By a twist of fate, Jane Harman actually appeared at the AIPAC convention over the weekend, bringing full circle the recent controversy over her comments picked up on a wiretap offering help to get AIPAC staffers out of a Justice Department probe in exchange for help getting the Chair of the House Intelligence Committee. She vowed to begin a crusade against illegal wiretapping and overreach from the surveillance state.
Harman has described the wiretap as an abuse of government power. But sources have told The Washington Post that she was not being surveilled; the tapped phone belonged to the suspected Israeli agent, who happened to talk to her.
"I will not quit on this until I am absolutely sure this can never happen to anyone else," Harman told the AIPAC audience, which warmly applauded her. She said the incident was having "a chilling effect" on members of Congress who "care intensely about the U.S.-Israeli security relationship . . . and have every right to talk to advocacy groups."
Later, she called herself a "warrior on behalf of our Constitution and against abuse of power". Which, coming from Harman, is utterly absurd, a magic act where she transforms herself from a vigorous defender of executive prerogatives on wiretapping to a civil liberties zealot who wants to take down the surveillance state.
Jane Harman is a warrior on behalf of the Constitution and against abuse of power -- that's the same Jane Harman who tried to bully The New York Times out of writing about Bush's illegal spying program, who succeeded in pressuring them not to publish their story until after Bush was re-elected, who repeatedly proclaimed the program to be "legal and necessary" once it was revealed, who called the whistle-blowers "despicable", who went on Meet the Press and expressed receptiveness to a criminal investigation of The New York Times for publishing the story, who led the way in supporting the Fourth-Amendment-gutting and safeguard-destroying FISA Amendments Act of 2008, and who demanded that telecoms be retroactively immunized for breaking multiple laws by allowing government spying on their customers without warrants of any kind.
That is who is a self-proclaimed "warrior on behalf of our Constitution and against abuse of power."
As Atrios notes, Jane Harman is primarily concerned about wiretapping of People Named Jane Harman. And her point that this represented a potential abuse of government power, which by the way is
entirely plausible, was the entire point of people like me when we decried an illegal wiretapping program that would be ripe for abuse. You know, the one Jane Harman defended.
Worse, in the "Fact Sheet" Harman is sending around to supporters in the district, she characterizes herself as, among other things, a longtime critic of warrantless wiretapping in the most fantastical way possible:
• Harman has never supported so-called "warrantless wiretaps" on Americans. "We must use all lawful tools to detect and disrupt the plans of our enemies; signals intelligence and the work of the NSA are vital to that mission. But in doing so, it is also vital that we protect the American people's constitutional rights." (Press release of Dec. 21, 2005 -- four days after the President declassified the existence of the Terrorist Surveillance Program).
• Harman introduced the LISTEN Act (H.R. 5371) with House Judiciary Committee Chairman John Conyers to add resources to the Justice Department to ensure the issuance of individualized warrants under FISA. (Press release of May 11, 2006).
• Harman, Senator Obama, and Speaker Pelosi supported amendments to FISA to expand protections to US citizens, and give limited court-reviewed immunity to telecommunications firms that prove they relied in good faith on what they believed was a valid order to produce records. (Vote date of June 20, 2008).
She must think we're all idiots. That vote of June 20, 2008, the amendments to FISA to "expand protections to US citizens," in addition to providing retroactive immunity for the telecoms for breaking the law, actually granted sweeping new powers to the federal government, including the ability to "conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing." The fact that this lack of oversight or judicial review could lead to abuses of surveillance power has been confirmed by reports that the NSA overstepped its legal authority to wiretap by intercepting the private emails and phone calls of Americans, problems which grew "out of changes enacted by Congress last July in the law that regulates the government's wiretapping powers." The fact that Barack Obama supported that bill, considering that he was massively criticized by progressives for that FISA vote, doesn't exactly help the cause.
Harman's record on wiretapping is well-known and her efforts to wiggle out of it are frankly laughable. And the rest of her record, as demonstrated by Swing State Project today, shows her to be among the top 20 Democrats voting less liberal than what their districts would support. That, more than this hypocrisy on civil liberties, is why she'll draw a primary challenge next year, should she choose to run again.
As it concerns the reports of Harman possibly being nominated to a post in the intelligence apparatus, it's very important for everyone to remember how complicit Jane Harman has been in illegal acts by the Bush administration in allowing detainee torture to take place and in trampling on our rights as American citizens. Because of her history, there's no way she should get any of these jobs. (follow below)
First Rep. Laura Richardson was having problems making house payments, defaulting six times over eight years.
Then after a bank foreclosed on her Sacramento house and sold it at auction in May, the Long Beach Democrat made such a stink that Washington Mutual, in an unusual move, grabbed it back and returned it to her.
This week, in the latest chapter in the housing saga, the Code Enforcement Department in Sacramento declared her home a "public nuisance."
The city has threatened to fine her as much as $5,000 a month if she doesn't fix it up.
Neighbors in the upper-middle-class neighborhood complain that the sprinklers are never turned on and the grass and plants are dead or dying. The gate is broken, and windows are covered with brown paper.
"I would call it an eyesore," said Peter Thomsen, a retired bank executive who lives nearby.
I think "embarrassing" is the best word for it. Laura Richardson has no need or use for a home in Sacramento anymore, and in her letter to supporters trying to give an alibi for her recent conduct, she says that she isn't rich and doesn't have a second income to afford her lifestyle. Then why the useless home in Sac'to that's become decrepit?
If this was the only thing wrong with Richardson, it'd be enough, frankly. But the fact that she voted to sink the Fourth Amendment and provide amnesty for lawbreaking to the telecoms in the FISA bill means that her votes are as embarrassing as her home upkeep. It's really unacceptable to have her as a representative of this state, honestly.
Today the New York Times reports on the continuing failure of the Michael Mukasey as Attorney General experiment. Back in November we at the Courage Campaign didn't much like the notion of an Attorney General Mukasey, but Senator Dianne Feinstein strongly disagreed. She got a lot of pushback and defended her case in an LA Times OpEd that she might want back at this point given the way reality has actually played out. Let's play point/counterpoint between Feinstein's argument in November and the New York Times today:
Feinstein:
During a long career in public service and private practice, Michael B. Mukasey has forged an independent path as a lawyer and federal judge.
Sen. Arlen Specter:
"I don't want to use the word 'disappointed,' but he hasn't provided the balance that I had hoped for"
(I'm under a mountain of work, so I have a lot on Netroots Nation stored up, but this from our pal Paul about the Pelosi/Gore session is good. And BTW, I asked the Iraq question. - promoted by David Dayen)
It's no surprise that House Speaker Nancy Pelosi got a tough reception at Netroots Nation - as bloggers asked about the Iraq War, impeachment and (of course) FISA. Pelosi passed the buck on all of these issues - saying that she's let House Judiciary Chair John Conyers handle executive contempt, blamed Senate Democrats for selling out on FISA and said that only electing Barack Obama will get us out of Iraq. When Al Gore popped in to make a surprise appearance, the crowd gave a hero's welcome to the ex-Vice President - posing a sharp contrast with Pelosi. Bloggers cheered Gore's ambitious environmental agenda to make the United States 100% free of fossil fuel energy by 2019. But nobody bothered to ask Gore why he didn't push for this 15 years ago when he could have done something about it. Meanwhile, Pelosi's excuses frustrated the audience - but they each have an element of truth to them. On the other hand, if Pelosi says she "doesn't have the votes" in Congress to get what we want, she should start being more supportive of primary challenges that bloggers wage against bad Democrats.
Over at the Wall Street Journal, they want to talk about what the media narrative of the day: Obama Buyer's Remorse from the Left. But here at the actual convention, there is quite a bit of enthusiasm here. Perhaps people can be disappointed in their candidate without abandoning hope? Well, not if the media has anything to say about it.
Sen. Barack Obama's support of a recent overhaul of domestic spy laws that rankled many on the left still has them rankled if the opening session at the annual Netroots Nation convention taking place in Austin, Texas, is any indication. (WSJ 7/17)
Matt Stoller responds to this general argument of "Buyer's remorse" at OpenLeft
At any rate, the whining from DC pundits about how the left was undermining Obama's chances at winning was absolutely wrong. His small dollar donor army wants him in that White House, and they are going to pay to put him there. While it's often impossible for consultants in DC to keep multiple thoughts in their head, it is possible for most of us normal bluggers and blug readers to get that we don't like his vote on FISA but we want him to win the White House desperately anyway.
The small dollar donors and the netroots folks here in Austin can walk AND chew gum. It's really quite amazing. That was seen in California in the latest Field Poll where Sen. Obama solidified the left despite FISA and the surrounding hubub.
FISA is important, yet it is not the only important item. Wow, who knew?
There's a lot of talk this year about more and better Democrats. Generally the "and better" part means primary campaigns and being selective in the candidates that we support with time, money and cyber ink. The other side of that is holding our representatives accountable in ways outside the ballot box, because sometimes we can't just wait for re-election to get responsive representation; too much happens. It's not always easy to find effective ways to get attention and movement, but passion and creativity can be combined into a potent mix.
Last week Senator Dianne Feinstein voted to give away our 4th Amendment privacy protections and grant retroactive immunity to the telecom companies who may have been illegally complicit in domestic spying on U.S. citizens. It was hardly the first time that Sen. Feinstein has given us reason for serious concern. Once before, her support of previous iterations of FISA legislation, Judge Leslie Southwick and now-Attorney General Mukasey inspired us to insist she pay attention to Californians. We asked you whether it was time to pursue censure again, and more than 12,000 of you responded with a clear message.
Rick Jacobs sent an email this morning running through the results, explaining where we go from here, and asking you to help:
Those who are coming to this story today have jumped into the middle of quite a tale. I put myself in a tough position last time by promising to link a British "garden of lust", Benjamin Franklin, and 18th Century bloggers into a narrative that concludes with the nascent United States of America and its shiny new Fourth Amendment.
So far, amazingly enough, I'm pulling it off.
If you need to catch up, here's what's been going on:
When last we met...it was in a world of scandal and intrigue; with King George III and the Earl of Bute (and of course, their assorted minions) very upset with John Entick, author, and John Wilkes, author and world-class raconteur (and drinking buddy to Franklin), because they had the temerity to...well, blog.
The Earl of Bute had taken so much abuse from the Johns that he had been forced to resign from his position as Prime Minister...leaving the minions under his control, many said, only now from behind the scenes.
Something needed to be done...and when you have minions, you put them to use.
This may be one of the strangest tales I have ever brought to the table, Gentle Reader, and yet one of the most fundamental in describing the birth of our Bill of Rights...and most especially the Fourth Amendment.
As many of you know, the new FISA compromise may or may not allow warrantless wiretapping of American citizens on a wholesale scale.
Something you may not know is that a similar debate raged in England (centered around the right of Government to seize the papers of whomever they chose, and use the papers as evidence against those persons) during the reign of King George III-or that it involved scandalous sexual behavior, Benjamin Franklin, the 18th Century version of blogging, and two men who decided to take on the corruption of the Crown...and won.
And because of all that, we have a Fourth Amendment today.
Ready for a tale of liberty and ribaldry?
Then let's plunge right in, shall we?
As bad a week as it's been for John McCain, it's been a TERRIBLE week for Dianne Feinstein. She watched in the Senate Judiciary Committee as Attorney General Michael Mukasey, who she voted to confirm, put on as bad a performance as Alberto Gonzales ever did, covering for the Administration's criminal actions, from torture to politicization of the Justice Department. Then, of course, there was the FISA vote, where she bowed to President Bush and voted to participate in a coverup. Despite this public statement just two weeks before the vote:
I believe the court should not grant immunity without looking into the legality of the companies' actions. So if there is an amendment that does support this, I would intend to vote for it.
Amendment Number: S.Amdt. 5059 to H.R. 6304 (Foreign Intelligence Surveillance Act of 1978)
Statement of Purpose: To limit retroactive immunity for providing assistance to the United States to instances in which a Federal court determines the assistance was provided in connection with an intelligence activity that was constitutional.
Feinstein (D-CA), Nay
And of course, she voted against stripping immunity, for cloture, and for the final bill.
Then there's this water bond which is more of a true compromise for DiFi, but still includes funds for building dams, and ignores unspent water funds from a 2006 bond issue. So the idea is to borrow on top of the borrowing.
Courage Campaign is considering whether or not to push censure, but CREDO Action isn't waiting to voice their displeasure. From an email:
On July 9th, sixty-nine senators voted to gut the Bill of Rights. They voted to hand President Bush the power to spy on Americans without warrants, and to grant retroactive immunity to the telecoms who allegedly helped him break the law in the past.
No wonder the Associated Press headline following the bill's passage read, "Senate bows to Bush."
So why does a president with the lowest approval ratings since the advent of polling have the power to eviscerate the Constitution?
Because Sen. Feinstein gave it to him.
We can't undo what our senators have done. But we can tell them that we can't believe they'd rather protect President Bush and his law-breaking cronies than the civil liberties of all Americans.
Click here to tell Sen. Feinstein that you are watching, that you are disappointed, and that you won't sit idly by while our Congress destroys our Constitution.
After you sign the petition, please be sure to tell a few friends.
It's really the establishment mindset, afraid of being labeled weak and then bowing to the opposition party's demands, and not recognizing the irony, that must be stopped. And there's no greater symbol of that mindset than DiFi.
UPDATE: (Bob) With rumors swirling that a Federal Grand Jury is poised to indict Don Perata, this has also the week that Perata has been telling anyone who will listening that the FBI investigation is a political witch hunt. Which, if true, means DiFi's infamous statement that he, "is not Alberto Gonzalez" in announcing her support for Mukasey's confirmation looks all the more ridiculous. Perata defenders like Roger Salazar and Jason Kinney and Bob Mulholland can use the above link to cast their votes to hold Feinstein accountable. Interestingly, Mukasey's confirmation blunder was cited specifically in the previous censure push when Art Torres put his credibility on the line defending her. And this week DiFi undermined that credibility with retroactive immunity caving at the same time CDP credibility was threatened with the Perata handout which rationalizers say was necessary because of Mukasey. Accountability matters.
Many words have been proffered regarding the FISA bill this week, and I was actually preparing an analysis of the events when, to my surprise, I received an email that made me alter my schedule completely.
I want to apologize in advance to Danny Medress, over at Democracy for America, for whom I was preparing the analysis; and all I can tell you, Danny, is that this was of such import that the schedule had to be slipped.
That said, presented here in its entirety is the memo I received ...and having read it through, I have to say I feel much safer.
"A Heavy Heart." That was the subject of the email I received today from Senator Chris Dodd. After fighting tooth and nail for many months, with a coalition cobbled together on the fly, brought together by a fundamental drive to protect the Constitution, the Senate was finally able to force through a new FISA bill including retroactive immunity for telecom companies.
It's been an educational road for netroots activists in particular and Democratic activists in general. Developing effective methods of demanding and receiving accountability from out elected officials is still a work in progress. But in a number of very encouraging ways, the FISA fight over these many months has helped uncover what ideas held promise and afforded the chance to refine them. We may not have won this one, but we sure as hell made it a lot harder along the way.
A number of Democrats abandoned the Fourth Amendment to vote for immunity, including Senator Dianne Feinstein. It's been a relatively tough year for the Constitution when Feinstein's been faced with challenging votes, and this sadly was no exception. But it's important to hear Senator Dodd's words today:
...let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.
We came together - all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.
I'm sorry we weren't successful.
And so Rick Jacobs put the accountability challenge to Courage Campaign supporters today via email. What are we going to do about it? His email is on the flip.
UPDATE by Dave: Today is NOT the big day. Jesse Helms, in his most positive act as a Senator, died over the weekend, and his funeral will delay the FISA vote until Wednesday. There will be debate in the Senate today, with votes likely tomorrow. You have additional time to call your Senators.
...........................................
The United States Senate will soon vote on whether to provide retroactive immunity to the big telecom companies who broke the law with George Bush and violated the constitution with warrantless wiretaps (beginning before 9/11). From her absurd perch on the Judiciary Committee, Senator Dianne Feinstein has been leading the push to protect Bush by protecting the telecoms and preventing discovery in the case so the American people never get their day in court and our country may not be able to find out the true extent of shredding of the Constitution that DiFi enabled. Senator Feinstein put our presidential nominee in an awful position with her representation of the administration and made a joke of Art Torres.
Today is the big day and if Senator Feinstein violates her oath of office and does not defend the Constitution, she is likely to face censure again. And while DiFi never responded to the outcry by over 40 wonderful organizations leading the push to censure her, we do know where she stands on censure. You see, Feinstein once pushed her own censure resolution and tell me if the language she used doesn't sound like she thinks she should be censured.
Our friends at Blue America note Senator Dianne Feinstein is hiding under the covers at an undisclosed location:
Christy has put in tons and I mean tons of hard work finding out where our elected officials are going to appear over the fourth of July holiday. It seems some of them (*cough Diane Feinstein cough*) are using the "terrorist threat" to refuse to let their constituents know where they will be.
National security is a convenient excuse for so very many things.
So you'll probably have a tough time seeing DiFi this Independence Day to ask her to honor her oath of office to defend the Constitution and filibuster retroactive immunity. But Blue America has a nifty tool for you to whip votes.
There is a great deal of disgust with Barack Obama's massive flip-flop on retroactive immunity, but let's remember that from day one it was Dianne Feinstein trying to undermine him and the Constitution. I feel sorry for Obama, Senators like DiFi put him in a lose/lose situation. And if you've seen much news today, you won't be surprised that after flip-flopping on defending the Constitution he's getting beat up all over by people concluding he'll also flip-flop on Iraq. So give DiFi a call and give her a piece of your mind. Celebrate Independence Day and then go have BBQ or such to enjoy the 4th of July.
UPDATE: Senator Feinstein turned off the answering machine in her DC office and suggests calling a California field office. Numbers after the jump.
UPDATE II: Both her DC and LA offices automatically hung up after the message and the mailboxes are full at all of her other field offices. The online form is the only way to contact DiFi this Independence Day to ask her to support the Constitution. Turning off answering machines and hiding from the public? I think she belies her realization that constituents are pissed.
The main talking point that, in particular, Dianne Feinstein and Nancy Pelosi have used to claim the necessity of the FISA capitulation is that under this law, the FISA Court will be the "exclusive means" for electronic surveillance. The bamboozlement here is that FISA, a federal statute, never was the exclusive means before. Now we have confirmation of this, from a federal judge in California no less.
A federal judge in California said Wednesday that the wiretapping law established by Congress was the "exclusive" means for the president to eavesdrop on Americans, and he rejected the government's claim that the president's constitutional authority as commander in chief trumped that law.
The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001 [...]
But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.
"Congress appears clearly to have intended to - and did - establish the exclusive means for foreign intelligence activities to be conducted," the judge wrote. "Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch's authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities."
Idiots, idiots, idiots. In the course of giving away massive new surveillance powers and immunity for lawbreakers, the so-called "chip" that they received in return was already in the law to begin with. Remember that exclusivity was DiFi's amendment, and Pelosi said it was "the most important" aspect of any new law.
(By the way, this lawsuit is against the federal government, not the telecoms, so it would continue regardless of the outcome of Tuesday's vote.)
That's something you may be used to hearing about a Democratic candidate in other states, but here in Utah, this is truly a first. We have but one Democrat in our federal delegation, and on FISA, Matheson has proven himself a true Bush Dog. Now it appears a new candidate is ready to step up and show true leadership on a key issue.
Morgan is the Democratic candidate for Utah's first congressional district, a seat currently held by school voucher supporting, "drill here, drill now" parroting, warrantless wiretap backing Rob Bishop. In addition to the 2/1 odds Morgan faces unseating the corporate funded incumbent, he also faces a battle with in-state leadership as a result of Rep. Jim Matheson, our only sitting Democrat, and faithful Blue Dog.
Here is the text of my latest letter to Senator Feinstein on FISA and telecom immunity. It appears that we have been corresponding for so long that I now have a pretty good record to go by to understand her position. To see where she was, and where she's gone on this issue is not pretty.
Please note that I did take one last thing out of this letter before I faxed it, but I left it in for the readers here to understand just how I feel.
June 29, 2008
Senator Diane Feinstein
United States Senate
331 Hart Senate Office Building
Washington, DC 20510 Via Facsimile (202) 228-3954
Re: FISA Telecom Immunity
Dear Senator Feinstein:
For over two years, I have been writing to you about my outrage over the Bush administration's warrantless wiretapping of American citizens. You have somehow found it possible, given your busy schedule selling out our civil rights, to respond to my communications from time to time, and I thank you for it. I would like to both review your positions on the issue, and respond to them, now that the Senate is considering a bill that would give the telecommunications companies that colluded with the administration immunity for their undisputed wrongdoing.
I first wrote to you about my concerns in early 2006. On April 12, 2006, you responded via email as follows:
I have carefully reviewed the Constitution and the laws relating to this domestic intelligence activity, along with the President's statements and those of the Attorney General and other Administration officials. I believe that the electronic surveillance program was not conducted in accordance with U.S. law. The program, as described, violates the Foreign Intelligence Surveillance Act, which requires a court order for surveillance of Americans.
Congress has updated FISA many times since 9/11 in order to provide our nation with all the necessary tools to fight terrorism. The Administration has never asked for the authority to conduct this program.
I believe the Administration also violated the National Security Act, which requires all members of the Intelligence Committee to be fully and currently informed of all significant intelligence activities other than covert actions. I am a member of the Intelligence Committee, and yet I was not told about this program until it was made public.
On October 20, 2007, I again wrote to you, via facsimile, when it became clear that you had backed away from your original position, as set forth above, because you were "undecided" as to whether to grant immunity to those telecommunications companies that had done what the administration wanted, in spite of the manifest illegality of doing so. I laid out a timeline of what I considered relevant events concerning warrantless wiretapping. I believe that timeline is as trenchant now as it was then, and I will again impart it to you:
1) On October 13, 2007, The Washington Post reported that based on documents released from the trial of Joseph Nacchio, former CEO of Qwest Communications, that the government had enlisted the telecommunications companies' assistance with its warrantless wiretapping program (the program) on February 27, 2001, fully six months prior to the attack on the World Trade Center (9/11);
2) While Quest refused, maintaining the program was illegal, other companies did participate;
3) At least one telecommunications company, Verizon, not only participated, but also demanded and received payment of $1,000 each time it provided information pursuant to the program;
4) Verizon was paid for its participation over 700 times;
5) The program, and telecommunications companies' illegal acts in support of it, failed to prevent 9/11;
6) According to fully corroborated testimony by James Comey before the Senate Judiciary Committee (upon which you sit), on March 11, 2004, although it had previously done so, the Department of Justice (DOJ) refused to affirm the legality of the program, but the President allowed the program to continue, despite DOJ's refusal;
7) The President, on April 20, 2004, publicly denied such warrantless wiretapping was taking place;
8) In December 2005, the existence of the program was disclosed by The New York Times;
9) In response to the disclosure, the President admitted to the existence of the program, but claimed that it (a) began after 9/11, and (b) prevented an attack on the Library Tower in Los Angeles (which the President called the "Liberty Tower");
10) Subsequent investigation revealed there was probably no imminent or even credible threat to the Library Tower;
11) In the ensuing months and years, the Administration has claimed that such warrantless wiretapping has been conducted very rarely, and only in extreme circumstances;
12) Subsequent investigation by the FBI's Inspector General revealed that such a claim is patently false; the FBI has abused its ability to issue National Security Letters and obtain private communications without warrants on hundreds of occasions, and many if not most of those letters were issued in connection with investigations wholly unrelated to terrorism;
13) On August 3, 2007, 60 Senators, including you, voted for the Protect America Act (PAA), which gives the Administration increased ability to engage in warrantless wiretapping;
14) After the PAA became law, several members of Congress indicated the Administration had warned them of an imminent threat of a terrorist attack upon Congress, which bore upon their votes;
15) Subsequent investigation reveals there was no such imminent threat;
16) In the ensuing weeks since the passage of the PAA, the President has claimed that the members of the "Gang of Eight" in Congress had been fully briefed on the warrantless wiretapping program;
17) At least three members of the "Gang of Eight" have indicated that they were not so briefed;
18) The President continues to claim that the warrantless wiretapping program was undertaken in response to 9/11.
Your response from January 22, 2008, via email, was remarkable, not only for the time it took to reach me (a mere six months), but for the amazing turnaround in your position on the matter:
I introduced an amendment on the Senate floor that would limit this grant of immunity. Under my amendment, cases against the telecommunications companies would go to the FISA Court for judicial review. The Court would only provide immunity if it finds that the alleged assistance was not provided, that assistance met legal requirements, or that a company had a good faith, reasonable belief that assistance was legal.
I believe that this approach strikes the correct balance: it maintains court review and a judicial determination of whether companies provided assistance that they should have known violated the law.
I have also filed an amendment to restore FISA's exclusivity, to ensure that no surveillance program can proceed outside the law in the way that the Terrorist Surveillance Program did for more than five years.
After reading your response, I responded the next day, with a facsimile that repeated the timeline, and included an additional point:
19) On January 10, 2008, it became publicly known that telecommunications companies had cut off FBI wiretaps because the bills had not been paid quickly enough to suit the companies.
I then received a letter via U.S. Mail that appeared to me to be a word-for-word repeat of your email. I am unsure whether you responded to my second facsimile at all, but suffice it to say that I was then clear about your position: you favored your judicial review that would grant immunity to telecommunications companies for a "good faith" belief in the legality something that they knew was illegal for over 30 years.
And so now the Senate is on the verge of voting on a bill that would go so much further than your pathetic "balanced" approach, in that the question of illegality of the wiretapping would never enter into the judicial review at all; rather, the review would be limited to deciding whether the companies were told they would somehow be protected by the Administration for breaking the law, and if they were, they become immune.
One has to wonder how we could have fallen so far into this Alice in Wonderland rabbit hole where "they told me I could" becomes the justification for excusing unlawful conduct. I think it is rather clear than when an important decision maker in the process moves from "I believe that the electronic surveillance program was not conducted in accordance with U.S. law" to "I introduced an amendment on the Senate floor that would limit this grant of immunity" that the responsibility lies, to a significant degree, with that decision maker, namely you.
From a negotiation standpoint, what you did makes no sense at all. Your amendment was a virtual capitulation from the beginning of the process that already gave the Administration more than it should have ever expected. There is no precedent in American law that would give intentional actors retroactive civil immunity for their acts, until you made such a notion possible. So, when Representative Hoyer began the negotiations that led to this bill, his side had already conceded a point that should not have been part of the calculus at all.
Further, I see no reason at all why the right of the American people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, was ever a negotiable point in the first place. That such a notion would have occurred to you makes me doubt your commitment to the Constitution and the People of the State of California, whom, I would like to remind you, you were elected to serve. We value our personal rights, as set forth in the very first provision of our State's constitution:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Finally, any notion that these companies acted in anything that would approach "good faith" is completely undermined by their eagerness to shut off the wiretaps for slow payment (and there has never been any suggestion that the government would not pay eventually) even if these taps were of great importance to ongoing investigations. The companies were not concerned with any notions of patriotism; they were only in it for the money. For you or anyone to maintain that telecom immunity must be passed in order to keep us from "being attacked by terrorists," is simply an insult. As I noted above, the illegal program was instituted before September 11, 2001, and it did not protect us then. This was an illegal, ineffective program that has produced nothing good in the short term, and promises to produce nothing but bad for our civil liberties in the long term.
Fortunately for the People of California, we have at least one Senator who still respects us, the things that make us strong, and our Constitution. She and a dedicated group of her colleagues have managed to put the brakes on what has felt like a runaway train that would destroy our civil liberties. With what now seems like the luxury of time (a scant two weeks), perhaps you can reflect upon the fiasco that that you would create by supporting the FISA bill, and finally come to understand that it does no good and much harm.
Moreover, even if you were to decide that ultimately this compromise is somehow the right thing to do, there is simply no need to do it hastily. We still do not know exactly what the telecommunications companies did, upon whom it was done, and we have no idea whether it produced anything at all that would make anyone safer. I feel that as to the last point, it did not, or else this Administration, which has little or no regard for the protection of state secrets, except when it feels such secrecy is politically advantageous, would have already disclosed it publicly.
I know that there is a political calculation going on here, but I would like to suggest to you that what appears to be the conventional wisdom on national security is no longer reflective of how the American people (and certainly the people of California) truly feel. We are not ready to cower at the first sign of a threat on our soil, and we are ready to respond not in fear, but with the strength born of our principles of justice and liberty.
There is no doubt that a significant cadre of politicians will try to make an issue out of the failure to pass this bad bill, but their efforts will not succeed as they may have if this were 2003. This Administration is the most unpopular in history, and the political difficulties that would inure to you and those on the side of liberty is not worth avoiding when compared to the massive unearned benefit the Administration and its supporters in Congress would gain from the bill's passage.
Finally, if this is indeed such an important decision to make, there is no reason why it cannot be made by the next Congress, and a new President. There is every reason to believe that the next President will be someone who understands and appreciates the U.S. Constitution, rather than referring to it as a "g*******d piece of paper," and I would much prefer that he make the final decision before signing any bill of this importance. Any investigation that is in place has not been, and will not be affected by not enacting the bill, and if there is a need to collect new information, the Administration can do what it always could have done: GET A WARRANT.
You should be grateful to Senators Boxer, Feingold, Dodd, and the others who have held back this dangerous juggernaut of a bill that would help only a privileged few and cause irreparable harm to this country, its people, and its reason for existence. They have given you what you, for no good reason, have declined to get for yourself: time to come to the right decision, and the only decision you can make with a good conscience (assuming you have one). NOTE: I omitted the italicized parenthetical from the final letter, as I decided it might be a little "over the top."
I urge you to take a cue from your constituents and act from strength and not from fear. Please oppose any FISA legislation that includes telecommunications company immunity, and please support the Constitution and an American system of justice that does not reward those who break the law.
Anyone who knows Eric Bauman, chair of the Los Angeles County Democratic Party, knows that he has no compunction about giving fiery speeches and telling anyone exactly what's on his mind.
And--in something the current CDP leadership should take note of--that includes Senator Dianne Feinstein. Below the fold you'll find Chairman Bauman's full letter to Senator Feinstein regarding the upcoming FISA legislation to be considered in the Senate.
I fully expect that Eric's name will be on the tongues of many grassroots CDP delegates this winter, as he is one of the early declared candidates for the CDP chairmanship.
In the last couple days, there have been several posts across the blogosphere citing what various candidates running for Congress have said on FISA and retroactive immunity for the telecoms. But so far, it's been all over the map. I've tried to corral all their statements into my diary on Daily Kos, so you can see who the "good guys" are.
First, let's start off with the current House and Senate members who voted against this bill. They do deserve credit, as it's their jobs on the line.
Below the fold, I've modified the original diary to list just the California Democratic challengers running who are standing up for the Constitution, and are against this FISA bill and retroactive immunity.
If you're following the FISA battle, you may know that Sen. Feingold and Dodd have vowed to filibuster the full bill when it comes to the floor for a vote. That's slightly less promising than it sounds. The motion to proceed has already been filed by Sen. Reid, and so without the votes on the Dodd-Feingold filibuster, it will be broken. They can stretch out the bill, hopefully to the July 4 recess, but in order to stop it in its tracks you would need less than 60 votes for cloture.
One of those votes may be Sen. Boxer, who just delivered this statement on the floor of the Senate:
One of the most basic tenets of our freedom is justice, and at the heart of justice lies the search for truth.
Throughout history, whenever the United States government has violated the trust of the American people, we have always worked to regain that trust by seeking the truth and allowing for a full examination of the abuses of government power.
In 1975, the Church Committee-which would later become the Senate Select Committee on Intelligence-looked into allegations of covert and illegal spying by the federal government on Americans.
What did the Committee find? The Committee found that the FBI, under J. Edgar Hoover, and the CIA had engaged in spying on the political activities of American citizens.
As a result, Congress passed the Foreign Intelligence Surveillance Act in 1978, setting up a new court with authority to approve electronic surveillance on a case by case basis.
But in late 2005, we learned that the U.S. government had again violated the trust of the American people when the New York Times published a story exposing a warrantless surveillance program authorized by President Bush shortly after 9/11.
Since that time, Congress and the American people have been grappling with the disclosure, and working, with absolutely no help from the Bush Administration, to find out exactly what happened.
Unfortunately, what we have before us today is a bill that would not only deny the Court the ability to finally make a judicial determination as to the legality of the NSA program, but would effectively guarantee immunity for the telecommunications companies that cooperated with the Administration and violated the privacy of their customers.
Now, I would support granting the telecom companies indemnification, but this immunity provision blocks us from finding the truth.
I know that many of my colleagues in the Senate think we know enough about this program.
But we do not know enough. The Bush Administration trampled on the Constitution, and we are not doing anything in this bill to provide accountability.
This bill goes along with the premise that we hold up the constitution when it suits us, and we set it aside when it hinders what we want to do.
Simply put, this bill is a fig leaf that attempts to hide the truth about the warrantless surveillance program at the expense of the rights of our citizens.
And if we vote for it today, we are perpetuating a cover-up.
However, she has not said whether or not she supports the filibuster. You can call her right now:
Barbara Boxer
(202) 224-3553
It's important to note that our hope here is to DELAY. The odds of limiting cloture to 61 people are remote. But if Dodd and Feingold take up all their time on the floor, and enough Senators are there to help and ask questions, we can stretch this thing out. DFA has some sample text for Sen. Boxer:
"I calling to demand Senator (Boxer or Feinstein) support a filibuster of any bill that will ultimately grant immunity to telecommunications companies who spied on innocent Americans. Can I count on the Senator to stand up to President Bush and his fear mongering?"
DFA, True Majority, and MoveOn are working on this.
