The Strident Centrist Blog

Updated below, 6/25/08, 11:00 am, CDT

What follows is a brief explanation of what the controversy regarding the FISA Modification Bill is all about.

• The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to rein in the various elements of the intelligence community following the revelations of the Senate committee led by the late Senator Frank Church. The committee hearings had exposed rampant violations of Americans’ civil liberties that had been going on for decades.
• Beginning in 2005 the Bush-Cheney administration, with a troubling level of acquiescence on the part of the Congressional Democratic leadership, pushed through several modifications to FISA. So far they have been unable to overcome the push-back from Constitutionalists against their most egregious attempts to erode civil liberties and to immunize themselves from being called to account for their past misdeeds.
• There is compelling, indirect evidence suggesting that the Bush administration surreptitiously but massively violated the terms of FISA as then in effect in the wake of 9/11, and very likely even before. These violations are believed to include huge data mining operations conducted by the NSA on most or all communications of American citizens, in direct violation of the minimization provisions of FISA.
• The “compromise” FISA Modification Act that passed by the House Friday, June 20, was negotiated in secret between the Congressional Democratic leadership and the White House, and formally introduced in t he House only about 24 hours before the vote. Thus there was no time for meaningful debate.
• This is a flagrant breaking of the promise made by then minority leader Nancy Pelosi in January, 2006 to stop such behavior, which was routine during the twelve years of the GOP House majority control, if she became Speaker.
• A similar attempt is being made to push the bill through the Senate in an equally hasty manner this week.
• The FISA Modification “compromise” in effect guts the Fourth Amendment protections against unwarranted search and seizure of American citizens with regard to any form of electronic telecommunication.
• The “compromise” is vehemently opposed by the progressives on the left, as well as the remaining Constitutionalists on the right. Most but not all such people have severed their relationships with what has become of the Republican Party. Among the most vocal of them are: John Dean; Kevin Phillips; Paul Craig Roberts; Bruce Fein; Rep. Ron Paul; and former Rep. Bob Barr, who was recently nominated to be the Libertarian Party’s candidate for President.
• The administration’s primary “must have” provision in the negotiations is the so-called “Telecom Immunity” clause that prevents the carriers from being sued by private parties for complicity in civil rights violations during government surveillance.
• In reality the Telecoms almost certainly don’t need immunity. Lawyers who’ve had extensive experience dealing with that industry dismiss as laughable the suggestion that sophisticated companies like AT&Ts and Verizons would enter into contracts of this type with the government that did not include ironclad, blanket indemnity provisions.
• The real purpose of the Telecom immunity clause is to prevent the rampant FISA violations that took place earlier this decade from ever seeing the light of day. In view of the fact that the Justice Department is now an utter captive of the GOP White House political operatives, private litigation is the only remaining avenue through which the misdeeds might be exposed.
• It is believed that Congressional Democratic Party leaders, several of whom were among the so-called “gang of four” and “gang of eight” who were responsible for intelligence community oversight, have conspired with the White House on this bill because they, too, don’t want their meek acquiescence to the wide-spread Constitutional violations exposed.
• The “compromise” FISA Modification bill, if enacted, will set an ominous precedent for future presidents of whatever party, saying in effect that it’s OK to blatantly violate the law and subsequently pass legislation to cover it up.
• There’s still time to stop this! Contact your US Senators. Both Klobuchar and Coleman. Emphasize the danger these precedents set for any future president.
• Contact Senator Barack Obama! Join the thousands who just since this past Friday have pleaded with him to step forward and take the lead on this critical Constitutional issue. After all, he claims this branch of the law his specialty!

For more information here are some links:

Keith Olberman’s interview of Constitutional scholar Jonathan Turley provides a succinct video of the issues at stake.

Marcy Wheeler’s blog post entitled “The FISA Bill”, dated Thursday, June 19, hits the highlights in her clear prose.

For more background information and ongoing coverage:

Marcy Wheeler’s blog (She covers a range of Bush-Cheney malfeasance besides FISA, especially revelations related to Valerie Plame Wilson)

Glenn Greenwald’s blog at Salon, which addresses a variety of issues, most of which relate to his background as a Constitutional lawyer.

Update - The Olberman/Turley interview link, above, has been updated to one that is still active. Also, Constitutional scholar Scott Horton has this to say at the Harpers Magazine website about the forthcoming Surveillance State.

The six students who constitute the Republican Club at Knox College in Galesburg, Illinois, somehow raised the $15K fee to entice former Attorney General John Ashcroft to speak last night. It may be a while before he speaks on another campus, or at least has a Q & A afterwards, unless it’s of the likes of Regents or Oral Roberts Universities.

A student who goes by the name Elsinora (at least on the internet; sometimes) asked how he could have approved of waterboarding in light of the fact that one Yukio Asano was convicted and sentenced to 15 years for waterboarding American prisoners during World War II. When she pursued the matter after he tried to suggest there were differences in the procedures, he became completely unhinged: (more…)

We need a new Speaker of the House, one who doesn’t carry around the Bushian baggage of picking and choosing which parts of the Constitution to protect and defend and which to ignore. Sheldon Whitehouse, the freshman Senator from Rhode Island and former US Attorney, made a speech today on the floor of the Senate that should be read by every American who cares about Constitutional government. Here’s but one example of the lawlessness in the White House cited by Senator Whitehouse that threatens the future of our democracy: (more…)

Kargox at The Next Hurrah is deeply troubled by the responses of Judge Michael Mukasey, the administration’s nominee for Attorney General, to questions posed by Sen. Pat Leahy and others of the Senate Judiciary Committee:

An “administration” that sends distinguished federal judges to Capitol Hill and puts them in a position requiring them to hedge on answers to such basic questions as must a president obey federal statutes is operating so far outside the bounds of normalcy already, that it hardly seems worth anyone’s time to pretend that an Attorney General is necessary to the functioning of the government at all.

Indeed, the confirmation of an Attorney General at this point does the country a considerable disservice, by glossing over the fact that the “administration” is operating in a manner that would actually require this kind of evasion from someone who supposedly aspires to the nation’s top law enforcement position.

Previously, a few days after the hearings two weeks ago, Kargox had asserted that the country is better off with no attorney general than one who had to compromise him or herself to the extent necessary to be successfully vetted for nominated by this administration.

The aspect of Mukasey’s testimony that has garnered the most press is his reluctance to state unequivocally that waterboarding is a form of torture. But what Kargox and other writers find even more troubling is the fact that during his second and last day of testimony (Tuesday, October 16, IIRC) he refused to state explicitly that the president is constrained by law, as typified by this exchange between Sen. Leahy and the judge quoted by Marcy Wheeler in her riff on Kargox’s post:

LEAHY: And, lastly, where Congress has clearly legislated in an area, as we’ve done in the area of surveillance with the FISA law, something we’ve amended repeatedly at the request of various administrations, if somebody — if it’s been legislated and stated very clearly what must be done, if you operate outside of that, whether it’s with a presidential authorization or anything else, wouldn’t that be illegal?

MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.

LEAHY: Where does the president get that authority? I thinking of the Jackson opinion and others. Where does he get the authority if it’s clearly enunciated what he can do, law that he signed, very clearly enunciated? I mean, the president say, This authority, I’m going to order the FBI to go in and raid 25 houses because somebody told me they think someone’s there. We’re not going to wait for courts, we’re not going to do anything else. There’s no urgency, but we’d just kind of like to do that.

MUKASEY: We’d kind of like to do that is not any kind of legitimate assertion of authority.

And I recognize that you’ve posited the case that way for a reason. But the statute, regardless of its clarity, can’t change the Constitution. That’s been true since the Prize cases. And it was true before that.

Mukasey explicitly states that the president can ignore the law if ” . . what goes outside the statute nonetheless lies within the authority of the president to defend the country.” And the clear implication is that it is the president who determines the necessity, or lack thereof, of going outside the law to defend the country. As one of the people who submitted comments to Marcy Wheeler’s post wrote:

If the President can decide that the 4th Amendment (which is what the FISA bill is all about) restricts his Constitutionally delegated responsibility to protect the nation, then what would stop him from deciding that the 22nd amendment also prevents him from saving the U.S. from the always imminent truly collosal islamofascist attack that will wipe out our way of life?

If the Senate confirms Mukasey without drawing the line on this issue, we’ll have taken one more long step down the slippery slope to the demise of our democracy.

I (or rather “Resident”) got a mailing from my Republican Congressman the other day announcing, among other things, his schedule of Town Meetings that will take place the week after next, assuming that Congress has adjourned by that time. For the first time I’m thinking of attending one of them with the intention of putting in my two cents’ worth. Hence, I’ve been mulling over what I might say, most especially how to limit it to a succinctness that enables me to get my point across before I feel the hook around my neck.

I’m not going to detail here, at least not yet. But in the process of thinking this out has led me to realize that had not invaded Iraq and made such a mess of it, the electorate in 2006 would most likely have retained a Republican Congress, and therefore the assault on the Constitution would not have gained the traction that it has over the past few months. Instead, maybe, just maybe, the country will survive the assault without too much damage to our institutions of democratic government. It’s by no means certain, however, and it’s not going to happen without people taking the responsibility upon themselves to make it happen. One small way I plan to help in this effort is by showing up at Ramstad’s Town Meeting and telling him and everyone else there that this independent, centrist voter who used to vote for him regularly, and did so as recently as 2000, will almost certainly never again vote for anyone running for anything on the Republican ticket. My father’s beloved Republican Party has become a subversive organization, far more dangerous than any such one listed on the infamous Attorney General’s list of the 1950s.

The Party Line that the Punditburo is spewing out in the wake of the Libby prison sentence commutation is the “Clinton did it too” refrain, this time in reference to the allegedly favoritism-based pardon of “fugitive” financier Marc Rich. Jeralyn at Talk Left recalls that the Republican-controlled Congress looked into the matter in hearings that took place in early 2001, one of Rich’s strongest advocates in those hearings was his former attorney, none other than I. Lewis Libby. (Libby did not represent Rich during the Congressional hearings because by that time he was working in the Bush-Cheney administration.)

Jeralyn combs through the hearing transcript to compare the Rich case with Libby’s and highlight their differences, beginning with the facts that Rich was never tried and convicted of anything, and that it’s questionable that he was even a fugitive, since he left the country before an indictment was handed down by then SDNY US Attorney Rudy Giuliani.

Jeralyn also points out that Clinton waived executive privilege and allowed his aides to testify. Will Bush do the same?

Sidney Blumenthal in Salon:

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers. … For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments.

Marcy Wheeler, aka emptywheel of the blog Next Hurrah, has a piece in the “Comment Is Free” section of The Guardian Unlimited that provides the most succinct and clear recap of Plamegate that I’ve seen anywhere, as well as what is likely behind Bush’s commutation of the prison sentence yesterday. She closes out with the following questions that Bush and Cheney no doubt wish to remain unresolved, in order to save their own hides from impeachment at best, and the slammer at worst:

There are many unanswered questions about the roles of the president, the vice president, and Libby in the leak of Valerie Plame’s identity. Did Bush really ask Libby to take the lead on all this? Did the president declassify Plame’s identity so Libby could leak it to the press? Did Cheney learn - and tell Libby - that Plame was covert? Those questions all point squarely at Bush and Cheney personally. But because of Bush’s personal intervention, he has made sure that Scooter Libby won’t be answering those questions anytime soon.

Scooter Libby’s prison sentence was commuted by George W. Bush. Obstruction of justice at the highest of levels.

Former Deputy Attorney General James Comey testified today before the Senate Judiciary Committee and his testimony was explosive. The hearing was streamed onto the internet, and was also live-blogged by Marcy Wheeler (aka Empty Wheel) on Firedoglake.com in three successive posts: First, Second and Third. Below is Wheeler’s summary, at the beginning of her third post, of the most juicy part, aptly described by a commenter as being right out of an episode of the Sopranos, wherein White House staffers, led by then-counsel to the President Gonsalez and chief of staff Andy Card, try to coerce a critically ill, drugged-up Attorney General John Ashcroft into signing off on illegal elements of the NSA’s domestic spying program:

Just to summarize for those who missed it. The bulk of Comey’s appearance was taken by Schumer, getting Comey to explain what happened on March 10, 2004. Office of Legal Counsel had told Comey there was no legal justification for parts of the NSA Domestic Spying Program. Comey briefed Ashcroft on it, and they agreed that they could not reauthorize the program in its current form. When Comey told that to Andrew Card, Card got pissed. That night, Comey got a call from his Chief of Staff, saying Mrs. Ashcroft had gotten a call at the hospital, saying Card and Gonzales were on their way over. Comey rushed to the hospital to try to prepare Ashcroft for what was about to occur. And then, in his drug induced state, Ashcroft refused to reauthorize the program, and said he wasn’t AG anyway, Comey was acting AG.

The program was “reauthorized” anyway, w/o DOJ’s blessing. For two weeks, according to Comey, it operated outside the rule of law (though one day after the hospital visit, Bush told Comey to “do what’s right,” so they started to put it in line with the law).

That night, Comey and a number of other DOJ staffers prepared their resignation, refusing to stay after they had been overridden.

Comey and Robert Mueller met one-on-one, in succession with Bush the following day, and Bush eventually agreed to fix the program.

One point Comey made. The biggest reason why Comey and Mueller were able to get Bush to change the program was because Bush was willing to meet with them privately. The unstated message here is that, so long as Cheney, Addington, Card, and Gonzales were able to mediate between DOJ and Bush, they were able to persuade him to keep the program on its illegal footing.

One more thing. Comey said that one of his staffers, Philben (sp), was denied a promotion because of his role in the hospital meeting.

This evening I’m going to eschew my usual practice of generally avoiding the network television news to see what if and to what extent these hearings are covered. I’m also going to keep an eye on the C-Span schedule to see if/when they will be broadcasting this hearing.