenda after the election.

      But what better way to FORCE them to address it than to reject telecom immunity, let the civil suits proceed, and show the country specifically what USAPA is allowing the government and their corporate stooges to do?

      "Don't Piss Down My Back And Tell Me It's Raining"

      by Helzapoppin on Thu Jun 26, 2008 at 06:47:52 AM PDT

      [ Parent ]

  •  I'm uninformed (1+ / 0-)
    Recommended by:

    What changes does the current FISA bill make (besides telecom amnesty)?

    •  It says no wiretapping without FISA warrant. (3+ / 0-)
      Recommended by:
      Celtic Merlin, soms, drache

      But it does not restore or even address the "wall of separation" between intelligence-gathering and criminal prosecution.

      •  So (1+ / 0-)
        Recommended by:

        I understand that this bill does nothing to rectify the damage of the Patriot Act, which is being able to use evidence obtained from a FISA warrant in a criminal court. But is there anything else objectionable besides telecom amnesty? How does it "weaken" the already deathbed-weak FISA process?

        ps. Is it pronounced fee-sah, or f-eye-sah?

      •  that's not true. See feingold's objections and (3+ / 0-)
        Recommended by:
        migo, nicteis, two roads

        stop passing bad information.

      •  Warrants in name only (6+ / 0-)

        The fourth amendment requires warrants specifying the person and place to be searched. The "basket warrants" in this bill require a single warrant each year, authorizing the method the Feds will use to eavesdrop on unlimited numbers of persons and places.

        For example, if the method submitted to FISC is "vacuum up every single communication into or out of the US, and all emails whatsoever" - the court is permitted (and very nearly required) to authorize it. They can examine the proposed method only for whether it deliberately "targets" persons known at the time of the basket warrant to be US persons.
        (They can also object on the grounds that the proposed method violates the fourth amendment; but since, as our diarist has pointed out, the very existence of the FISA court with no firewall between itself and criminal prosecution already violates the fourth amendment and they haven't seen fit to object, it is unlikely they will avail themselves of that clause.)

  •  I disagree (2+ / 0-)
    Recommended by:
    blueoasis, soms

    I think it's much simpler than that.  I think that Obama recognizes that this bill expands executive powers.  He's going to be the executive.  He wants expanded powers.

    Long ago I realized that the battle in November is not to see if we have a President Obama or a President McCain, but if we wanted to have unitary executive Obama or unitary executive McCain (or Clinton, at the time).  Looking at the 3, Obama is most likely to be benign, and most likely to (ab)use his unitary executive powers to get things done that I support.  

    Maybe I'm going to far... but I support Obama in part because I really admire him, but in part because the thought of John McCain sitting in the white house with all the powers that congress and the courts have ceded to the executive just effing scares me.


    Democrats *do* have a plan for Social Security - it's called Social Security. -- Ed Schultz

    by FredFred on Thu Jun 26, 2008 at 06:26:40 AM PDT

  •  Under "color of law". (6+ / 0-)

    In your diary you say the immunization is granted under color of law.  Help me with this, as I don't think that appropirately describes the nature of the immunity granted.

    Under color of law (or under color of authority)generally applies to acts perpetrated by officials, employees or agents of government:  police, FBI, prosecutors, etc.

    The immunity granted in the amended FISA protects corporations acting under court order or government directive.  That is, I believe, NOT the same thing as under color of law.

    The reason I make this distinction is that the criminal sanctions in FISA, i.e., Section 1809, have always applied ONLY to those acting under color of law, e.g., government officials or employees who cause the warrantless wiretap to be placed. The telecoms did not therefor have criminal exposure for their compliance with the Bush Administration in the placing of unlawful warrantless wiretaps, only those acting dirctly on behalf of the government (e.g., Bush, Ashcroft/Gonzales, etc).

    If the immunity granted to telecoms were under color of law, then would they not consequently be liable for criminal prosecution?? If so, I don't think that was the intent of the framers of this legislation.

    "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

    by bobdevo on Thu Jun 26, 2008 at 06:26:44 AM PDT

    •  In this context.... (4+ / 0-)
      Recommended by:
      wmtriallawyer, bobdevo, mikolo, soms

      What it means is simply that the telecom must prove that it was acting in good faith under what it reasonably believed was a legal government request.

      •  "We were just following orders" -nt- (8+ / 0-)
        •  We may not like it (2+ / 0-)
          Recommended by:
          askew, discocarp

          But I'm picking up from a lot of the lawyers commenting on here that, even if they didn't have immunity, there is a 90% probability that they wouldn't be held to account in any civil court. They have a case, and any discovery would be minimal at best. Criminal prosecution is our best bet to learn anything, and this bill does not exclude that possibility.

          In the unlikely story that is America, there has never been anything false about hope.

          by alkalinesky on Thu Jun 26, 2008 at 07:20:42 AM PDT

          [ Parent ]

          •  Ya (2+ / 0-)
            Recommended by:
            migo, alkalinesky

            You should hold your breath. I'm sure the criminal prosecution is right around the corner.

            •  No, it isn't. (2+ / 0-)
              Recommended by:
              discocarp, soms

              And that probably wouldn't have gone anywhere, anyway. I have no faith in the court system on the whole. It's terribly cynical, but I have given up on accountability. I might be pleasantly surprised. But no, I'm not holding my breath. What I am doing is letting this fight go, and working for the larger picture.

              In the unlikely story that is America, there has never been anything false about hope.

              by alkalinesky on Thu Jun 26, 2008 at 07:27:15 AM PDT

              [ Parent ]

            •  It would be a slam dunk. (0+ / 0-)

              Bush has already publicly admitted having ordered warrantless wiretaps, based on his theory that as the unitary executive, the law does not apply to him.

              It is crystal clear, however, that the law DOES apply to all officials, employees and agents of the government.

              And because the criminal sanctions under Section 1809 apply only to those under color of law, there is no mens rea requirement.  The elements of the crime are simple:  if you wiretap without a warrant (i.e., statutory authority), you're guilty.  Period

              "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

              by bobdevo on Thu Jun 26, 2008 at 12:15:40 PM PDT

              [ Parent ]

      •  That's the original FISA, not this one (1+ / 0-)
        Recommended by:

        The federal judge has already ruled that if the telecoms behaved as alleged, they could not possibly have believed in good faith that the government request was legal.

        I expect you know your USA PA, but have you read the actual language of HR 6304? All it requires is that the Attorney General hand the civil judge documentation that any of a number of officials - including, for example, the President or  White House Council (Gonzales at the time) told the telecoms in writing that the order was legal.

        Since FISA itself requires that the certification of legality come from the AG, and the telecoms clearly knew this, and we know from Comey's testimony that for some weeks they did not have such a certification, the proposed version of FISA in no way requires that the telecoms have acted in "good faith". It only requires that Gonzales have handed them a paper containing what both he and they knew to be a lie about the wiretapping's legality.

        The original FISA already had language indemnifying them for good faith actions.

    •  You are absolutely correct, sir. (2+ / 0-)
      Recommended by:
      bobdevo, nicteis

      Good catch, and spot on, any protestations of 'context' notwithstanding.

      The fact is that the average man's love of liberty is nine-tenths imaginary, exactly like his love of sense, justice and truth. - H.L. Mencken

      by two roads on Thu Jun 26, 2008 at 10:15:03 AM PDT

      [ Parent ]

      •  Thanks, I appreciate it. (1+ / 0-)
        Recommended by:
        two roads

        And I'm with you that what is being immunized is behavior conditional upon court order or governmental directive (like a cop directing traffic) rather than being conditioned upon acting under color of law.

        "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

        by bobdevo on Thu Jun 26, 2008 at 12:11:42 PM PDT

        [ Parent ]

  •  And if they don't have the stones (10+ / 0-)

    to challenge telecom immunity, what makes anyone think, even with an overwhelming majority in congress and a Dem president, that they will do squat about the "unPatriotic Act"?

    Obama is not a boat-rocker. He isnt going to touch it. And neither will a jellyfish Dem congress.

    "Don't Piss Down My Back And Tell Me It's Raining"

    by Helzapoppin on Thu Jun 26, 2008 at 06:27:30 AM PDT

  •  The more we learn (5+ / 0-)

    the worse we find things.
    Welcome to the Brave New World.

  •  you are missing the point (9+ / 0-)

    the point is that once you start chipping away at the foundation the building will fall. this is many, many chips of that foundation. when does it stop. it never does. so why add the tools to tear down that building.fisa is wrong, the politicans are wrong, you are wrong. save the constitution and the 4th amendment and vote against this bad fisa bill.

  •  some ppl (1+ / 0-)
    Recommended by:

    just need something to bitch about. There are so many other things to bitch about and they pick this. To me genocide and children going hungry as well as innocent ppl getting killed and misplaced in a useless war for Oil are some things that i think are not only worth bitching about but worth fighting for. Big brother has been watching us for a very very long time. Where are you priorities ppl? Even with facts ppl still continue to bitch.

    •  It removes accountability. There is no democracy (3+ / 0-)

      without accountability. Without accountability the government has no reason to fear the people. If someone gets suspicious they make up an excuse, route it through a secret court, and remove the irritant. Your vote means less and less.

      Name me any non-democratic government that has full accountability. Name me the non-democratic which allows petitioning that government for redress against injustice without it being a kangaroo court.

      Also, name me any non-democratic government that is fighting against genocide and world wide hunger. That allows for at least the possible ending of a war by the will of the people. Name me those countries whose leaders have no accountability to its citizens that advance causes of justice and fairness more than countries that do have that accountability. If at all.

      Big brother has been lulling people into a false sense of security for a long time. You likely won't see the tipping point until it's too late.

      You've got to be cou-ra-geous, to play the odds that love will win. Whatever city you're in. Was / Not Was

      by Noodles on Thu Jun 26, 2008 at 11:16:03 AM PDT

      [ Parent ]

      •  to late for what? (0+ / 0-)

        bushit was not and is not being held accountable for all the atrocious acts he has committed. Where were all the voices then and where are they now. You are right about one thing NO government even democratic has full accountability not even ours.When you can't hold our own president and vice president accountable for crimes against humanity and impeach what is your point?

        •  Democracy is not a given. It's a struggle. (0+ / 0-)

          I don't disagree with you that we are far from being in control of our government. But don't neglect that I'm also right in my other examples which state, that without functioning democracies, all the other things that you find important are moot. The other good works you want to see done, in time, will not be done. Not without first securing continued democracy.

          Without those freedoms it brings, you will not accomplish the other things over time.

          It's not too late so far as you are not being stopped from trying to do them. But change in Washington and our country will not happen without first putting into place real transparency in our government and in the market place.

          We'll lose all eventually if your apathy prevails. Match, game, set.

          You've got to be cou-ra-geous, to play the odds that love will win. Whatever city you're in. Was / Not Was

          by Noodles on Thu Jun 26, 2008 at 11:48:21 PM PDT

          [ Parent ]

    •  I'm Really Sorry to Disturb Your Dinner (1+ / 0-)
      Recommended by:

      I'm sure the large hole in the hull with all the seawater pouring through is not worth worrying about, and the captain will have us back on course before long.

  •  Nicely constructed argument ... (6+ / 0-)

    ... but I still believe this bill is flawed and should not become law. I agree that this legislation's relationship to the 4th Amendment is tenuous. But that said, it's simply not good legislation nor does it enhance our security. The only factor pertinent to me is the constitutional responsibility of the Congress.

    •  I think the bill sucks too. (5+ / 0-)

      I just don't think it's worth wasting political capital on, one way or another.  It misses the far more important issues.

      I'd rather the bill died in the Senate.  It probably won't, for political reasons having to do with this being an election year.  But I hope we'll all push President Obama and a Democratic Congress to fix our Constitution.

      And to do that, we need to have President Obama and a Democratic Congress.

  •  Eeek. nt (1+ / 0-)
    Recommended by:

    There's no reason to become alarmed, and we hope you'll enjoy the rest of your week. By the way, is there anyone here who knows how to run a government?

    by iconoclastic cat on Thu Jun 26, 2008 at 06:40:34 AM PDT

  •  2nd ammendment (1+ / 0-)
    Recommended by:

    The supreme court considering to overturn the 2nd amendment is a bigger concern to me. Republicans redefining all amendments is also a big concern to me. Why are ppl stuck on the 4th amendment especially when it has been explained in detail that they have already accomplished destroying it.

    •  I will agree with this. (1+ / 0-)
      Recommended by:

      I used to be all about gun control, good Democrat that I am. But, I'll tell you what, the last 8 years have flipped my position on this 180. I am a gun owner, and will remain so.

      In the unlikely story that is America, there has never been anything false about hope.

      by alkalinesky on Thu Jun 26, 2008 at 07:17:59 AM PDT

      [ Parent ]

  •  There is also the problem of immunity precedent (6+ / 0-)

    And this is also a big problem. Sure, we may have already lost the right to be protected from unreasonable search and seizure. But now we are also setting precedent that it is OK to break the law as long as the government tells you it is OK.

    NOT GOOD. This slope is just as slippery as the one we now find ouselves at the bottom of. It's a good way to lose ALL of our civil rights.

    •  Already set (2+ / 0-)
      Recommended by:
      mikolo, NCrissieB

      There is already plenty of precedent for immunity where you are ordered by a law enforcement officer to do something.  

      But now that I've had a chance to look at the provisions in this bill, I am even less worried about this.  The telcos are immunized in the future if the AG provides a certification that they were ordered to do so, if there is a court order, or if they are directed to do so by the AG and DNI.  They are immunized for the past activity if they did so in connection with the specific activity authorized by the president and have a written directive telling them is was both authorized by the president and determined to be lawful.

      Now, I know what the response is to this: what's to prevent the AG/DNI from ordering whatever illegal spying they want, certifying it as lawful and making the telcos do it?  Well, nothing.  But that's the point here.  The assumption has to be that the president, AG, and everyone else will actually follow the fracking law.  And I am confident that under either Obama or McCain, that will be the case.

      Now, nothing--nothing--in this bill prevents a President Obama from declassifying all kinds of stuff about the Bush Administration's crimes.  And nothing prevents prosecution of administration officials for such crimes.  It seems to block large-scale civil litigation, and the discovery many expected would be the means to acquire evidence about administration crimes.  But there are other avenues to get that evidence, including Congress's subpoena powers.  And I question the sanity of anyone who thinks that even if there was a series of huge civil lawsuits, any classified documents would ever see the light of day through ordinary discovery procedures.  No way was this stuff coming out through the telcos.  

      There can be, will be, and only ever was one way to get at Bush Administration criminal conduct: through criminal prosecution by the government itself.  And there can be, will be, and only ever was one way to make sure the government stays within constitutional bounds when conducting surveillance:  for the administration to follow the law.  This FISA bill affects neither of these conclusions.  

  •  Excellent analysis. (3+ / 0-)
    Recommended by:
    GN1927, alkalinesky, daddy4mak

    Something laypeople can understand.  Thanks so much!

  •  WATCH THIS !! (4+ / 0-)
    Recommended by:
    migo, blueoasis, discocarp, Calfacon

    Here's Dodd's knock-your-ass-off-the-couch speech on FISA, torture, and the balance between freedoms and war, from two days ago in the Senate. It's a long speech, but you won't be disappointed:


    (BTW, in case you didn't know, you can double click the video once it starts to get full screen)

    Who Would Jesus Torture?

    by JJC on Thu Jun 26, 2008 at 06:48:37 AM PDT

  •  Logic? Perspective? Knowledge? Explanation? (11+ / 0-)

    How did this diary end up on Kos??  Thanks for giving me back some hope for this site.  Let's hope the front pagers take the time to read and understand this important diary.

  •  THANK YOU. (5+ / 0-)

    It would be great to have a lawyer diary series or something here that broke these issues down for us without any spin. I was asking Kossack Turtle Bay last night for this very kind of breakdown. Thanks, again.

    In the unlikely story that is America, there has never been anything false about hope.

    by alkalinesky on Thu Jun 26, 2008 at 06:55:26 AM PDT

  •  a view from inside the sausage factory (4+ / 0-)

    as an attorney "inside the sausage factory," i highly recommend this diary.  succint and accurate.

  •  So let's just sweep the whole mess under the rug! (4+ / 0-)
    Recommended by:
    migo, lightfoot, CanyonWren, anim8sit

    That's it!

    Yeah.  We're fucked no matter what happens with this rotting piece of excremental legislation.  

    Let's cave to the most corrupt political party in history.  Let's immunize MORE lawbreaking--that will prevent further infractions in the future, right?

    "Sir, we're going to withhold your chemotherapy because you already have cancer and are going to die anyways."

    Geez, this diary, while it may be legally correct, is ethically and morally bankrupt.  If what you're saying is true, and Barack Obama is worth the paper his law degree is printed on, he should be EXPLAINING all of this to the American people.  

    He's too worried about the brass ring he's trying to grab for himself.

    As for me, this diary may be legally sound, but I stand four-square with Senators Dodd and Feingold, the Patriot Act BE DAMNED.

    •  No ... what I mean is ... (5+ / 0-)

      If we're going to talk about FISA, let's talk about the real, pressing dangers it poses to the Fourth and Sixth Amendments in light of the USAPA, even if the Bush Administration followed it to the letter.

      We've a much bigger battle ahead, my friend, and we don't yet have the political clout to win it.  But win it we must, if we are to retain our Constitution.

      •  Oh, I get it, we're not going to fight it now, (2+ / 0-)
        Recommended by:
        migo, doe

        we're going to fight it later.

        Ha, ha, ha, ha, ha.


        Ha, ha, ha, ha.

        I cannot, ha, ha, ha, stop, ha, laughing.

        •  No, you don't get it. (1+ / 0-)
          Recommended by:

          What the diarist pointed out was that even if we fought this bill and won, we wouldn't have restored our fourth amendment rights.

          In order to do that we have to address the Patriot Act. In order to address the PA, we must have a Democratic President and a large majority in Congress. And in order to achieve that, we must quit being childish about this bill and work our asses off to get Obama and as many Dems elected as possible.

          Maybe you should read the diary and understand the argument. You're making yourself look as if you have no concept of political reality.

          "Whatever America hopes to bring to pass in the world must first come to pass in the heart of America." --Dwight Eisenhower

          by Dragon5616 on Thu Jun 26, 2008 at 03:19:01 PM PDT

          [ Parent ]

      •  Thank you for the reply (1+ / 0-)
        Recommended by:

        You showed better self control than I did.  After posting my comment, I realized I managed to be judgmental without even making my point.

        For me, this has nothing to do with the Constitution, or the Bill of Rights, or the Fourth Amendment, or the Foreign Intelligence Surveillance Act,, or the Patriot Act, or the Military Commissions Act, or the Protect America Act, or terrorism, or, for that matter, national security.

        This is about the rule of law.  Can the President, in the name of national security, with no oversight, put himself above the law?  

        I guess you think that Obama is doing the savvy thing, going along to get along until he has the reinforcements that he needs.

        I disagree.

        I think he should be using this legislation, and his principled opposition, to stand for the very bedrock of our system of governance:  we are a nation of laws, laws that no President can place himself above, ever.

        I grow weary of a political culture that mimics those three silly monkeys.

        •  Thank you for a reasoned reply. (1+ / 0-)
          Recommended by:

          I think he should be using this legislation, and his principled opposition, to stand for the very bedrock of our system of governance:  we are a nation of laws, laws that no President can place himself above, ever.

          Sadly, this simply is not what "the rule of law" means, and never was.  Presidents have broken laws throughout our history, from Thomas Jefferson's undeclared Barbary War and James Madison's refusal to swear in Judge Marbury.  Jefferson got away his, but Madison didn't.  Indeed that case, Marbury v. Madison, established the rule of judicial review, the idea that the courts had the authority to review actions of the Legislative and Executive Branches, determine whether they complied with the Constitution, and order a remedy if they did not.

          That process is "the rule of law."  It's not about presidents or legislators obeying the law, but the legal process we observe and respect when they violate it.  An important part of that process is ensuring that citizens can know when their rights have been abridged - that government cannot prosecute them using secret evidence - so they can ask the court for a remedy.  FISA does not allow that.  That should matter to you, if you care about "the rule of law."

          •  Please hang with me (0+ / 0-)

            I am not a lawyer.  I may use legal terms in a sloppy way.  I appreciate the education you are giving me.

            The fundamental issue I thought we were talking about was Barack Obama's response to the recent "FISA Fix," if you will permit me to use that appellation for the legislation pending in the US Senate.  I think he failed, utterly and completely, to seize the central issue.  Your diary made the argument that he was doing the savvy thing by supporting the compromise.  

            We can argue for hours about what "the rule of law" means.  To me (a surgeon), it has always meant that the law decides the outcome, not the arbitrary whims of power hungry humans.  I am not interested in discussing historical precedents for Presidential law-breaking.  I am interested in assessing the proper response of a co-equal branch of government when that occurs.

            As I see it, we're both right about "the rule of law."  I say it means the President has to obey the law of the land, as passed by the peoples' representatives.  You say it means that he has to face the consequences if he fails to do so.   This feels like a distinction without a difference.

            Back to my point:  Obama has failed.  In my humble opinion, he should have stood in principled opposition to this legislation, if for no other reason than to derail it.  Doesn't your definition of the rule of law include full vigorous investigations of Presidential lawlessness?  By supporting this legislation, Obama makes those investigations much less likely.  Keeping heat on the telcos is the only way we're going to find out exactly what has been going on (the rule of law, no?).

            I will repeat what I said originally:  to claim that what Obama did last week doesn't really matter because the Patriot Act is a foul smelling piece of legislation seems bankrupt to me.  Not pragmatic, bankrupt.  If he were the game changer all his followers claim he is, he would have used last week as a teaching moment about all the issues you and I have touched upon.  Right now, he has a microphone nearly as loud as the President's, and he gave it away, for reasons I still cannot fathom.  And what has he gotten for it?  Charges of being WEAK, by Grover Norquist:  "John Kerry with a tan."

            I'm not saying McCain is better than Obama.  However, you have yet to convince me that he handled the FISA situation well.  For me, he's just another power hungry politician.  He smells an awful lot like Bill Clinton to me.  As a blogger far wiser than I pointed out, this is useful information to have when assessing the man, as a candidate or as a President.

  •  So does this mean (4+ / 0-)
    Recommended by:
    bustacap, Dragon5616, NCrissieB, drache

    We (meaning collectively, not me personally) shouldn't piss, moan and in true echo-chamber fashion announce our declarations to not vote or do anything that may benefit Obama or the collective whole of the Democratic party?

    Well where's the fun in that?

  •  Thanks! (4+ / 0-)

    Thank you for breaking this down for us non-lawyers out there.

    I know this still won't please the people who can't see the forest for the trees, but it helps puts things in perspective.

    This really is just political fodder for Republicans.  And I think Obama just maneuvered around them once again, since his eye is probably on the forest.

  •  Straw men on sale! Get your straw men here! (9+ / 0-)

    No one is expecting him to "die on a hill", for God's sake.

    They're expecting him to vote No against unconstitutional legislation, lose, and fight another day.

    See the difference?

  •  great job, recced . . .but.. (4+ / 0-)

    but you are talking about another battle entirely (one that we should & can only fight with a serious Dem in office with serious numbers of senators)

    I am concerned about two things today:

    1. Basket warrants
    1. The killing of lawsuits that will give the American people an idea of what exactly the Bush admin was up to.

    Combine point #1 and the "wall" not existing, you have potential for massive maliciousness

  •  Thank you so much for this fantastic diary (3+ / 0-)
    Recommended by:
    KFlake, alkalinesky, NCrissieB

    Seriously. You are my new favorite person.

  •  thanks for (1+ / 0-)
    Recommended by:

    lesson on political self defense;

    Iraq is the biggest disaster in American foreign policy ever in terms of unintended consequences. It is worse than Vietnam. Former Sec. State Madeleine Albright

    by pollwatch on Thu Jun 26, 2008 at 07:06:16 AM PDT

  •  I'm sorry. (5+ / 0-)

    I feel like you've missed the point completely.  The problem with the FISA surrender is not so much about how and when the government spies on US citizens, it's about making sure that no one in the Bush Administration, and none of the Big Telecom companies can EVER be held accountable for breaking the law. THAT is why so many of us felt like we'd been punched in the gut last night . . . because Senator Obama has now lumped himself in with a bunch of pretty lame-ass, little d "democrats" who would rather protect the Bushies and the Telecom companies than Americans' right to privacy.

    These people broke the law - by their own admission. If I break the law, I have to go to jail. Why are these people different?

    •  I agree with you, but.... (6+ / 0-)

      There simply are not the votes right now to get what you want.  And "dying on this hill" won't get us to the far more important hill of restoring our Fourth and Sixth Amendment rights.

      I wish we could put these people in jail.  Truly, I do.  But right now, we simply do not have the clout to do it.

      And, by the way, while the House bill does provide an affirmative defense of "acting in good faith under color of law" in civil cases ... that does not extend to criminal cases.  The bill specifically provides that violations can be prosecuted criminally.

      Given a choice of a civilian suing a telecom, and a federal prosecutor bringing an indictment, I'll take the latter.

      •  HaHaHa (3+ / 0-)
        Recommended by:
        migo, daveinchi, rolandzebub

        "that does not extend to criminal cases.  The bill specifically provides that violations can be prosecuted criminally"

        This will never happen.

        "Given a choice of a civilian suing a telecom, and a federal prosecutor bringing an indictment, I'll take the latter"

        It should be both. How is it that your telling Americans you can't sue for a company breaking the law and everything is ok. This is pure fascism.

      •  We knew this Clunker was likely to pass. . . . (3+ / 0-)
        Recommended by:
        migo, lotlizard, AmericanRiverCanyon

        . . . so why not make a stand?  Why not play to your base, rather than trying to meet the psychopaths half-way?  

        At least you can tell YOUR base then, that you TRIED!! Now Obama can't even really say that.  You can hear the deflation oozing out of the American Left, or at least, large sectors of it.  Obama, it appears, really is just like all the rest, in the end. Someone accused me last night of wanting Obama to be "the Messiah." I'm like "really?" You'd consider Chuck Schumer to be "the Messiah?"

        It's really, really disheartening.

        •  Ordinarily I would agree (2+ / 0-)
          Recommended by:
          Dragon5616, NCrissieB

          with you daveinchi. I am struck though with this diarists take on this. I agree with her in that Obama has the smarts to figure this type of thing out about 10 steps ahead of us. I think we really will be amazed at how he  has strategically mapped out his way forward, and I believe we here will not always be in the know, but in the end will come to realize the strategy.

          Why do I think this way. I just finished reading both his books, and have come to understand that the way he ticks is really in tune with our progressive principles. It is in his marrow. He taught constitutional law, and LOVED it. Loved the back and forth, and all the questions puzzling things out with his students. He always made them think. Reaching back to his community organizing days, I saw how in some instances he might have to loose a battle or two but put that knowledge into ultimately winning the wider war. He was ALWAYS questioning, thinking, learning. I do think he will go after the USApatriot act after he is in office.
          Do I know this for sure, no. Sometimes you need get a feel for where the person is coming from to understand how they play the game.

          If I'm wrong in this, well, at least I feel we will get at least 85% of our concerns addressed if he is Prez. Much more to be happy about than not. I'm not ready to abandon ship just yet. Keep you eye on him. He will surprise sometimes, I'm sure disappoint others, but as a whole, I think we still have an exceptional candidate.

          "In a time of universal deceit, telling the truth is a revolutionary act."-George Orwell

          by Babsnc on Thu Jun 26, 2008 at 09:16:10 AM PDT

          [ Parent ]

      •  There may be enough votes if we fight hard (0+ / 0-)

        enough. The first bill was rewritten precisely because people like mcjoan, Greenwald, KagroX, and Hunter and other notable bloggers informed us of what was going on, and we started making phone calls to our reps.  Now, we have Harry Reid saying he'll vote 'no' after much wishy-washy pandering to the right, and Obama has said he will maybe support the filibuster he promised long ago...after he said twice in two weeks that he supports the FISA bill for "security" reasons.  The changes have occurred because we fought for them.  Not because we shelved it to fight another day for a much bigger cause.

        "We, two, form a multitude." --Ovid

        by CanyonWren on Thu Jun 26, 2008 at 12:20:51 PM PDT

        [ Parent ]

  •  I see FISA as one front of the fight and I'm not (7+ / 0-)

    going to defer any fight that involves the Constitution just because it may be lesser to others - that is how we got this far away from the Constitution in the first place - by letting little bits and pieces slide as if somehow these little chips away with the chisel wouldn't amount to much in the long run - they will and they have.

    I would argue that the reason that the Patriot Act was even able to pass is that people were over years - starting with the Reagan Administration - condidtioned to let "the little stuff go".  Had people not been conditioned in this way over decades, The People and their elected officials might have actually responded to the Patriot Act with contemptous laughter rather than a warm embrace.

    My father - also a criminal defense attorney - spent the time during Bush's first term laughing contemptuously at the Bush Administration's assaults on the Constitution saying repeatedly, "They can't do that."  At some point, I said, "But they did and no one has stopped them.  Now what?"  I'm still waiting for an answer to that question.

  •  Chris Dodd quoting Reagan (1+ / 0-)
    Recommended by:

    Find transcript of Dodd's plea against immunity here

    ``Trust me'' government is government that asks that we
        concentrate our hopes and dreams on one man; that we trust
        him to do what's best for us. My view of government places
        trust not in one person or one party, but in those values
        that transcend persons and parties.

  •  Without laying down this marker... (16+ / 0-)

    I think a Democratic president, with or without 60 votes in the Senate, sails right past this and never returns to the issue.

    The fight isn't about winning every time. It's about marking out battleground. And no, the FISA fight isn't limited to fighting about FISA. It's part of the larger fight against the unchecked expansion of executive power.

    That a Democratic president, with or without a Democratic Congress, would pledge to live within the bounds of the law isn't a solution to the problem, it's a symptom of it. It means the rule of law only exists in this country when presidents deign to allow it, and worse, that only Democratic presidents will do that.

    I say that's worse because Republicans have taken 7 of the last 10 contests, reelecting three presidents of their party in the last 40 years. Democrats, on the other hand, have reelected only one president since FDR, and he got impeached.

    If the rule of law is only fought for when there are Democratic presidents, we don't actually have the rule of law, and will only have a facsimile of it as the exception to the rule, some 30% of the time, if recent history is any guide.

    •  Sad but true, Kagro (1+ / 0-)
      Recommended by:

      Yes, it's pathetic that the Constitution often only really exists - gets any real protection and any real clout - under Democratic leadership.  That ought not to be.

      But it is.

      The core of conservative ideology is what George Lakoff describes as the Strong Father frame.  That is, the government and especially the president are the "strong father" who know best, and whom the rest of us ought to obey without question.  That frame is profoundly un-American.

      So yes, if we care about our Constitution, we have to make sure we elect enough people to protect it.  It shouldn't be that way.  But it is that way.

      •  And because it is... (10+ / 0-)

        It makes it all the more important that we "fight battles" even though we can't "win" them, so that those we elect will have a clear idea of what we expect of them when they win.

        Not that that's been working all that well lately.

        But sitting on your hands about the issues and working instead for purely political outcomes leaves the elected with little or no idea of the agenda you sent them to DC to pursue.

        Which is why you "fight" even when you can't "win."

        Fighting is the medium through which you give your ballot meaning beyond the selection of a name.

        •  There's a saying in sports: (1+ / 0-)
          Recommended by:

          "Losing stinks and winning is the only deodorant."

          I don't like fighting losing battles "on principle," because losing the battle weakens the principle.  This principle - upholding our Constitution, even against the threat of terrorism and the like - is far too important to weaken by losing trivial fights during an election year.

          This is one we need to start fighting in 2008, with a Democratic White House and a Democratic Congress, so we can be damn sure we win it.

          Because we can't afford to lose, even "on principle."

          •  I disagree with your definition. (8+ / 0-)

            There's no such thing as fighting something solely "on principle."

            Fighting something solely "on principle" is something you do in your own head.

            Fighting something in order to demarcate the boundaries of principle is something you do to communicate to elected officials what your desires are.

            If you stop doing that, you're not voting. You're shopping from a menu of issues you're offered as a "government consumer."

            Nor is there really anything about fighting and losing that by itself weakens the principle. It's quite thoroughly weakened with or without the fight. But without it, you can't even really argue later that it was ever a principle to begin with.

  •  2 wrongs do not make a right. Sorry, but this is (11+ / 0-)

    really convoluted logic to explain why it's okay for the Democrats to vote for a bill that is unconstitutional and undemocratic.

    As an attorney, you should understand that the 4th amendment trumps all, so no law can be passed to diddle with it, and it's not already gone.  The plaintiffs would win their cases against the telecoms hands down, and you and Obama should realize that.  The Telecom industry realizes that, which is why they have lobbied so hard for this bill to grant them immunity.  If the cases were not strong, with the 4th amendment on their side, why bother to fight for immunity?  

    This is a specious argument for caving into the telecoms.

    Shame on any Senator who defies his or her oath of office and does not valiantly, as Senator Dodd did, defend the U.S. Constitution.  

    Shame on any Senator who votes for immunity for lawbreakers and deprives us of a proper investigation into this affair.

    IT'S ALSO A  COVER UP!!!  You didn't talk about that aspect of FISA...for a reason.

    If these lawsuits by citizens and organizations  who were spied on, and who had nothing to do with Al Qaeda, were allowed to be litigated in a court of law, not swept under the rug by oily lobbyists and their whipped Congressmen and Senators, Bush would be out of office in a heartbeat.  He wouldn't be able to unilaterally attack Iran and millions of lives would be saved.


    Senator Dodd is alive and well, and he heroically fought this battle to his credit, not to his downfall!

    This is what democracy looks like:

    This is what Obama should do, which is what he promised us that he would do!

    Travesty of justice!  Shame on any lawyer who defends this.  FIE!

    BTW, your diary is a downer.  It does not change minds, but makes people lose their enthusiasm.  Seriously, the poor reasoning was an insult to your intelligence and to ours, if you think Kossacks would swallow it, you're mistaken.  It only riles us up more.

    Quit defending the indefensible, because it's doing more harm than good.  It's called pouring salt into open wounds.  Not a smart way to handle this betrayal, which is just what this FISA bill is: it's a betrayal to the American people and putting the interests of the TELECOMs and the Bush administration ahead of WE THE PEOPLE.

    "Information is the currency of democracy." ~ T.J.

    by CIndyCasella on Thu Jun 26, 2008 at 07:14:09 AM PDT

    •  His diary is enlightening (3+ / 0-)
      Recommended by:
      winterbanyan, NCrissieB, shayshay

      The only thing it "downs" is outrage for outrage sake--and that has little place in a reality based community.

      His reasoning is clear and well articulated, and he himself is a Kossack so stop trying to define him as an other because he doesn't share your point of view. Shame on that.

      Our outrage should be channeled toward a productive end and this discussion helps us do that. Telling people to shut up on this issue is not helpful.

      •  Read the Constitution, please. (1+ / 0-)
        Recommended by:

        While you're at it, read the oath of office that Senators must take.  

        I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

        It's not something to take lightly.  It's what makes us a free society, not a "reality based community," in which we accept that we no longer have a right to privacy, because "it's already gone."

        My point wasn't that you or the author of this diary weren't Kossacks, but that most Kossacks understand that the argument herein is ... how should I say it?


        "Information is the currency of democracy." ~ T.J.

        by CIndyCasella on Thu Jun 26, 2008 at 01:37:20 PM PDT

        [ Parent ]

  •  Civil vs criminal (1+ / 0-)
    Recommended by:

    Sorry if this was already addressed earlier, trying to read through comments but don't have much time. It sounds like this legislation only addresses civil suits and not criminal suits. My understanding is that civil suits are really the only way we would be able to get at this information (i.e. the admin's exact actions in regards to getting cooperation). Criminal suits are unlikely, at best, to ever get off the ground on this. Is this true? If so, then it seems we really should fight for civil suits.

    Guil: So there you are. Ros: Stark raving sane. - T. Stoppard, Rosencrantz & Guildenstern are Dead

    by eco d on Thu Jun 26, 2008 at 07:15:07 AM PDT

  •  Front Page This Diary n/t (1+ / 0-)
    Recommended by:

    One day posterity will remember, this strange era, these strange times, when ordinary common honesty was called courage. -- Yevgeny Yevtushenko

    by RandomActsOfReason on Thu Jun 26, 2008 at 07:16:30 AM PDT

  •  sorry, but you do not get it... (6+ / 0-)

    The reason why I(and many others) are so adamant about the telecom immunity provision is because allowing civil suits to proceed against the telecoms is hands down the best way to learn everything that has happened and put this info into the public sphere. THAT is the point.

    We are all too familiar with what happens when the government investigates itself: the most controversial acts are kept secret and the scope of the investigation is kept narrow. The discovery process in a civil trial will tell us what we need to know. It appears that the government has been scooping up all our electronic information and this goes way beyond what FISA was ever intended to check. I'm talking about the government scooping up all domestic to domestic communications! This is Big Brother.

    Wake the fuck up, skeptics! What has happened here HAS NEVER happened before. COINTELPRO doesn't hold a candle to the crimes here.

    •  Hold On a sec (0+ / 0-)

      COINTELPRO doesn't hold a candle to the crimes here.

      Oh dear.

      Please begin reading on page 95 under the heading The FBI and Martin Luther King

      •  Yeah we know (0+ / 0-)

        What we don't know is what's been done under Bush/Cheney with their illegal spying. I have to agree with you that until we do, COINTELPRO takes the prize.

        You got no fear of the underdog. That's why you will not survive. - Spoon

        by brainiacamor on Thu Jun 26, 2008 at 08:35:32 AM PDT

        [ Parent ]

      •  back then they didn't have the computers, routers (0+ / 0-)

        and massive electronic databases to collect and sift through every single piece of electronic communication(voice,emails,etc) within this country. This is Big Brother in it's awesome glory. It is a full on frontal assault on the 4th Amendment...imagine COINTELPRO on a vast wider scale. So, yes, COINTELPRO doesn't hold a candle to the crimes here.

        "Oh dear" indeed.

    •  But civ courts under Bush wouldn´t LET this (2+ / 0-)
      Recommended by:
      migo, AmericanRiverCanyon

      get into the public sphere, anyway. They would simply shop for a sympathetic jurisdiction.

      The main role of the FISA telecom immunity provision is to force Democratic candidates to become enemies of the telecom executives and cut those candidates off from telecommunications industry votes and campaign contributions.

      Telecom executives are all potential Obama supporters. I think the idea that we're going on a rampage against them must be making Karl Rove cackle with glee.

      •  So your saying (1+ / 0-)
        Recommended by:

        Obama and others are willing to take a pay off?

        Kind of like what McBush does with regards to oil companies.

        •  You are pure. They are practical. If (0+ / 0-)

          we can get flawed Democrats who still have some vague dependence on PACs and corporate donors to control the White House, the House and 60 seats in the Senate, then I know the United States would be a much, much better, safer place to live than a United States in which Democrats have been purer than pure and continue to have a slim majority in the House, 51 votes in the Senate and an obstructionist in the White House.

          If Obama and other congressional Democrats have to back down on some fights they weren't going to win, anyway, to win other battles that might make a real difference, good for them.

          I think Obama has said that he's going to try to be more positive and more honest than the Dubya Shadow Monsters have been. But I don't think he's ever said he's going to let himself lose to the Shadow Monsters just because he's too gentlemanly to play hard.

          Obama is from Chicago. Obama knows how to play hard.

      •  that's a pretty cynical and disgusting (1+ / 0-)
        Recommended by:

        argument. That Obama ought to sell out the Constitution for campaign contributions? I thought we were different. Bullshit argument.

  •  Thanks for the education. (0+ / 0-)

    Very informative.

    "Mankind shall not be free until the last king is strangled in the entrails of the last priest." -- Denis Diderot,

    by KozmoD on Thu Jun 26, 2008 at 07:18:01 AM PDT

  •  Only 30 Senators have an idea (8+ / 0-)

    of what Bush did and is doing in spying on Americans.  They are unable to advise the other 70 Senators about what they know because of National Security.

    We know during Bush's two terms, the worst bills are introduced pre-election cycle so Bush can threaten to play the fear card on these tyrannical, fascist, bills, saying the Dems are weak, weak, weak.  And like a trained dog, the Dems react the same way every time, giving Bush any and everything he asks for.  This is how AUMF and the Patriot Act passed.

    The Dems always run scared.  They are making the same mistake here.  

    The Bush administration has the worst record in US history on human rights and lying to the people.  The FISA bill should be off the table until we get out of the election cycle and have a new administration.

    It certainly, is a mistake to give anyone or corporations immunity for caring acts out by request of the unitary executive,  while there are secret renditions, secret prisons of torture, and hundreds of pending lawsuits in Federal Courts.

    I heard Obama say many times, not this time, not this election,  we want to change the old mindset in DC that has lead to all the problems.  Perhaps I am mistaken, but I thought Obama was talking about ending the march towards tyranny and fascism that largely is based from Bush & Cheney playing the fear card.

  •  It's a trap (1+ / 0-)
    Recommended by:

    Barack is too smart to fall into the trap.

    •  It's a trap of our own making (2+ / 0-)
      Recommended by:
      lotlizard, AmericanRiverCanyon

      It never needed to see the light of day, but for Steny Hoyer and Nancy Pelosi.

      And it's also a trap Barack could fight to undermine with a filibuster in the Senate. It worked last time.

      Not holding my breath for that.

      You know, people still give Bill Clinton shit about "don't ask, don't tell", but that was AFTER he went to bat for gays in the military and got his ass handed to him for it. (And that was 16 years ago.) And that was after he ran on it. And many of us were pissed at Clinton for that back then. Of course, back then something like this was pretty much inconceivable. At any rate, Republicans would have found their libertarianism right quick.

      You got no fear of the underdog. That's why you will not survive. - Spoon

      by brainiacamor on Thu Jun 26, 2008 at 08:26:03 AM PDT

      [ Parent ]

  •  It used to be (2+ / 0-)
    Recommended by:
    lotlizard, AllanTBG

    the conservative view of the Judiciary supported preservation of individual and State rights and were slow to allow power grabs by the Federal Government.  Now, if a prospective judge can pass the litmus test of supporting the fundamentalist social agenda, he's good to go on corrupting the Constitution.  

  •  Thank you for explaining why I'm not an (0+ / 0-)

    American. So when can we jail the fascists for turning us into peasants?

    John McCain like Bush only stupider

  •  Thanks for this assessment. (5+ / 0-)

    The whole of the Bush administration has been a harsh demonstration that a rogue executive branch need not respect laws of any kind, nor worry about any legal consequences. "A Nation of Laws, not Men" is for the chumps, and USPA is for the proles.

    Add to that a growing national angst seeded by the tremendous asymmetry between the text of the Constitution and the actual day-to-day, street level experience of citizens. Those in power who would reduce that mismatch are few and far between.

  •  lets agree that all you say is true (6+ / 0-)

    show me a single piece of evidence that anyone is doing anything about it!
    (the FISA court or patriot acts)

    no, this may not be "the hill to die on", but it was a great place to set up your HQ.

    nice to know our 4th amendment is already gone so standing up for what is right against this bill makes no difference.


    "Do not go where the path may lead, but go instead where there is no path - and leave a trail " -Epicitetus

    by JadeZ on Thu Jun 26, 2008 at 07:33:32 AM PDT

    •  Once again the Dems are to roll over to (2+ / 0-)
      Recommended by:
      AmericanRiverCanyon, two roads

      whatever Bush wants because.... the bill doesn't really matter.  Either freedom is already lost or the bogeyman is out to get us.

      Even Bin Laden has to be impressed at how effectively Bush has played the terrorist card.  That movie has been played before, in Nazi Germany.

      I thought Obama would be the one to change course on the Titanic,  instead of using Republican talking points to justify supporting a bad bill.

      •  I don't understand (4+ / 0-)

        why the House Dems revived this flesh eating zombie when they didn't have to

        why Obama flipped position on this when it just makes him look like John Kerry II, weak flip flopper extraordinaire

        why the need to apologize for Obama on this is so freaking desperate

        well really I do understand all of the above, and it's all pretty unimpressive

        but fortunately for Obama - and more so for Bush - this issue is largely being ignored by the media and hence by voters

        You got no fear of the underdog. That's why you will not survive. - Spoon

        by brainiacamor on Thu Jun 26, 2008 at 08:20:31 AM PDT

        [ Parent ]

  •  And I'm back to confused... (0+ / 0-)

    after reading Greenwald, maybe I'll just sit this one out

  •  as opposed to whining about FISA (8+ / 0-)

    How about this for a strategy for restoring the Fourth Amendment?

    Step 1: Elect a President who is a Constitutional Law Scholar and will try to respect the document rather than view it as toilet paper.

    Step 2: Trust that President to nominate judges who actually care about the Constitution and properly interpreting the rights of citizens it contains.

    Step 3: Get court cases that challenge unconstitutional laws to the Supreme Court so they can strike them down.

    The only problem with this plan is where will we ever find a Constitutional Scholar who is also a candidate for the POTUS? Hmmmm, I wonder.

  •  As usual, it's worse than we think. 2 questions- (3+ / 0-)
    Recommended by:
    mikolo, BlueInARedState, NCrissieB

    I've heard arguments that even without statutory immunity, the telecos likely have doctrinal claims for immunity since they claim to be acting based on directives from the government.

    Do you know if this is correct or not?

    If so, the biggest difference between statutory and common law immunity would be the necessity, perhaps, of establishing the necessary factual predicates.  Depending on how far you need to go, that would accomplish the main goal of getting out the facts of the government's involvement.

    Thus, the impact of this bill would be whether the certification process provides substantially less chance of that happening than under a common law immunity doctrine.

    I think the answer is, who the %^&* knows?

    Second question, as I work on the civil side where protective orders are all too easy to get and so plenty of discovery shedding light on corporate malfeasance can never see the light of day.  What happens on the criminal side?  Even if this stuff goes to court, will it be sealed on the basis of national security?

    Excellent diary, BTW.

    •  Acting under color of law.... (3+ / 0-)
      Recommended by:
      Femlaw, Dragon5616, Parhelion14

      In any civil case, the defendant can claim that he was acting in good faith, according to his best knowledge of the law.  That is, that his actions were legally "reasonable."  As you know, almost all civil cases turn on the "reasonable person" rule.

      In most cases, that is an issue of fact, to be decided by the jury.

      What this bill does is make it a threshhold issue of law, to be decided by the trial judge.  If the telecom presents some evidence that they acted in good faith on an official request, then the case is dismissed without regard to other issues.

      Some here have argued that there is no mention of "good faith" in the statute.  There isn't, that's true, but it's implicit in any civil case.

      For example, if the FBI requested a tap on Able, but the technician handling the switching for the telecom also had a personal grudge against Baker, and thus switched on taps for both.  The tap on Baker would not be "acting in good faith under color of law."

      That distinction is significant, because the FBI found several cases where the telecoms "dumped" far more information - including enabling more taps - than had been requested.  In those instances, and they may well be discoverable, there is a litigable issue as to whether the telecoms acted in good faith under color of law.

      So this statute does not give a blanket grant of immunity, even where the telecom acted in response to an official government request.  What it does do is outlaw these non-warrant requests, and require all such requests to go through the FISC.

      My concern is simply that going through the FISC is zero protection for a criminal defendant, because FISA warrants are classified and the defendant is not allowed to see the affidavit of underlying facts upon which the warrant was issued.

      We need to be up in arms about the issue of civil liberties, yes, but we need to pick the real and pressing issues to be up in arms about, rather than the made-for-political-theatre issue of this bill.

  •  very educational, thank you SO much! n/t (2+ / 0-)
    Recommended by:
    BlueInARedState, Parhelion14
  •  Good diary (1+ / 0-)
    Recommended by:

    in a lot of ways and I agree, this is not the only bill that hurts the 4th amendment.  The FISA court itself doesn't sit well with me.  I'd like it if we were debating the relative merits of getting rid of it, but I suppose right now that's too much to ask.

    However, I disagree that this is a pragmatic stance.  Obama is siding with Congress here, and last time I checked, no one likes Congress.  It would be like McCain going on TV saying how much he loves Bush.  Obama should be running from Congress like they have the plague.  

    And Democratic registration is up this year.  Obama is trying to reach across the aisle (for what I don't know) when he doesn't have to.  He could run a purely partisan campaign and still win.  I'm afraid Bob Barr is going to draw off a lot of libertarian minded Democrats who don't like his stand on this issue.  He needs to hold onto the base not worry about changing Republican's minds about him.

  •  Go Girl Go. The times are a changin. (4+ / 0-)

    I am an old retired Korean combat vet who was raised in the rural South. I took bigtory and raceism to be a fact of life like weather and hard times. It was part of the atmosphere and I was not smart enough to critise the atmosphere. I was not hard core but I knew quite a few who were. In middle age I finally began to think about it and see the wrong and injustice in the system. I have progressed to the point that I rooted for and contributed to Donna Edwards campaine and she is not from my state, and she is not male, and she is not white. Times are a changin.

    Our local governments are notoriously corrupt and fit in very well with the republicans. At this time their campain donations are running four to one over the democrats but I do not think that is represrntative of how the elections will go. We have managed to elect a democratic govenor and have made inroads in local offices. I think a big suprise is on the way. Times are a changin.

    Your diary was so well written, so straight from the heart and straight to the point that I think it may wake up those with tunnel vision. I also think that three determined young women with a common goal are bound to succeed. I look forward to your future diaries and wish you great good luck.

    Evangelical Christians are a far greater danger to America than Muslims.

    by orisk on Thu Jun 26, 2008 at 07:51:05 AM PDT

  •  We have to repeal PATRIOT (3+ / 0-)
    Recommended by:
    roubs, lightfoot, Dragon5616

    I hated it the moment it got passed. We need to repeal the PATRIOT Act - it was bad legislation.

    Every day's another chance to stick it to The Man. - dls.

    by The Raven on Thu Jun 26, 2008 at 07:52:40 AM PDT

  •  Why can't you appeal the secrecy of the FISA... (1+ / 0-)
    Recommended by:

    FISA warrant...? Someone with clearance to see it should be able to review the warrant, see that its bogus and the results of carrying it out had no impact on national security and then de-classify it so that you can actually have a fair trial.

    Why can't that happen?

    •  It's classified, under FISA itself. (2+ / 0-)
      Recommended by:
      roubs, Dragon5616

      FISA was never intended to be used in criminal prosecutions ... period.  The entire crafting of the statute assumed that it would not be used in criminal prosecutions.

      That's the big problem here.

      •  So if we are amending FISA... (1+ / 0-)
        Recommended by:

        And don't have the 60 votes yet, could the amendment include the ability for it to work in both worlds such that individuals can challenge secrecy in  criminal cases where secrecy does not need to be maintained?

        •  Keep in mind.... (3+ / 0-)
          Recommended by:
          joy sinha, shayshay, Parhelion14

          FISA was never intended to develop evidence for criminal prosecutions.  Every clause in FISA was crafted under the assumption that it would not be used to develop evidence for criminal prosecutions.

          Fixing that would require totally gutting and rewriting FISA, so that it would provide the same protections - allowing the defendant to review and challenge the factual affidavid underlying the warrant - we expect in any criminal investigation.

          That's just not going to happen in a law that is designed not for criminal prosecution, but to allow the government to perform counter-surveillance on foreign intelligence agents.  Using the same law for that would put too many intelligence assets at risk ... real people, at the very real risk of they and/or their families being really dead.

          That's why we need to restore that wall between FISA and criminal prosecution.  One law cannot do both, not well.  FISA worked well for what it was written to do, but it simply cannot be used in criminal cases ... if we intend to preserve the Fourth and Sixth Amendments.

  •  this may be your first recommended diary (6+ / 0-)

    but in my mind it is probably the MOST important diary written on the FISA matter since the blogosphere woke up and started swarming.

    It is further proof that it is indeed we the people who need to wake up and hold our own feet to the fire.  The unbelievable results of the immmutable laws of uinintended consequences is in full swing here.

    Far too often, in the throes of panic, fear, anger, whatever we scream for action only to find out later that the action we demanded has backfired and it is is we who are in the cage.

    When the Patriot Act was passed most of the American people were screaming fro Congress and the president to do something. They did. This is the result. It happens over and over again.

    It is the old sausage making adage over again.  The trouble is that most of neither have the time, the inclination nor the knowledge to fully understand the ramifications of the acts we demand from our lawmakers.

    •  Wow, thank you! (0+ / 0-)

      I guess I could also be a soccer grandma, as I still play for a local city club, but at 47 I'm kind of the "team grandma."  I don't get around as well as I did in my 20s, but I love being out on the pitch and getting into that mindspace.

      Thank you for a lovely comment!

    •  NOONE seriously thinks we're going to restore (1+ / 0-)
      Recommended by:

      the wall of separation. It's a ridiculous notion that somehow it will be on the agenda next year. A ruse to defuse the current battle of FISA.

  •  This is an interesting perspective. (1+ / 0-)
    Recommended by:

    Do you have any evidence that Barack Obama sees this the same way, beyond "well, he's a smart guy, he must have come to the same conclusion"? (And if he does, why did he oppose the previous version of the bill?)

    And I have also heard repeatedly, though I can't recall the technical details at the moment, that granting immunity to the telephone companies would effectively be granting immunity to the Bush Administration, because there would no longer be any way to uncover and hold them accountable for their crimes. This is the primary issue for me -- the phone companies are small fry compared to the Bush Administration.

    "Beauty is truth, truth beauty, - that is all ye know on earth, and all ye need to know." --Keats

    by Illissius on Thu Jun 26, 2008 at 07:54:45 AM PDT

    •  He's talked at length ... (4+ / 0-)

      Barack Obama has talked at length about the need to restore our Constitution.  That is part of what he means by "the fierce urgency of now."  You can read about it at his website.  He is not at all blind on this issue.

      As to the investigative element, this bill would only provide an affirmative defense of immunity in civil actions.  It does not provide immunity from criminal prosecution.

      Obviously, no prosecution is going to happen under a GOP administration.  But Obama is on the record as saying that he will have the DOJ investigate these and other acts, and if criminal prosecution is warranted, he'll support it.

  •  The FISA Court's role as a rubber stamp (2+ / 0-)
    Recommended by:
    LeftOverAmerica, NCrissieB

    is well-known by all reasonably well-informed people. While the FISA law institutionalized a gross infringement on the Fourth Amendment, it served as a bottleneck on wiretapping as well as mitigating even more egregious violations that had formerly been practiced. See the Electronic Privacy Information Center: Foreign Intelligence Surveillance Act Orders 1979-2007. The latest Democratic capitulation represents yet another step backwards in the defense of the Fourth Amendment, excusing past criminal behavior and opening the floodgates for legalized electronic survellience on a massive scale.

    This diary brings up the legitimate issue of the relationship between recent events and the institution of the odious Patriot Act, yet another issue on which the Democrats failed to protect the Constitution. This does not serve well as a valid defense for the failures of the Democratic Party.

    Do we need better Democrats or a total system reboot? I would like to think we have the power to elect better Democrats, but clearly we have a long and hard road ahead.

    The illusion of freedom will continue as long as it's profitable to continue the illusion. -FZ

    by lightfoot on Thu Jun 26, 2008 at 07:56:16 AM PDT

  •  Agree on a few things (7+ / 0-)

    I've been dismayed through this whole thing that we're ending up holding the FISC as it exists in the 1978 statute as the line in the sand. That's how bad this is. We're trying to save a rubberstamp, because it means at least someone might be providing some kind of stop.

    As to why this is the fight we're fighting--it's the one available to us. We don't get to bring legislation to the floor on the issues that matter the most to us. We can only react to what they do.

    And, of course, these civil cases were just about our last avenue to determining what the administration actually did in this program--who was targeted, did it start in a sustained way prior to 9/11, what kinds of date, the scope and depth of the program.

    There's a chance, slimming with every statement we get from him, that Obama as president might declassify all that information and we might finally learn. That seems to not be much of a priority, however.

    And, of course, what Kagro says upthread.

    The fight isn't about winning every time. It's about marking out battleground. And no, the FISA fight isn't limited to fighting about FISA. It's part of the larger fight against the unchecked expansion of executive power.

    That a Democratic president, with or without a Democratic Congress, would pledge to live within the bounds of the law isn't a solution to the problem, it's a symptom of it. It means the rule of law only exists in this country when presidents deign to allow it, and worse, that only Democratic presidents will do that.

    I say that's worse because Republicans have taken 7 of the last 10 contests, reelecting three presidents of their party in the last 40 years. Democrats, on the other hand, have reelected only one president since FDR, and he got impeached.

    If the rule of law is only fought for when there are Democratic presidents, we don't actually have the rule of law, and will only have a facsimile of it as the exception to the rule, some 30% of the time, if recent history is any guide.

    "There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty." - John Adams.

    by Joan McCarter on Thu Jun 26, 2008 at 07:59:22 AM PDT

    •  I'm trying to mark the battlefield more clearly (2+ / 0-)
      Recommended by:
      winterbanyan, Parhelion14

      I'm not supporting the current FISA bill.  I think it stinks.  But rather than going apoplectic over it, I think we need to use this moment to bring to the forefront the dire danger we're in, in terms of the use of FISA warrants in criminal cases.

      And that's not a battle we can win in this Congress, with this White House.  We do need to stake it out now, and put Senator Obama, the other serving Democrats, and every Democratic candidate on notice:  We Want Our Constitution Back!

      That's a fight that will have to start in 2009, but we need to be making clear now what the stakes are.

      That's why I'm less concerned about this particular bill than about using this bill to talk about the larger, more pressing battle ahead.

      •  I don't know how long you've been reading (5+ / 0-)

        but we have been having this sustained discussion--and sustained push with Congress--since the blog started, about the PATRIOT Act, about the revelations of this specific program in December 2005.

        You'll find the mantra "We want our Constitution back" appearing here since 2002.

        Again, this is the bill that we have, this is the one we are using to as the vehicle to have that discussion. Because we're an activist site, that means activating--the calls to Congress, the push on this single issue.

        But I give the readers here credit in recognizing the larger picture.

        That larger picture also includes getting a Democratic president elected. More importantly, it means getting a much more progressive Congress elected, one that will put progressive pressure on the presidents we have for the next 30 or 40 years.

        "There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty." - John Adams.

        by Joan McCarter on Thu Jun 26, 2008 at 08:25:53 AM PDT

        [ Parent ]

  •  Thank you!! (4+ / 0-)
    Recommended by:
    KFlake, mikolo, NCrissieB, Parhelion14
    This is how I tend to view it. The PATRIOT Act has been the real enemy all along...and the only thing that can repeal that is a Democratic White House. Obama MUST win.

    Great diary.

  •  Word! (2+ / 0-)
    Recommended by:
    KFlake, NCrissieB

    Great diary from an authoritative source.

    Could easily be the final word from this side of the FISA issue.

    It's the fascism, stupid!

    by lastman on Thu Jun 26, 2008 at 08:00:13 AM PDT

  •  4th died under "drug war" laws (3+ / 0-)
    Recommended by:
    greeseyparrot, KozmoD, Mary2002

    when the government was allowed to declare which plants are available to free men and women, democracy itself died and a new despotic government rose from the ashes of nazi germany.

    the goons of governments-past decided to create de facto martial law  via their "drug war."  innocent people die every year to "protect the children" yet if they let the market run its course like they do with Rush the Lush's big pharma drugs of choice, there would be LESS drug use.

    many many people use drugs, starting as rebellious teenagers, because they don't like that some fat balding white man or woman sitting on his or her throne is trying to tell them what to do with their own bodies.

    if you simply legalized non-toxic drugs with an age-restriction like with alcohol and regulated hard drugs's sale while simultaneously doubling or tripling the offenses if drug-users hurt others, the problem gets minimized, much like what happened in Holland.

    the USAPA is just the latest installment of systematic destruction of the US constitution.

  •  You miss the point....see Jonathan Turley (6+ / 0-)

    Feingold is right.  Jonathan Turley is right.

    Politically the Democrats show weakness.  Caving in on something this visible is STUPID!  The President wildly unpopular.  The Republican brand is wildly unpopular.

    This bill gives the Administration a pass on all its illegal wiretapping activities.  Please stop diluting the real issue here.

    •  Yes (3+ / 0-)
      Recommended by:
      pbriggsiam, lightfoot, two roads

      If anyone were paying attention aside from pundits and us, Obama's flip flop on this would make him look weak. Luckily, I don't think most of the voting public is aware. Losing your house and paying $4.20 a gallon kind of puts one's attention on more pressing matters than the Constitution.

      You got no fear of the underdog. That's why you will not survive. - Spoon

      by brainiacamor on Thu Jun 26, 2008 at 08:31:04 AM PDT

      [ Parent ]

  •  Greenwald on thinking two thoughts at once (6+ / 0-)


    It isn't that difficult to keep the following two thoughts in one's head at the same time -- though it seems to be for many people:

    (1) What Barack Obama is doing on Issue X is wrong, indefensible and worthy of extreme criticism;

    (2) I support Barack Obama for President because he's a better choice than John McCain.

    Obviously it's possible to subscibe to both (1) and (2) without contradiction.

    But evidently, even many Kossacks seem to believe that (1) contradicts (2).

    Newsflash: (1) does not contradict (2)!

    Absolute power corrupts absolutely.

    by Buckeye Hamburger on Thu Jun 26, 2008 at 08:14:15 AM PDT

  •  This is why I love DailyKOS (2+ / 0-)
    Recommended by:
    mrchumchum, NCrissieB

    even with the pie fights and candidate diaries.

    Excellent diary.

    Thanks for the legal perspective on this.  It is chilling.

    -6.5, -7.59. Dump Harry Reid. Put in someone who can rid us of Holy Joe Lieberman.

    by DrWolfy on Thu Jun 26, 2008 at 08:16:10 AM PDT

  •  Man! that Bush is sly like a fox (4+ / 0-)
    Recommended by:
    migo, FishBiscuit, two roads, NCrissieB

    He told us the terrorists hate us for our freedom and now he is taking away our freedom, so we don't get attacked.  

  •  I've learned not to worry about this (4+ / 0-)

    I think we can count on Republicans to get FISA radically reformed once they no longer have the presidency. As you all may recall, when Clinton was in office they were majorly paranoid about government spying and secrecy. Their paranoid racist little minds are going to go crazy with fear of a black president.

    And we all know how they can be when they want to get their way, even when they are in the minority.

    So... no worries! The Republicans will save us.

    You got no fear of the underdog. That's why you will not survive. - Spoon

    by brainiacamor on Thu Jun 26, 2008 at 08:28:48 AM PDT

  •  The real quesiton is what do we do? (0+ / 0-)

    If we don't take the hard line on FISA, how do we lead towards re-establishing privacy?

    What action is there to actually take in order to re-establish our 4th amendment rights?

    If it's not FISA, then what is it?  If Obama were to campaign on a principle, what would that principle be, and what policies could follow?

    Do not give in charity that which is owed in justice.

    by 5oclockshadow on Thu Jun 26, 2008 at 08:29:30 AM PDT

    •  I said that in the diary. (0+ / 0-)

      We need to restore the wall of separation between intelligence-gathering and criminal prosecution.

      •  "Wall of separation"? (0+ / 0-)

        I fail to understand your meaning.  Are you saying that intelligence-gathering should not be criminally prosecutable, even if it traduces constitutional protections and laws?  And that this will then eliminate the need to consider the possibility?  

        What exactly are we separating -- and do these activities exist on the same plane?  I think not.

        Protecting constitutional civil rights through legal enforcement is the higher mandate, absolutely key to our society's survival as a democracy.  Intelligence-gathering, and how it is done, is an Executive's choice of how to carry out his or her job -- just one of an infinite number of possibilities.

        You can't create a wall between an overarching right and a mundane practice occurring beneath it and in fact, owing to it.

        "The spirit is to win in the heart of the enemy." -- Musashi, The Book of Five Rings

        by Cyberoid on Thu Jun 26, 2008 at 10:48:46 AM PDT

        [ Parent ]

  •  IMHO this diary is political propaganda. (7+ / 0-)

    Let me get right to the bottom line with this quote by you, NCrissieB:

    "I'm convinced that Barack Obama recognizes this.  I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases.  I'm sure Barack Obama realizes that this petty knoll is not "the hill to die on."

    Really? What is it that makes you so "convinced"? How is it that you are "SURE" that Obama recognizes that this bill is a classic political bait-and-switch? How is it that you are "sure" that Barack Obama realizes that this "petty knoll", as you put it, is not the hill to die on? From where do you get all of this certainty about what Obama thinks? Would you care to site some sources or perhaps even quote Senator Obama himself? Are we to take your assertions on faith? Have you been designated as Senator Obama's spokesperson or are you perhaps channeling Senator Obama? Is it that Senator Obama has gone mute and that you are now speaking for him?

    Here is a quote from Senator Obama taken from the front page of "Daily Kos". It is there as I write this, as a matter of fact:

    "The bill has changed. So I don't think that security threats have changed. I think the security threats are similar. My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people."

    These words are directly from Senator Obama himself, clarifying his position. Let's talk about that. Let's talk about what Senator Obama has actually said rather than what you think Senator Obama thinks. The man is alive and well and speaking to the press and the public on a daily basis. I don't think the we need to hear what you think Senator Obama thinks. He is telling us himself what he thinks. Let's talk about that!

    This is why I say that your diary is political propaganda. With Senator Obama being quite articulate and quite vocal on a daily basis, why do we need to hear what you think Senator Obama thinks? The fact is that we don't need to hear what you think Senator Obamba thinks. All of that is pure conjecture on your part but it is a very convenient way for you to put your personal spin on things. For example, you minimize these issues by calling them a "petty knoll". Are those your words or Senator Obama's words? Those words certainly convey a stong opinion but whose opinion is it, yours or Senator Obama's? You have, after all, made a LOT of assertions in this diary about what you think Senator Obama thinks despite the fact that the title relflects that this diary is about FISA an NOT what you think that Senator Obama thinks.

    •  Really? What is it that makes you so "convinced" (0+ / 0-)

      I'm not the diarist, but I think the fact that Obama weighed the two issues in public means that he can tell them apart.  

      Just a hunch.

      Will "gooks" vote for John McCain? Will "c-nts" vote for John McCain?

      by Grand Moff Texan on Thu Jun 26, 2008 at 08:42:27 AM PDT

      [ Parent ]

      •  Really? What makes you so sure? (2+ / 0-)
        Recommended by:
        Grand Moff Texan, Mary2002

        Conjecture on your part. Let's look at what the man has said and not conjecture by you or by anyone else.

        •  I was assuming you had seen the quote (0+ / 0-)

          Here it is:  

          So I don't think the security threats have changed, I think the security threats are similar. My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people."

          See?  He can tell them apart.  Also, I figure that Obama has been paying attention to American politics for a few years.  Not knowing that this is a classic bait and switch would be like going into college football and being surprised by the zone read.  

          That would mark one as an idiot.

          Will "gooks" vote for John McCain? Will "c-nts" vote for John McCain?

          by Grand Moff Texan on Thu Jun 26, 2008 at 08:50:33 AM PDT

          [ Parent ]

          •  Nice, but irrelevant. (0+ / 0-)

            Maybe if you actually read what I wrote you would understand my point and be able to address what I said instead of addressing something that you pulled out of nowhere.

            How does this relate to what I wrote?

            •  Did you read what you were responding to? (0+ / 0-)

              In response to:  

              I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases.

              You wrote:  

              What is it that makes you so "convinced"? How is it that you are "SURE" that Obama recognizes that this bill is a classic political bait-and-switch?

              The fact that Obama actually weighed the issues right in front of us should have been a dead giveaway.  

              It is possible, even likely, that you wrote something else that I didn't respond to.  My excuse is that I couldn't get past the beginning of your reply, where you didn't seem to know what was being discussed.  

              You dismissed the diary as political propaganda, apparently because you didn't understand what was under discussion.

              Will "gooks" vote for John McCain? Will "c-nts" vote for John McCain?

              by Grand Moff Texan on Thu Jun 26, 2008 at 09:02:07 AM PDT

              [ Parent ]

              •  What was under discussion was the diary! (1+ / 0-)
                Recommended by:

                I didn't post a response to someone else's comments. I addressed the diarist directly in my very first sentence.

                I don't see a quote where Obama himself has said, "I recongnize this bill as a classic political bait-and-switch." Do you? That being the case, this idea is pure conjecture on the part of the diarist.

    •  I think the diarist is simply (2+ / 0-)
      Recommended by:
      NCrissieB, vixenflem

      trying to give us a true view of how FISA is not the main problem, but the USAPA.  And that, given Sen. Obama's resume, the Constitution is something he believes in very strongly.  It's something I've said for a while, that while many may not like his stance on FISA, it makes sense that he is choosing those very words you quoted.

      The bill has changed. So I don't think that security threats have changed. I think the security threats are similar. My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people.

      He is absolutely right, it's not the phone companies.  It's our government and how they dictate to the phone companies who to wiretap.  And then if you take the USAPA, the diarist has a very strong point.  Our phone companies can't just illegally wiretap anyone, unless they are directed to do by the government, which is why they get the immunity I guess, which also makes sense to me to be perfectly honest.  I don't see how it's any fault of the telecoms if Big Brother comes in says "you're going to wire tap so and so and here's our warrant".

      And personally, I don't think Sen. Obama should say what he plans to do with the USAPA at this point.  Let's face it, he's got enough issues to worry about, if he threw that he's going to challenge the Constitutionality of USAPA, he's going to have a whole lot more worries.

      In reading, the diarist is simply stating what many of have to practice with our kids daily:  Know your battles.  This is one that he's letting slide, because it's the USAPA that truly consigns our 4th Amendment to the lower depths of Hell.

      And why in the world, when someone posts a diary you don't like it's considered "political propaganda"?  Is this not a discussion board where free flow of ideas is allowed?  How's that pinching of other's peoples 1st Amendment working out for ya?

      •  Obama is a poker man, after all. (3+ / 0-)

        Strategy is his strong suit. So to speak.

        He will not fall on the sword of this one bill, given how little support he would be able to count on in the Senate to back him up, especially since, as the diary points out, it changes relatively little compared to other law problems we have right now.

        Obama is one guy, battling endemic corruption and decades of Constitutional tampering that seems obscure and irrelevant to most Americans. He is not going to put himself out there as "against security" in this situation, because he would have so little to gain and so much to lose.

        He is folding, and holding on to his chips till the next hand.

        Barack Obama is a noble-hearted patriot and humble Christian, and he has my full faith and support.

        by benheeha on Thu Jun 26, 2008 at 09:12:50 AM PDT

        [ Parent ]

      •  Not the point. (4+ / 0-)

        The diarist titled her diary, "A pragmatist's view on FISA". Despite that title, the diary launches into what the diarist thinks that Obama thinks AND she offers not evidence to support her conjecture.

        The entire diary appears to me to be a back door way of supporting Obama when he is under fire for changing his position on an important issue AFTER he had the nomination in the bag. THAT is bait and switch!

        In additon, the diarist seeks to minimize the importance of the current FISA bill and telecom immunity because there are even bigger issues. However, those are not the issues currently going to the floor for debate. We deal with the issues at hand. We win the war by fighting the individual battles and this is an important individual battle which is presenting itself to us now, in real time, not at some unspecified future date.

      •  You've got it backwards. (1+ / 0-)
        Recommended by:

        Consider that it's the telcos in collaboration with the intelligence community telling the government how to do things.

        If so, it's not that simple anymore, is it?

        "The spirit is to win in the heart of the enemy." -- Musashi, The Book of Five Rings

        by Cyberoid on Thu Jun 26, 2008 at 10:50:51 AM PDT

        [ Parent ]

    •  So no one is entitled to draw inferences? (1+ / 0-)
      Recommended by:
      joy sinha

      I drew inferences as to Obama's understanding and intentions based on what he's said, what he's done, and his education and background.  I'm sorry if he isn't here to speak to you personally, and of course you are free to draw whatever inferences you choose.  That's what free and open debate is about.

      •  There is no need to draw inferences! (2+ / 0-)
        Recommended by:
        migo, two roads

        Why do we need your "inferences" when Senator Obama is so capable of speaking for himself and does so on a daily basis?

        Why should I be interested in what you think he thinks when I can hear what he thinks from his own mouth. Furthermore, you don't offer any Obama quotes to support your conjecture. As an attorney did you rely on "inferences"? If not, then how is it that you feel you are free to do so in this instance?

        If we were talking about George Washington, who is long gone, there would be a compelling reason to use inference. In this case we are dealing with a man who is alive, well, running for president and making statements on a daily basis.

      •  Obama on USAPA renewal? (0+ / 0-)

        Apologies if I have my history confused, but didn't Obama vote to extend the Patriot Act, and then vote against cloture? doesn't that undercut your optimism for after the election?

  •  Telecoms violated even the low standard of FISA. (4+ / 0-)

    I am not up in arms over FISA because I expect it to defend my 4th Amendment rights.

    I am up in arms over FISA because it was violated, and the unlawful acts are being given uninvestigated amnesty by my party.

    Regardless of how you view the law, if you can't accept that those who violated it should be punished, then you truly don't even deserve the minimal protection it offers.

    They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. - Benjamin Franklin, Feb 17, 1755.

    by Wayward Son on Thu Jun 26, 2008 at 08:32:28 AM PDT

    •  Exactly (0+ / 0-)

      FISA was a joke to begin with. But at least it allowed for criminal prosecutions when it was violated.

      You got no fear of the underdog. That's why you will not survive. - Spoon

      by brainiacamor on Thu Jun 26, 2008 at 08:42:51 AM PDT

      [ Parent ]

      •  It still does. (0+ / 0-)

        This bill does not grant immunity in criminal prosecutions.

        •  Criminal prosecution can be amnestied by Bush. (0+ / 0-)

          The only avenue for redress that Bush could not offer a blanket reprieve was the civil court system.  This immunity removes that possibility.

          The possibility of criminal prosecution can be summarily removed with a stroke of Bush's pen.

          You think he won't do that?

          They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. - Benjamin Franklin, Feb 17, 1755.

          by Wayward Son on Thu Jun 26, 2008 at 10:44:34 AM PDT

          [ Parent ]

  •  It's always been true (3+ / 0-)
    Recommended by:
    migo, rolandzebub, Amor Y Risa

    What began as a search for communist inflitrators

    that first they come for the communists.  And the pragmatists do not complain for they are not communists.  So I am well aware that the rest of you here most explicitly do NOT have my back, except as a pragmatic place to store your knives.

    A nation of sheep will beget a government of wolves. ~Edward R. Murrow

    by ActivistGuy on Thu Jun 26, 2008 at 08:33:36 AM PDT

  •  thanks for the legal breakdown (1+ / 0-)
    Recommended by:

    I too think Obama realizes that this bill is not worth the fight. But perhaps he could speak to how he intends to protect what liberties remain and how he intends to reinstate the legal protection our Consitution affords us.. I just signed up to be a volunteer for his campaign and I have faith in him to do what is right for the country and the people.

  •  Finally, someone calls it like it is! (3+ / 0-)


    I've been saying the same thing over and over.  Killing the USAPA and re-writing FISA is the only solution.

    A question for your legal mind to mull over.  Is the "immunity" clause also a red herring (or what some may call a steaming load of bullshit)?

    While I am against immunity for the most part, the telecoms deserve the retroactive immunity in this particular situation.  They cooperated with the government, through the executive demands of the President and his cabinet, and working under the belief that they were abiding by the law as dictated to them by the highest office in the land.  Since this whole FISA debate has been about the 4th amendment rights, couldn't the immunity issue be considered a 5th amendment right issue?  Shouldn't the telecoms be protected from what is considered self-incrimination by admitting that they fully cooperated with what they perceived as a legal demand through the executive order?  Do they not deserve the protection from this admission of cooperation, which is in essence self-incrimination?

  •  I agree with most of what you say, but (2+ / 0-)
    Recommended by:
    LeftOverAmerica, Mary2002

    my outrage is not for the loss of the Fourth Amendment, that's been dead for years, as you make clear. This particular outrage is directed at the magical spell that makes something that was illegal when it was committed legal after the fact. Why have any laws at all? The government can just declare it to be legal later.

    And when you say, "I'm convinced that Barack Obama recognizes this." I can only ask you, why? What evidence do you have for that, other than your gut?

    "Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies." -- Groucho Marx

    by rolandzebub on Thu Jun 26, 2008 at 08:52:54 AM PDT

  •  If this is Barack reasoning, then HE needs to say (3+ / 0-)
    Recommended by:
    migo, two roads, sweeper


    But he didn't say any of this, he said this was about keeping American safe, i.e. he gleefully participated in the "political bait and switch" you're talking about.

    Sorry I don't, buy it.  Oh, I don't dispute your legal reasoning, that was well thought out and very informative.  What I don't buy is the idea that Barack Obama, even with 60 Democratic Senators, will do a damn thing about the situation.  When he stepped in front of the cameras and started repeating Republican lies about a bad piece of legislation he proved that he wasn't willing to fight for the truth, much less our rights.  Thus there is no reason to believe that he will have the courage to disassemble the PATRIOT act once in office.  In deed there is no reason to believe he is even interested in the effort, after all:

    Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay.

    Surely, as he supports this "compromise" he must believe that the PATRIOT Act is also

    an important tool in the fight against terrorism

    You need to wake up and realize that your candidate just proved that he doesn't give a damn about your rights.

    This country does not have the luxury to entertain idiocy as if it is reasonable. --Digby

    by Thought Crime on Thu Jun 26, 2008 at 08:54:13 AM PDT

  •  We need the criminal prosecutions more (2+ / 0-)
    Recommended by:
    mikolo, NCrissieB

    than civil lawsuits.  Sorry, but the average class action suit (I've unwittingly found myself in a number of them because I bought something!) earns you 25 dollars or a coupon to buy more of the same.

    What we need is what Barack promised, and what is allowed under the new FISA bill: criminal prosecutions of wrong-doers.

    I think you'd hear the puckering from corporate boards all over America if Obama's Justice Department starting investigating violations of our civil liberties.

    And that would do a lot more for me than $25 dollars or a coupon from AT&T for some free long distance.

    "It's what you think you know that just ain't so that will get you into trouble." --Will Rogers

    by winterbanyan on Thu Jun 26, 2008 at 09:06:16 AM PDT

  •  Kudos (2+ / 0-)
    Recommended by:
    Babsnc, NCrissieB

    Just want to say, excellent post.  this is the kind of intelligent and knowledgable reasoning that I am very happy to see, and wish we had an indication that Obama saw this and was thinking about ways to correct the real problem.  Thank you for a great diary!

  •  I respectfully disagree (7+ / 0-)

    This isn't just about the surveillance. It's not even about the telecoms getting immunity, per se. It's a rule-of-law issue more than a privacy one.

    The President broke the law. We can't directly pursue legal action on this because we can't prove standing. The telcom issue is a means towards establishing this. The bill doesn't just effectively pardon the telcoms, it effectively pardons Bush.

  •  Thanks for a practical perspective! (1+ / 0-)
    Recommended by:

    Thank God for the lawyers. (sometimes)

    This is a good article that will put things in perspective for folks like me that got their panties in a bunch over Obama’s participation in the FISA vote. Thank God I’m not running the country, I’m more of a cowboy than I’d like to admit.

    PRAGMATISM was never my strong suit. That said, idealists have a voice in America and without them, some of these issues would never be heard.

  •  Would Obama abuse FISA just as Bush did? (2+ / 0-)
    Recommended by:
    migo, Mary2002

    His support for this legislation, suggests that when Obama is elected president, he will want to consider himself kind, just like Dubya does.  Above the law.

    Vote John Edwards and break the corporate media stranglehold on American politics.

    by Subversive on Thu Jun 26, 2008 at 09:13:58 AM PDT

  •  The kind of post that makes dKos a treasure (3+ / 0-)
    Recommended by:
    sockpuppet, NCrissieB, your neighbor

    Hats off to the diarist for demonstrating actual knowledge of the issues, the mechanisms of law, and the real culprit in the erosion of constitutionsl democracy. Thank you!!!

    The Moe Sizlak Experience, featuring Homer Simpson.

    by lepermessiah on Thu Jun 26, 2008 at 09:17:08 AM PDT

  •  Scalia just handed us victory on Fisa (2+ / 0-)
    Recommended by:
    migo, Mary2002

    Writing in DC V Heller, he says:

    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through Skokie.

    Nice speech there paisan!  He goes on to illustrate this with the First and therefore the Second – no ‘interest balancing’ allowed by judges. He carefully leaves out the Fourth Amendment.

    If no ‘interest balancing’ is allowed in a specifically enumerated right, such as the Fourth Amendment (which Scalia himself refers to in the beginning as one of the three specific rights of the people) then surely the newly minted FISA law is unconstitutional!  That law allows the FISA court to ‘balance the interest of terror fighting’ against the Fourth while granting a warrantless wiretap.

    I would love to watch Scalia twist himself into a pretzel arguing that 'interest balancing' only applies to the first and second, but not the fourth.

  •  Yeah but... (0+ / 0-)

    Thanks for an expert's view of FISA, NCrissieB.  It's great to have someone knowledgeable talking about the issue.

    However, my concern was not with FISA in itself.  I knew that was a foregone conclusion - no politician is debating the merits of FISA.  My concern was the immunity for telecoms.  That sets a completely different precedent, totally outside of FISA.  Congress found that companies had broken the law based on orders from the President, then changed the law so that the acts were no longer illegal.  That doesn't sound like the act of the country I grew up in.

  •  Still not buying this crap (2+ / 0-)
    Recommended by:
    migo, two roads

    ... but the sales presentation on the faulty product is much slicker than the other wreck list diary I had to tear apart last night.

    There is a leak in the levee.
    Don't put sandbags on the hole, because,...
    It's more important that we build a bigger and stronger levee someday.
    If you ignore that we now want to give a free pass to the builders of the defective levee, we could elect this guy President.
    LOOKIE, over here, there's a BIGGER LEVEE that might have a big hole in it ! We need to focus on that, instead !

    Nice try.  No Sale. Do any Democrats and liberal progressives actually post on this site anymore, or has it become just another wing of the GOP ?

    •  You da man, Doolittle! n/t (0+ / 0-)
    •  "Pragmatic" means "what WORKS. (0+ / 0-)

      Or, in other words, don't let the "perfect be the enemy of the good."

      This is clearly a very complex issue - especially with regard to the best way to fix it. Can we agree that people of good will can disagree about the best strategy here? Many "Democrats and real progressives" see a lot of potential in our nominee for starting to clean up the mess from the "W" years. He also has extensive education in this very area of expertise and a demonstrated talent for strategic thinking. IMHO attacking him is counterproductive in the extreme.

      "The eyes of the future are looking back at us and they are praying for us to see beyond our own time." - Terry Tempest Williams

      by your neighbor on Thu Jun 26, 2008 at 11:39:45 AM PDT

      [ Parent ]

      •  OMG! The "complex issue" saw! (0+ / 0-)

        The issue is not complex. Obama took one position, until he had the nomination in the bag, and then reversed his positon. That's real simple. Now I don't take the man at his word and I don't trust him. He got my vote in the primary under false pretenses.

  •  So Why Vote for It? (7+ / 0-)

    You are presenting a false choice.

    I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases.  I'm sure Barack Obama realizes that this petty knoll is not "the hill to die on."

    Even if this version of FISA is drawing heat for its telco amnesty, but that's not its biggest problem, then why not vote against it? Voting against it isn't "dying on the hill", but is extremely popular with Americans who know about it (which is most Americans with a pulse, now), and is not lethal in any way. Unless you mean that it will piss off telcos, but who surrendered the government to them? Not me - are you arguing for that surrender?

    Your argument says that voting down this FISA revision is necessary but not sufficient. It doesn't work as an argument to accept it, but rather to oppose it and to go even further in the same direction, to the heart of the matter.

    The FISA itself is a violation of the 4th Amendment every time. Violating the FISA "exceptions", ignoring it in favor of unlimited spying even more often, is even worse. How can voting in favor of weakening a weak safeguard that's largely ignored possibly strengthen anything? How can you argue to defend Obama doing exactly that?

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Thu Jun 26, 2008 at 09:25:19 AM PDT

  •  Not even al-Qaeda phone list (1+ / 0-)
    Recommended by:

    I agree with everything the poster said about the crumbling of the wall as a huge element of the problem, but it is even worse than that under the new Democratic Party Surveillance Act.

    Now it's not so much your name showing up on the call list of someone the FBI thinks may be involved with al-Qaeda, it is your involvement in any kinds of foreign or international communication that opens the door.

    And not only did the wall come down, but under pre-Patriot Act approaches, the primary reason for surveillance had to be a intelligence related reason.  Now, the law has been revised to specifically say that the PRIMARY reason for the FISA surveillance can be for criminal prosecution purposes, so that the FISA warrant can be used in cases where there is no probable cause to get a criminal wiretap warrant, as long as someone can make up some convoluted dreamy possibility of an intel reason for tapping in.

    To take it all beyond even the issue of the wall, though, is the issue of a secret court and in particular the new version of the secret court, which will have no powers to do anything disciplinary or oversight related to the any of the many warrants that just about everyone and his brother in any agency that conceivably has any intel functions can issue.  

    IOW, the biggest issue is that it is a misnomer to call the FISA Court a court at all.  There is no two party advocacy and there is no power in the court to take disciplinary actions or exercise oversight and what little may have been there is now gone.

    We have a big secret administrative board that is titular, not functioning.

  •  I just love that... (0+ / 0-)

    people are skewering Obama for this.  I love that people are willing to undermine our candidate before he even has a chance to get in office when he and the Democrats can really address these things.  I don't know if people have forgotten, but W is still president and he can still make it difficult to get anything accomplished.

    Yes, FISA is important.  But so is getting better justices on the Supreme Court, ending the Iraq War and providing economic's certainly not worth risking all of that over one issue(albeit a very important one) before our candidate even has any actual power beyond his responsibilities and duties as a Senator.

    •  I just love that (2+ / 0-)
      Recommended by:
      LeftOverAmerica, anim8sit

      Obama is skewering we the people for this.  I love that Obama is willing to undermine our constitution before he even gets in office (and to abandon the oath of his current office) when he and the Democrats control the calendar and the issue in toto and could have prevented this legislation with ease.   I don't know if people have forgotte, but W is still president because the members of Congress like Obama have no sense of duty and they prefer to use W as an excuse for not getting anything accomplished than to be responsible.


    •  Wait a cotton pickin minute! (4+ / 0-)

      Obama led us down the primrose path and then, AFTER he bagged the nomination, CHANGED HIS STATED POSITION!

      That is bait and switch pure and simpe AND it is on an issue on constitutional importance!

      Now, do you REALLY think that I want someone who will do THAT sort of thing in the White House? Do you REALLY think that I am willing to ignore his actions and ASSUME that if he gets in the White House that THEN he is going to do the right things? What reason is there to believe that? His actions in present time say otherwise!

      No! I am NOT going to let him into the White House if he does a bait and switch on an important constitutional issue before he is even elected!

    •  Obama is undermining himself on this issue (2+ / 0-)
      Recommended by:
      migo, LeftOverAmerica

      He gains nothing by capitulating and pisses off people that would like to help him if he were only willing to demonstrate a minimum of backbone and trustworthiness.

      8/29 changed everything Your political compass Economic Left/Right: -6.13 Social Libertarian/Authoritarian: -8.10

      by wsexson on Thu Jun 26, 2008 at 10:52:03 AM PDT

      [ Parent ]

      •  yeah, you're right (0+ / 0-)

        We should have nominated someone like you or one of the other "oh-so-pure" crowd.

        You've convinced me...we'd be much better off keeping Republicans in the White House...clearly...

        I mean, how dare Obama disagree with the netroots on a single issue...where's his suicidal Naderite piety?  Honestly...

        We should all just vote on this one issue; just this one because nothing else matters.  Then we can sound like the lunatic winger abortion nuts...

        Undermine Obama, help McCain and then we can have a Supreme Court with even more conservative justices and you won't have to worry about your precious little rights at all.

        •  Excuuuuuuse me! (1+ / 0-)
          Recommended by:

          You are STILL flatly refusing to address what the man has done. AFTER he became the presumptive nominee he THEN changed his stated position. I supported the "original" Obama and I voted for him in my primary. After I did that, Obama "redefined" himself in terms that I do not like and do not support. That is deceptive and Senator Obama needs to get his mind right as regards which Obama it is that people have supported!

    •  I will tell you why (1+ / 0-)
      Recommended by:

      Centralized and globally present spy powers being used on the American people could be used to actually intercede on their activities.  It could even be used to influence elections by understanding where gatherings are being held, eavesdropping on election strategies etc.  

      This is mostly why I'm concerned.  A lot of us are mad because giving in on this actually (in my opinion) makes it harder to win the election and its hard to get that through people's heads.

      Assassin: Its worse than you know. Malcolm: It usually is. 宁静

      by TalkieToaster on Thu Jun 26, 2008 at 11:00:27 AM PDT

      [ Parent ]

  •  So Congress is then (0+ / 0-)

    covering it's ass on the Patriot Act? I remember Fiengold as being the only Senator to object to it. Why did congress not let it sunset in 06?  By this time the Bushies where losing support and there was no need to  reauthorize it. Why is Obamas stance pragmatic even if it is not the core of the problem? The Democrats seem to have as much disregard for the Constitution and the law as the Republicans. All other issues pale and are affected by the rule of law.

    The 4th amendment may be long gone but for a candidate to play along with the stripping of our systems checks and balances while he's running on a platform of restoring this broken government and talking about being 'bamboozled by fear' is not pragmatic, it's just the same bs. The most troubling part of his statement to me was the "I'll monitor the situation" this seem to be blatantly a further empowering of the unitary presidency or the inherent rights theory. The Law is King as a famous man said. When it's gone who will 'protect' us from the real criminals the ones who run the country?  

    "And if my thought-dreams could be seen They'd probably put my head in a guillotine" Bob Dylan

    by shaharazade on Thu Jun 26, 2008 at 09:32:21 AM PDT

  •  I disagree that the Patriot Act gutted the 4th (2+ / 0-)
    Recommended by:
    Fractalfunction, mrchumchum


    It still required that a probable cause warrant be issued for wiretapping to occur, either proactively or retroactively.

    The new FISA bill allows the Government to randomly wiretap millions of Americans without probable cause, and only pursue a warrant against those few people who they want to continue eavesdropping on.  It allows the creation of an enormous database, filled with personal conversations of regular, honest, non-suspicious Americans.

    That's the key distinction.

    •  Clarification (3+ / 0-)
      Recommended by:
      migo, mrchumchum, Perfektion

      The new FISA bill allows the Government to randomly wiretap millions of Americans without probable cause, and only pursue a warrant against those few people who they want to continue eavesdropping on.

      Correction: Only people they want to ADMIT they are continuing to wiretap. And even then, only if they are taking a government mandated action. And the only oversight is...themselves. Nothing prevents them from using bucket warrants to wiretap political opponents and pass that info on, and then never say anything. It's basically giving a blanket go ahead to the same behavior that got Nixon impeached.

      Condemnant qui non intelligent.
      Economic: -6.75
      Social : -5.03

      by cognizant on Thu Jun 26, 2008 at 10:57:16 AM PDT

      [ Parent ]

  •  Your assumption sounds like bait and switch (4+ / 0-)
    Recommended by:
    migo, pico, lightfoot, anim8sit

    in this way: your encouraging people to give up this battle on FISA with the unsubstantiated belief that Obama is ontop of your argument on civil liberties. I've seen no evidence of that.

    I'm convinced that Barack Obama recognizes this.  I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases.  I'm sure Barack Obama realizes that this petty knoll is not "the hill to die on."

  •  Question (1+ / 0-)
    Recommended by:

    I can appreciate the argument that evidence gathered with a FISA warrant should be usable in a criminal prosecution IF the criminal prosecution is connected to the reason for the FISA warrant in the first place (i.e., criminally prosecuting someone for engaging in terrorist related activities).

    But is it really the case that the breakdown of the wall of separation instituted by the Patriot Act is as blanket as you suggest? Can a FISA warrant be used to gather evidence for ANY criminal activity even if it has nothing to do with the original reason for the warrant?

    And, if that is the case, how hard would it be to change the law to say that the FISA warrant can be used in criminal cases only if the case has something to do with the original reason for the warrant? That would seem to cover the example given about a drug bust.

    Of course, this would raise the question of what investigators should do if, in the process of executing a FISA wiretap, overhear evidence of a really serious criminal act that has nothing to do with the original warrant (such as, for example, child rape).

  •  Thank you for an excellent diary (2+ / 0-)
    Recommended by:
    Ignacio Magaloni, Parhelion14
    and analysis. These are things every American should know. What the controversy over FISA has done is alert Americans to the loss of their rights. But you are absolutely correct to point out that it is not the be-all and end-all of this struggle. The recission of the Patriot Act should be the number one priority of the new administration, besides disengagement from Iraq.

    War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

    by Valtin on Thu Jun 26, 2008 at 09:45:35 AM PDT

    •  I think this diary does a service (0+ / 0-)

      to this important discussion, even though I disagree with its political premise--recommended.  

      Habeas Corpus:See Hamilton quoting Blackstone in The Federalist Papers, number 84.

      by Ignacio Magaloni on Thu Jun 26, 2008 at 10:23:53 AM PDT

      [ Parent ]

    •  Not the be all and end all BUT... (0+ / 0-) is the battle which is in front of us at the moment. We can only deal with what's happening in real time. We can't fight battles which have not yet arrived. This is the battle at hand and so it is the battle that we should fight with the greatest vigor. Win the battles, win the war!

  •  Thank you for perspective! (1+ / 0-)
    Recommended by:
  •  Well done, tipped and rec'd. (1+ / 0-)
    Recommended by:

    I even updated my siggy in your honor.

    Democrats don't lose presidential elections: we SELF DESTRUCT. Will 2008 be different?

    by eclecticbrotha on Thu Jun 26, 2008 at 09:53:19 AM PDT

  •  Thanks for the details. (1+ / 0-)
    Recommended by:

    I feel that - if your analysis of these two pieces of legislation (USAPA and the current FISA bill) is correct - I have a an understanding of these items which is more clear than it had been.

    One thing about the current FISA bill which I cannot tolerate is the retroactive immunity provision.  It is illegal to provide such immunity after the fact.

    For this reason I will continue to oppose the current FISA legislation in its entirety.

    Constitutionally Yours,
    Celtic Merlin

    Bush & McCain - as inseparable as Shit & Stink.

    by Celtic Merlin on Thu Jun 26, 2008 at 09:54:04 AM PDT

  •  For 28 yrs, every 3 mos a 'pragmatist' explains (2+ / 0-)
    Recommended by:
    AmericanRiverCanyon, LaFajita

    yet another

    'fuck it, we're losing anyway, this isn't the BIG ONE'

    give-a-way sell out to Exxon or Halliburton or ATT or Alito or LTV or the Savings and Loans or Ollie North ...

    I'm NOT seeing much new outta barack, other than new excuses for the same ol shit - fascists kicking our asses big time, or, fascists nickle and diming us to death.


    Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous

    by seabos84 on Thu Jun 26, 2008 at 09:56:49 AM PDT

  •  A disappointing apologia. (8+ / 0-)

    The FISA discussion here is somewhat sophistic and in my opinion, naive.

    I wrote California's Telephone Privacy Act, which is the basis of the ACLU suit in California.  It's my opinion based on the facts already revealed that AT&T and Verizon broke the written law and violated California's Constitution, which has a privacy clause, when they did so.  No need for elaborate interpretation.  FISA should not protect criminal acts carried out in the knowledge that they are criminal.

    The issue here is not FISA's intricacies nor is is Bush v. Obama or McCain v. Obama.  Those are red herrings.  The issue is whether telecom providers in collaboration with the intelligence community can set national and international telecom and information policy.  Apparently, they can.

    Even a cursory examination of AT&T nee SBC nee Southwestern Bell, headquartered in Texas and part of that state's reactionary Republican cabal (formerly including Enron and a guy named "Bush"), may reveal on discovery -- which we now will not achieve -- the telcos' key role in advocating and implementing this type of eavesdropping.  After all, it's not only good politics for the telcos to cozy up to the intelligence community -- which knows all and basically runs our government -- but snooping, commercial as well as governmental, is proving a very profitable new line of business.

    If "experienced lawyers" want to nibble at the details, more power to them.  So focused, they are missing the Big Picture: that via technology, we are giving up democracy.  We can do without such sage misdirection.

    About Obama:  what a shame.  He seemed like such a nice guy, in command of his and our futures.  Now we see the strings.