Kia Franklin

Voting on FISA Resumed (Updated at 630 pm EST)

UPDATE--6:30 PM.

Can't really say much about this right now. Just go here for the--very very depressing--update. Also you can read Dodd's statement on the importance of the House FISA bill by going here.

The Senate is voting again on the FISA bill. They've already thrown out Feinstein's exclusivity amendment (57-41), Feingold/Webb/Tester's amendment to protect communications involving persons inside the United States (35-63), and the Dodd/Feingold amendment to get rid of retroactive immunity for the telcos (31-67).

Here are excerpts of Dodd's speech on the Senate Floor:

“This is our defining question, the question that confronts every generation: The rule of law, or the rule of men? How many times must we get the wrong answer?

“To those who say that this is just about a few telecoms, I answer: This is about contempt for the law, large and small.

“We are deceiving ourselves when we talk about the U.S. attorneys issue, the habeas issue, the torture issue, the rendition issue, the secrecy issue. As if each one were an isolated case! As if each one were an accident! When we speak of them as isolated, we are keeping our politics cripplingly small; and as long as we keep this small, the rule of men is winning.

“There is only one issue here. Only one: the law issue. Does the president serve the law, or does the law serve the president? Each insult to our Constitution comes from the same source; each springs from the same mindset; and if we attack this contempt for the law at any point, we will wound it at all points.

“That is why I’m here today: Retroactive immunity is on the table today; but also at issue is the entire ideology that justifies it, the same ideology behind torture and executive lawlessness. Immunity is a disgrace in itself, but it is far worse in what it represents. It tells us that some believe in the courts only so long as their verdict goes their way. It puts secrecy above sunshine and fiat above law.”

So in short it looks like the Senate got it wrong again and our civil liberties and the rule of law remain at stake. Great job, guys. Represent for the people, or something.

So what's next? (Because, dear God, there's got to be something...) Well, Reid is expected to oppose cloture (closing of debate on the bill and moving forward to voting on its passage) and to oppose the bill's passage. Will stay updated. In the mean time, you can go to Daily Kos to read their liveblogging on the issue.


From DailyKos (excerpted. Go to the blogpost for the full update):

Senator Dodd just held a conference call with a number of reporters and bloggers. He was discouraged enough by the results of the previous votes to have decided that what makes the most sense at this point in the Senate debate is to wrap this up, after all opposing Senators have had the opportunity of their say, and to get this to the House and the conference committee as soon as possible.

Here's Sen. Obama's statement on his FISA vote:

"I am proud to stand with Senator Dodd, Senator Feingold and a grassroots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty. There is no reason why telephone companies should be given blanket immunity to cover violations of the rights of the American people – we must reaffirm that no one in this country is above the law.

We can give our intelligence and law enforcement community the powers they need to track down and take out terrorists without undermining our commitment to the rule of law, or our basic rights and liberties. That is why I am proud to cosponsor several amendments that protect our privacy while making sure we have the power to track down and take out terrorists.

This Administration continues to use a politics of fear to advance a political agenda. It is time for this politics of fear to end. We are trying to protect the American people, not special interests like the telecommunications industry. We are trying to ensure that we don't sacrifice our liberty in pursuit of security, and it is past time for the Administration to join us in that effort."

Kia Franklin: Author Bio | Other Posts
Posted at 6:30 PM, Feb 12, 2008 in Corporate Abuse | Corporate v. Human Citizenship | Governmental Transparency | Legislation | Liability Immunity | Right to Access the Courts
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The Senate and House have been struggling against themselves during the past few months to craft a more permanent revision of Foreign Intelligence Surveillance Act (FISA) that corrects some of the damage they inflicted on FISA via the Protect America Act of 2007 (which would have expired effective February 1, 2008 if Congress had not approved a 15-day extension). The FISA revision which was approved by the Senate Intelligence Committee, and is close to approval by the full Senate, is an attempt by weak-willed Senate Democrats to demonstrate that the Republicans do not have a monopoly on contempt for the Constitution. In 2006 In response to widespread use of electronic surveillance without warrants (involving U.S. citizens and other legal U.S. residents in addition to foreign targets) under the Terrorist Surveillance Program, Congress passed legislation stipulating that FISA was the exclusive means by which electronic surveillance could be conducted. Now, the pending Senate legislation to amend FISA will not state that FISA is the exclusive means by which electronic surveillance may be conducted even though 57 Senators voted in favor of this amendment.

The Senate Intelligence Committee revision of FISA does little to improve on the Terrorist Surveillance Program and also grants retroactive immunity for telecommunications providers that assisted the Federal Government with the illegal Terrorist Surveillance Program, but the FISA revisions approved by the House and Senate Judiciary Committees do not grant retroactive legal immunity for these telecommunication providers that knowingly ignored the law. In contrast to the PAA of 2007, both the current House and Senate Judiciary Committee versions of FISA revision limit warrantless surveillance to circumstances which are less incompatible with our Constitution, both versions establish more oversight by Congress and by the Foreign Intelligence Surveillance Court (FISC), and both versions state explicitly that FISA is the exclusive means by which electronic surveillance may be conducted. However, the Senate Judiciary Committee revision of FISA has been torpedoed by Republicans and by certain Senate Democrats who are acting as if they were on retainer for the telecommunications industry. The "Blue Dog" Democrats in the House of Representatives are also anxious to capitulate to the Republicans.

The President has threatened to veto the FISA rewrite if FISA does not provide retroactive legal immunity for telecommunication providers, and if the final version of FISA does not resemble more closely the evisceration of FISA he temporarily achieved in August 2007. The fallback position for the President's legal advisors is their assertion that the allegedly defunct Terrorist Surveillance Program was legal because the President's inherent power (i.e., power which is alleged to be implied but which is not mentioned in the Constitution) as commander-in-chief (which is stated but not defined in Article II of the Constitution) authorized him to bypass the powers of Congress which are detailed in Section 1 and Section 8 of Article I of the Constitution. In the Report prepared by the Senate Intelligence Committee in October 2007 to accompany the Senate version of a more permanent revision of FISA, four Republican Senators (including the ranking Republican on the Senate Intelligence Committee) added a statement reiterating their belief that the Terrorist Surveillance Program was legal because the unwritten inherent powers of the President under Article II of the Constitution superseded the legislative power of Congress as expressed through FISA.

Damning information about this issue was revealed in an August 2007 New York Times article, with reference to the PAA of 2007, by Eric Lichtblau and James Risen, who wrote:
At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress. At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, "is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence." Brian Walsh, a senior legal fellow at the conservative Heritage Foundation who attended the same private meeting with Justice Department officials, acknowledged that the meeting — intended by the administration to solicit recommendations on the wiretapping legislation — became quite heated at times. But he said he thought the administration’s stance on the president’s commander-in-chief powers was "a wise course." "They were careful not to concede any authority that they believe they have under Article II," Mr. Walsh said. "If they think they have the constitutional authority, it wouldn’t make sense to commit to not using it.”
(As Henny Youngman would have said: "This is a strict construction of the Constitution!?!?!?")

The rebuttal to an excess of Banana Republic Dictator Theater can be found in the Supreme Court decision written by Justice Robert Jackson in the 1952 case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER: " When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." From a practical standpoint, the Constitution is whatever the Supreme Court says it is, but an assertion by the President that he is entitled to engage in massive electronic surveillance without warrants, involving citizens and other legal residents of the United States, is contrary to the plain meaning of the Fourth Amendment to the Constitution even if FISA is rewritten to authorize such surveillance and even if the Supreme Court were to uphold such a revision of FISA.

We used to be the land of the free and the home of the brave, but now we are the land of "nine-eleven changed everything". There are few transgressions of the President which are not excused by fear-mongering with respect to our so-called "war on terror", and this is a major impediment to a rational discussion of the limits on the President's authority and our professed adherence to the rule of law. The President's profligate use of signing statements to distort the meaning of various pieces of legislation is ample evidence that the President cannot be entrusted with poorly-defined powers which are prone to abuse. On May 17, 2002, the FISA Court released an opinion which stated that FBI and Justice Department officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh. In March 2007, the Inspector General for the Department of Justice released a report confirming extensive misuse of National Security Letters in a sample of four FBI field offices, and an internal audit by the FBI confirmed that the problem was far more extensive than it previously had been thought to be. The discovery several months ago that the CIA Director is investigating the CIA Inspector General is a good example of why a weasel cannot be left alone to guard the chicken coop.

Protecting the lives of our fellow citizens is not a goal which should be dismissed casually, but the threat of a terrorist attack is relatively insignificant when compared to some other threats in which we actually participate willingly or threats that we take for granted. Cigarette smoking causes over 400,000 deaths each year, and alcohol-related deaths exceed 75,000 each year, but the two most destructive drugs in the United States are legal, and Prohibition was a dismal failure due to non-compliance by the public. We know that reducing the speed limit on our highways would save many thousands of lives every year, but the driving public would oppose such a policy because it would cause too much inconvenience. Obesity-related illnesses have become a major cause of premature deaths in the United States, but people are not afraid of food. Approximately 30,000 people are killed each year in the United States by citizens and other legal residents using guns, but most people accept that disarming the populace is unconstitutional and unrealistic (at least while Charlton Heston is still living). Al-Qaida in Iraq is less dangerous to us than the amorphous army of drunk drivers in the United States. It is likely that terrorists will occasionally succeed in killing some people in the United States, and we should do everything practical that is allowed within our Constitution to prevent such deaths, but we should not bargain away our inalienable rights due to fears which are disproportionate to the actual threat.

The right of "habeas corpus" which protects people against unlawful and arbitrary detention has been one of the most fundamental principles of any free society since King John was forced by his nobles to sign the Magna Carta. Section 9 of Article I of the United States Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Despite the fact that various aspects related to the right of "habeas corpus" are delineated in the Fourth, Fifth and (most specifically) Sixth Amendments to the Constitution, former Attorney General Alberto Gonzales stated in testimony before the Senate Judiciary Committee on January 17, 2007 that the Constitution does not guarantee the right of "habeas corpus" to every United States citizen or resident. Although President Lincoln suspended the right of "habeas corpus" selectively during the Civil War (as did Jefferson Davis in the Confederacy), this course of action was quite limited in scope with respect to the existing danger, and the suspension of these rights was very limited in duration. However, our so-called "war on terror" is an endless war, and therefore we would be wise not to jettison essential elements of our Constitution because the thought of Islamic terrorists induces us to wet our pants. Unfortunately, there are many politicians who are betting that they will not pay any political price by trading away parts of our Constitution in return for votes from a cowering public.

(1) Bend over; (2) Put your head between your legs; (3) Kiss your right to privacy goodbye. This was the new order of things as outlined in a speech by Donald Kerr, Principal Deputy Director of the Office of National Intelligence, on October 23, 2007 at the fourth annual Geospatial Intelligence Symposium in San Antonio, Texas. With reference to Internet sites like Myspace and Facebook, Mr. Kerr said that Americans essentially are giving up privacy anyway by posting personal information on such social networking sites. Mr. Kerr, age 68, stated that the two most recent generations have very different ideas about what is essential privacy and about what they would wish to protect concerning their lives and affairs. Therefore, Mr. Kerr concluded that anyone who has typed his/her name on "Google" understands that protecting privacy from our own government is not a fight which can be won, and (he really said this) "it's not for us to inflict one size fits all". The "greatest generation" and the baby boomers must now apologize for inflicting the Bill of Rights on our younger generations. If I understand Mr. Kerr's spurious argument correctly (and I do), he thinks it is a waste of time and energy to try to save the Fourth Amendment to the Constitution because Generation X and Generation Y have chosen to post their lives on the Internet. This is a timely reminder that a fool and his Constitution are soon parted.

Posted by: Blaine Kinsey | February 12, 2008 4:35 PM