I got this email this morning, so I thought I'd extent the offer to those of you not on ACLU's mailing list.

This diary contains, as an Appendix, the detailed timeline for my diary, "Looking back at FISA's year in the House." These two diaries are my attempt to document and deconstruct the political theater we've witnessed from the House of Representatives, and specifically its Democratic leadership, in amending FISA this past year - from the passage of the Protect America Act (PAA) in August 2007 through the passage of the so-called "compromise" FISA Amendments Act in June 2008.  Analysis, conclusions and a proposal are included in the previous diary.

Acknowledgments: As with the previous diary, I owe many thanks to all my fellow commenters at FireDogLake, especially pow wow and Hugh, for their excellent analyses, discussions and frequent corrections during the past year.

There have been a lot of incidents of appallingly bad journalism over the past eight years: those relentlessly focused on trivialities, stories inventing fake scandals out of whole cloth, the ones amplifying Bush lies and cheerleading for war.  Yet for some reason, this story by Dan Eggen and Paul Kane in Sunday's Washington Post strikes me as the most unbelievable, factually incorrect and just plain stupidest article of the Bush era.

Headline:

Recent Political Wins Smell of Compromise

Lately, President Employs a Little-Used Tool

I don't know if you're aware of it, but getting full immunity for lawbreaking, expanded unchecked surveillance powers, and no-strings funding for endless war in Iraq is the result of compromise!

Looking at my past postings on Daily Kos there are far too many times when I have ridden the wave of emotion to intellectual oblivion. This was no different when it came to Obama's FISA vote. Some time has passed and the musings of rational thought have managed to creep back into my head. I was advocating "cutting the funds" to the Obama campaign and even the notion of writing a candidate in come November. It is obvious these are grave mistakes if too many people were to go this route. While Obama's FISA vote is inexcusable at best, like myself, he is far from a perfect man. It only took seconds for me to think of a McCain victory to realize the true tragedy this nation faces should the so-called "straight talk" express be parked at the White House on inauguration day.

The first hand George W. Bush shook was Sen. Jay Rockefeller's at the signing ceremony yesterday.

Consider this Part II to my diary on the "why" being revealed by Sen. Feingold.  

So, now, it is up to us to get Sen. Feingold to tell us, the American public, exactly what is going on.  Remember, even IF you don't want to call Sen. Feingold, you CAN call YOUR Senator/Representative and make the same plea.

So, follow me on...

This diary is my attempt to document and deconstruct the political theater we've witnessed from the House of Representatives, and specifically its Democratic leadership, in amending FISA this past year - from the passage of the Protect America Act (PAA) in August 2007 through the passage of the so-called "compromise" FISA Amendments Act in June 2008.

Not only has the Democratic House leadership worked to pass bills that undermine our constitutional rights and prevent accountability for the Bush Administration's illegal acts - in effect endorsing Nixon's view that if the President says it's legal that makes it so - they have explicitly rejected the principles of open, honest and responsive government in order to do it.

Part I is the timeline.

In Part II is the analysis: How did we get such bad legislation from a Democratically controlled Congress?

Finally, in Part III, are my conclusions and a proposal.

Acknowledgments: Many thanks to all my fellow commenters at FireDogLake, especially pow wow and Hugh, for their excellent analyses, discussions and frequent corrections during the past year.

The Democratic House and Democratic Senate just said it is perfectly reasonable for the most unpopular president in the history of the United States to tell corporations to violate the Constitution on his order alone.  The Democratic House and Democratic Senate just caved in to Mr. 23% Approval Rating to create an ex post facto immunity for lawbreaking on his authority alone.

And the Democratic nominee for president thought that would be a nice power to have once he's in office.  The Democratic nominee for president just told us that should he feel it necessary, he can order the private sector to spy on us illegally without any repercussions or accountability.

All because of political convenience.  All because they feared the "Barack Obama voted to enrich trial lawyers and help Osama bin Laden" attack ad.  All because they were afraid the Republicans would call them names.

Here are some ways Obama could have won big, politically, on the warrantless wiretapping law.  (Which, for those who don't know, allows the NSA to spy on anyone, any time, with no real court oversight.  See http://www.aclu.org/... if you don't want to read the entire bill.)

(1) Explained, straight up, months ago, that he didn't give a damn about spying, didn't think the Fourth amendment applied to email or phone calls, and was OK with the executive branch spying on anyone any time, and that he would draw the line on something else (torture, habeas corpus, etc.).  That way he wouldn't have disappointed any of us later: we would have known what we were getting.  And he would have looked honest and principled, if not right.

More under the jump.

America, United States of
(b.July 4, 1776, d. July 9th, 2008)

An historic moment came today when the world's oldest democracy, it's greatest and youngest nation quietly passed away in her sleep.

Salon has a fascinating and disturbing story today from Jon Eisenberg, one of the Al Haramain lawyers:

On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.

The story of how Al-Haramain's lawyers negotiated the journey thus far to Judge Walker's ruling -- a team of seven lawyers that includes me -- sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.

Call me Alice -- because this is a tale directly from Government Secrecy Wonderland, the bizarre and unnerving adventures of suing President Bush for apparently violating a federal law. I'll swear under penalty of perjury that what follows is true and correct. Otherwise, you might not even believe it.

Read it instead of watching the Senate in essence provide a pardon to Bush for this felony. Which is happening on the Senate floor now, first with the procedural cloture vote, and then with final passage.

Update I: Cloture invoked, 72-26.

Update II: The FISA Amendments Act passes, 69-28.

It's the final FISA fight of this Congress.

The Senate just rejected Dodd's amendment to strip Title II--the immunity provisions--from the bill, 32-66. Now up is Sen. Specter's amendment that requires the cases be dismissed if the court determines that the warrantless wiretapping programming was legal.

Update I: Specter amendment fails, 37-61. Next up is Bingaman's amendment, the last hope that the Senate regains it's sanity. Given how the votes are going, I'm not holding my breath.

Update II: Bingaman fails 42-56. The Senate is in recess until 2:15, so that the Republicans can go have their weekly lunch and toast the capitulating Dems in celebration. Then they'll come back and finish it off.

The roll call vote on the Dodd amendment is now available, with a link and list of the good guys below the fold.

For the scope of the damage that our Congress is about to do, consider this by Jonathan Turley.

The votes start in a few minutes. This should be the order of votes.

• Dodd Amendment #5064 (strike immunity)
• Specter Amendment #5059 (allows broader court review) (60-vote threshold)
• Bingaman Amendment #5066 (delays immunity until completion of IG report) (60-vote threshold)
• Motion to Invoke Cloture on H.R. 6304
• Passage of H.R. 6304, the FISA amendments act of 2008.

These are the people with perhaps the most important voices of all on the issue. They put their professional lives and reputations on the line, one more than thirty years ago, two during this administration. They were and are in a position unique in this debate--they saw up close what the government is capable of doing in secret and against the will of the Congress and the people.

Perhaps the most famous whistleblower of all, former intelligence officer Daniel Ellsberg, the whistleblower who in the early 1970s released the Pentagon Papers, has come out strongly against this FISA bill. He spoke with Tim Ferris of BoingBoing Gadgets about this legislation, the danger it poses, and what we should do about it.

On Tuesday [ed. note, the votes will be Wednesday], a bill will come up that changes, basically really rips apart without admitting it, the Foreign Intelligence Surveillance Act, by expanding the president's ability to overhear, without a warrant, without any judgment outside the executive branch being exercised, American citizens in the United State, thus gutting the Fourth Amendment, essentially. And also granting retroactive immunity to the telephone companies who obeyed the illegal presidential request to carry on an illegal program these last seven years....

Now the real importance of that last point, which is clearly unconstitutional and which many people, Senator Dodd and Senator Feingold and over the last year, until fairly recently Senator Barack Obama had promised to filibuster any bill that gave that immunity. And the reason for that was not a desire to punish anybody, actually, but because the civil suit possibility for people whose rights had been violated by this illegal overhearing gave the only real chance of finding out what it was that  NSA was hearing, and the FBI or CIA or whoever else was involved. Congress doesn't yet know that. In fact, if they vote for that immunity, they'll be voting immunity for acts they really don't even know what their giving. Like President Ford's pardon of former President Nixon after he resigned which was for any crimes he may have committed which Ford, in the absence of a prosecution of Nixon, didn't really know what he was pardoning.

So the same would be true here, meaning we would be giving away the only chance we have of discovering how much the government is spying on us illegally and finding out about law-abiding citizens. The people who leaked that I think did it because they knew what was happening and they felt it was wrong, it shouldn't be happening. They haven't told us yet, they haven't risked their jobs to that extent, to tell us either who exactly has been order, how many, for what purposes, and what exactly they've been overhearing and what use is made of it....

This information would enable the government to intimidate or blackmail or manipulate every member of congress, every official who might be tempted to reveal criminality, people like the ones in the NSA who knew that criminal action was--and is--going on. This law is intended to legalize it, basically, and to continue the cover up, conceal it.

You can't have a democracy with the state--the executive branch--having that kind of information, total information about every communication, every credit card, every transaction, every fax, e-mail, telephone conversation of everyone. And as far as we know, that's what's being collected now. We do need to know whether that's yet true or not, but I think it's a pretty good assumption.... You can't keep a republic, a constitutional republic with that degree of knowledge by the president, by the executive branch of all of our private affairs. You can't have it. You have something else, you have you can call it an autocracy, a dictatorship. It's the basis for tyranny, and that's what the Constitution was meant to prevent and that's what this bill would confer--unlimited power....

I have to say that no senator, Republican or Democrat, should be voting for this Senate bill. Not one. Everyone who does so is in fact, I would say, violating his or her oath to defend the Constitution. But they can do better than that.

Ellsberg, one of the more than 21,500 members of the myBarackObama group that has urged the Senator to oppose this bill, is pushing for us to do the same, to call our Senators.

Two of the Bush-era whistleblowers join in his call. Mark Klein, the retired AT&T engineer who stepped forward with the technical documents at the heart of the anti-wiretapping case against AT&T, and Babak Pasdar, who leaked information that a major telecommunications carrier provided the government with access to its entire mobile network, weigh in today.

President Bush, despite receiving all the changes he demanded, proceeded that very same month to begin eavesdropping on Americans in violation of the retooled and updated FISA law. Once caught, he tried to excuse his conduct by claiming that FISA was somehow inadequate, and he has been aggressively pushing for amnesty for the phone companies who were co-conspirators in his illegal program. This newest proposed change to FISA will provide telecom amnesty, which will ultimately protect not only the phone companies, but the president himself, by dismissing the lawsuits against the companies.

We can testify firsthand to the blatant violations, because we were the whistle blowers who exposed the egregious wrongdoing that has occurred. Our disclosures included how AT&T cooperated with the NSA to install monitoring hardware to spy on the entire Internet, and how a major telecommunications carrier allowed for federal government access to its entire mobile network - without security controls or record keeping. These security breaches represented an unprecedented expansion of government surveillance of the population....

The Senate is set to give the final approval for amnesty and expanded spying tomorrow, so this is the last chance to turn it back. We urge that amnesty be denied. What information did the telecoms share with the administration? How was this information shared? Is it continuing today? We need answers to these questions.

To this day, the American people do not know the full extent of the telecom actions in warrantless wiretapping, and if amnesty passes, we may never know. Allowing this administration and these corporations to get away with this illegal and unconstitutional behavior sets the worst type of precedent for future American generations.

They will pass this terrible legislation, but not it cannot happen with our complicity. We'll lose, but we'll lose by putting them all on notice that we expect them to use a greater majority in Congress next year, and a Democratic presidency, to repeal this travesty and to finally reveal all that information they are working so hard now to cover up. The vote might be over tomorrow, but this issue will not go away.

Call your Senators and remind them that we'll be watching and that we'll remember. Additionally, call the 29 Senators who voted against the Senate bill the last time it came up--along with Obama and Clinton who did not vote--and tell them to vote for the Bingaman amendment, but if it does not pass to vote against final passage.

These are the 30 Senators and the potential president who can hold firm now and lead the charge to fix this next year. Holding them to their previous vote now is critical to making those improvements in the next Congress. The list is below the fold.

Jay Rockefeller, on the Senate floor, speaking in opposition to the Bingaman amendment:

Mr. President, Senator Bingaman, who I greatly respect in all ways, has offered an amendment altering the liability protections of Title II. That's it. His amendment would postpone the implementation of the liability protections until after 90 days [after] the submission of the final report of the Inspectors General required under Title II. Now, I appreciate the Senator's desire to have more information out there, but I want the Senate as a whole to contemplate what we're asking here. We're talking about a year for the Inspectors General to complete their report. Well, you know, does it really work that way? Is it really a flat year? Are we going to send out federal marshals to have them all do their reports on the exact day? It'll probably stretch a little bit. Maybe it won't, maybe it will. But you can't assume it won't. And you've got to add on 90 days. And then you could get to the question of the immunity.

Uh, hey, good question, Senator! What will the Congress do if the Inspectors General don't complete their report on time? Or complete it at all? Or even start it?

Send out federal marshals? Ha ha! Yeah! Ha... oh, wait. That's actually a serious problem. What if the Inspectors General don't do the report?

Seriously. What if they just don't?

Why would they? What are you gonna do? Cut their budget so they will have even less chance of doing it? Pass a law saying the law saying they have to do the report is "exclusive?" Subpoena them? Hold them in contempt? Impeach the president?

So Rockefeller opposes the Bingaman amendment because the Congress has no way to make sure the IGs will finish on time, or finish at all.

What a damn moron.

How do all the people who feel certain the bill ensures "accountability" like that one?

You're going to hear a lot today about how much the FISA Amendments Act have been improved from the last iteration coming from the Senate. That will be the cover for those who vote for this bill, even with Title II--the immunity provision--included.

But, about those "improvements," here's Kit Bond:

We believe that this new bill that we're considering, H.R. 6304, which passed the house with a strong majority vote of 293-129 last friday, should be passed here. As with the senate's original FISA bill passed several months ago, the compromise that is before us required a little give-and-take from all sides. But in essence what we have before us today is basically the Senate bill all over again.

I am aware of those that some on the far left want to paint this as some radical new legislation. But if you read the language, it's not different. the press picked up on this trait last week and kept asking me to help them find the purported big changes that no one could find. There really is not much that is significantly different, save some cosmetic fixes that were requested by the majority party in the house.

There's a potential fix to this bill, Bingaman's amendment that would delay the immunity until an IG's report is completed. That's the amendment that Mike and Mike say is poison pill that will result in a Bush veto. Because this amendment is subjected to a 60 vote rule, the chance that it will be passed is slim.

Thus, the final bill that Senate votes on tomorrow will probably be "basically the Senate bill all over again." The 29 Senators who voted against that Senate bill that has only received "cosmetic" fixes should vote against it again, and be joined by their colleagues Clinton and Obama, who didn't vote on it, in voting "no" on the final bill if that Bingaman amendment doesn't pass.

Does anyone really want a President McCain to have the expanded surveillance powers this bill confers? Or even a President Obama? Do these Democrats want to be responsible for dramatically weakening both their and the courts' power vis-a-vis the executive? That's what they're about to do.

Call them and tell them to vote for the Bingaman amendment and vote against final passage of the bill if Bingaman doesn't pass.

DNI McConnell and AG Mukasey have penned yet another missive to Harry Reid, this time to warn him that the most promising of amendments to be considered to the FISA Amendments Act, Bingaman's provision that would delay immunity until after an IG report, is utterly unacceptable. There's a surprise.

Emptywheel at FDL covers the salient points:

And I gotta say--the fact that DNI Mike McConnell and AG Michael Mukasey claim they'd advise Bush to veto the bill if it included Jeff Bingaman's amendment--holding off on giving the telecoms immunity until after the IG study mandated by the bill was completed--makes me rather suspicious that Bush intends to spike the IG investigation....

As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001.

   [snip]

H.R. 6304 contains such protection, but the amendment would reportedly foreclose an electronic communication service provider from receiving retroactive [immunity] until 90 days after the Inspectors General of various departments, as required by section 301 of H.R. 6304, complete a comprehensive review of, and submit a final report on, communications intelligence activities authorized by the President between September 11, 2001, and January 17, 2007. The final report is not due for a year after the enactment of the bill. Any amendment that would delay implementation of [immunity] in this manner is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President's other advisors, will recommend that the President veto any bill that includes such an amendment.

Now, I'd be charitable and buy Mike amd Mike's claim that they're just worried about a delay. Except that they make this completely cynical bid to suggest that the SSCI's review of the program was adequate to expose what really happened with this program....

So we know that--at the very least--the IG investigation will have reviewed John Yoo's role in this process, whereas SSCI has not done so. You think maybe there's something that OPR found but is hiding (and on that note, here's the LAT's recent discovery of something I covered last year--that OPR never has to reveal the results of its investigations)? Mike and Mike don't want you and I to find out what that is until after McConnell's former buddies in the privatized spying racket get their immunity.

And, too, though Mike and Mike don't want to say it, they also don't want us to have any leverage over both the telecoms and the Administration(s) to make sure we get our IG review. Telecom immunity, after all, is a pretty fucking big carrot. We're way more likely to get what we want out of them--timely cooperation and security clearances--if we withhold that carrot until we get what we want.

But Mike and Mike, for some reason, are dead set against that happening.

It's hard to imagine that the Bush crew ever really considered the possibility of in IG investigation of this program, and now that's pretty much confirmed. They've engineered the OPR investigation to be a dead end and were able to show the SSCI into writing this ridiculous bill without even having the benefit of knowing what they are immunizing the telcos for. Here's one more investigation that is utterly unacceptable.

Should this perfectly reasonable and bipartisan amendment pass, the bill will be vetoed. Because this president is above the law. The DNI and the AG say so, and Congress is about ready to ratify that assertion, so there you go.

Following last week's federal court decision in Al Haramain v. Bush, now we know both that the federal courts would rule the program illegal AND that FISA was always "exclusive." Now we also know that there will likely never be any IG report, no matter what Congress does.

So what's left among the rationales for passing this, again?

Update: The debate on this bill will occur today. Because of Jesse Helms funeral, also today, all votes will be held tomorrow.

Since I started writing about Senator Obama’s reversal on the upcoming FISA vote, the number of comments to my Huffington Post column shot up 1000%, and they are mostly supportive. It turns out that there are a lot of Obama supporters who feel as I do: we support Obama over McCain as much ever, but his about-face on FISA and the US Constitution is a disaster that cannot be ignored.

The Internet had a lot to do with this. What if we can find a way to use it to our advantage now? Is there a creative way to use the Internet to make our voice heard? I have a proposal:

Imagine how inspired you would have been if, instead of turning and running, Obama was interrupting his campaign schedule to fly to Washington and lead the filibuster against the FISA legislation. Take the money donate it instead to Russ Feingold, the senator who is leading the struggle. Then tell everyone you know to do the same.