War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace. - James Madison (1793)
Well now.... Some Democratic "leaders" in Congress (and yes, that term really does need to be in quotes here) have arrived at a "compromise" with the White House on revising FISA to include retroactive immunity for the telecomm companies who participate in the White House's unconstitutional and illegal warrantless wiretapping program. The compromise? Its quite simple really. TPM:
All they must do is provide a federal district court judge with "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful,
Georgetown Law's Marty Lederman fills in the details:
The Democrats worked long and hard to include in the bill a provision (stating that FISA and other specified statutes are to be "the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted") that is, for all intents and purposes, a reenactment of the current 18 U.S.C. 2511(2)(f), which has been the backbone of FISA for 30 years.
The options, apparently, were to have this key provision stripped from FISA, as the Administration wanted (which would have made an incredibly permissive bill basically hortatory), or to retain it and "reaffirm" it. After a long, hard battle, the Dems prevailed on that one. Whew. Close call, that.My favorite bit, however, is the Pelosi expectation that "the language would prevent Mr. Bush, or any future president, from circumventing the law." Yeah, right -- just as it "prevented" President Bush from authorizing wholesale violations of FISA from 2001 until 2007. (Note to Speaker Pelosi: President Bush's official view, vigorously defended by the Department of Justice, is that the "exclusive means" provision is unconstitutional, and can therefore be disregarded. FYI)...
Under current law, telecoms are legally forbidden from assisting the government's surveillance of their customers unless they receive a court order or receive from the Attorney General a particular sort of certification stating that the surveillance would be consistent with FISA. See 18 U.S.C. 2511(2)(A)(ii)(B) (certification must be "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required"). Apparently the telecoms in some "TSP" cases did not receive the proper certification (because, in fact, the surveillance violated FISA), and in at least one case, the certification came from the White House Counsel rather than the AG (in early 2004, when Acting AG Comey refused to approve the surveillance after the Ashcroft hospital visit). Thus, it appears that the telecoms have violated FISA -- or so it is alleged -- and certain parties have brought suit asking the courts to so hold. The new provision does not appear to repeal the existing prohibition, or cause of action. Instead, it requires the courts hearing such actions to dismiss them -- regardless of the merits -- upon a certification from the AG or his surrogate that some other form of non-FISA-compliant "written request or directive" was provided to the telecom
In other words, so long as they can produce a permission slip from the government, their actions will be considered to have been legal. It doesn't matter what the law actually says. No no. All that matters is that they have a slip from the Attorney General, the very same Attorney General who authorized the program in the first place, and they get off scott free. Because, after all, as Nixon once said, if the president orders it, it must be legal. Laws? Laws are for little people! The president, he is our king! So as it is written, so let it be done!
Laura Rozen asks:
Doesn't that actually endorse and extend to private actors the Nixonian view that if the president says it's legal, it's legal, regardless of what the law says and the Constitution says? Wouldn't that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?
Absolutely, it does. And that's the point here, actually. The Congress is enshrining into law the idea that the president can order private actors - citizens or corporation - to disregard clearly established law whenever he or she sees fit. All that is needed is for a complaint Attorney General to write the groups involved a permission slip, and the president is set!
But don't take my word for it. Here is how Sen. Kit Bond, a Republican from Missouri, explained it:
When the Government tells you to do something, I think you all recognize, uh, that that is something that you need to do.
That is the principle this deal will enshrine into law. If the government tells you to do something, you need to do it.
Repeat that to yourself 5 times. Let that really sink in. If the government says you must, you must. Never mind the law. Never mind the constitution. Never mind anything. Whatever the king wishes, the king gets.
And those guys we convicted in Nuremburg? I guess its time to pardon them, because this was precisely, exactly, literally their defense. The gas chambers? Sure, they operated them, but... but...but... They were just following orders!
This isn't a compromise. It is a capitulation. And everyone knows it:
With some AT&T and other telecommunications companies now facing some 40 lawsuits over their reported participation in the wiretapping program, Republican leaders described this narrow court review on the immunity question as a mere "formality."
"The lawsuits will be dismissed," Representative Roy Blunt of Missouri, the No. 2 Republican in the House, predicted with confidence.The proposal -- particularly the immunity provision -- represents a major victory for the White House after months of dispute. "I think the White House got a better deal than even they had hoped to get," said Senator Christopher Bond, the Missouri Republican who led the negotiations.
The White House immediately endorsed the proposal, which is likely to be voted on in the House on Friday and in the Senate next week.
Now just to be perfectly clear here, it does not in any way lessen my outrage to think that these powers will be handed over to an Obama administration in less than a year. Good administration or bad, Democratic or Republican White House, I don't care. This isn't about trusting one individual or political party over another. This is about preserving the rule of law, defending the constitution, and protecting the Bill of Rights.
Josh Patashnik gets it:
It's pretty clear that the question of whether the telecoms end up having to pay damages is something of a sideshow. The lawsuits are such a big deal mainly because they appear to be the last remaining way of airing the details of the program in court and ascertaining whether it violated the law. (No individual can demonstrate that they were a target of the surveillance, and courts have ruled that such a demonstration is necessary in order for a plaintiff to have standing to challenge the program.) That's off the table now, which is quite disappointing. The government will at least have to document to the courts the assurances it provided to telecoms, which is a plus. But according to the text of the legislation (pdf--scroll down to page 91), the courts will be prohibited from releasing any documents whose publication the attorney general declares would threaten national security. So you can bet that none of them will ever see the light of day, and there will be no informed public debate on the legality of the program. All in all, the Democrats pretty much caved on the question of judicial review of the wiretapping program.
No let's be clear about something here: this isn't "the Democrats" caving. Just as was the case before the war in Iraq, there are some Democrats who oppose this foolish nonsense, and others who favor it. Republicans, by contrast, are nearly unanimous in their full-throated support for this monstrosity. And if the Dems who are supporting this think that we in the netroots aren't taking names and keeping notes, they are fools.
Kos:
When we started this "netroots" thing, we worked to get "more and better Democrats" elected. At first, we focused on the "more" part. This year, we're focusing a bit more on the "better" part. And in 2010, we'll have enough Democrats in the House to exclusively focus on the "better" part.
That means primary challenges. And as we decide who to take on, let it be known that this FISA vote will loom large. Voting to give telecommunication companies retroactive immunity may not guarantee a primary challenge, but it will definitely loom large.We kicked Joe Lieberman out of the caucus. We got rid of Al Wynn this year. Those were test runs, so to speak. We've got a lot more of that ready to unleash in 2010.
Bluster? No. Because a diverse coalition of bloggers and civil libertarians is rapidly coming together to fight back. Even if we lose this fight in the House and Senate, we will carry it on into the general election. These people will pay for this. They have to.
Accountability is one of the most important foundations of democracy. It is time we start holding our elected representatives responsible for rubber stamping the most grievous aspects of the Bush Regime's agenda. Surely the plans for retroactive immunity for Bush cronies inside his regime and for cronies in the telecom corporations who broke the law by spying on American citizens without warrants, is outrageous and needs to be brought before the bar of Justice. All the money raised on this page will go to fund accountability for congressmembers supporting retroactive immunity and warrantless wiretaps. You can read more about the campaign here, here and here.
After Dick Gephart betrayed the majority of House Democrats and plotted with Bush, Cheney and some Blue Dogs to thwart the will of the majority and rubber stamp Bush's decision to attack and occupy Iraq, he was forced out of his role as Democratic Leader. Steny Hoyer deserves the exact same fate.
Give whatever you can, even if it is only $5. There is strength in numbers, so every name we can add to the list will help. We cannot let this stand.
Hilzoy makes clear the stakes far better than I ever could:
We have a very good Constitution. It's not perfect -- I'd eliminate the electoral college in a heartbeat -- but it's very good. And the fact that we have it is an astonishing piece of good fortune. It would have been so easy for the framers of the Constitution to turn out to be a bunch of mediocre hacks, or for Washington not to have stepped aside after his second term, or for the union to have fallen apart in its infancy. It would have been easy for the country not to have survived the Civil War intact, or for FDR to have initiated a tradition of court-packing (leaving us with a 67 member Supreme Court, full of all the additional justices required for each new President to get a sympathetic majority), or for any number of other crises to have permanently disfigured our Constitutional system. Instead of which, we have a workable political system.
Moreover, it is a system based on individual liberty. We have never implemented that system perfectly, and for most of our history we were nowhere close to perfection. Our Constitution enshrined slavery, and even when we had fought a civil war and granted theoretical freedom to African-Americans, we did not bother to do the difficult work of actually making sure that those freedoms were more than theoretical. We were content, for far too long, to allow our fellow citizens to be deprived of the most basic civil rights, lynched, and held in what might as well have been slavery. Periodically, we have allowed the government to curtail our freedoms, generally under the influence of fear. But our Constitution has allowed us, slowly but surely, to address the challenges we have encountered, together, as one country. Moreover, even at our worst, it has held up an ideal for us to aim at, and reminded us of how far we fall short of what we should be. And while for much too long we did not secure the freedoms guaranteed in our Constitution to everyone, the arc of our history has, in the words of Martin Luther King, bent towards justice.But there is nothing inevitable about this. The Constitution is, after all, just a piece of paper. It cannot stick up for itself. It needs defenders. It has put in place a structure that makes it more likely that it will find some: when one branch of government exceeds its limits, another acquires an interest in checking it; when all branches conspire together, the people can demand that their rights be respected. No Constitution can do more than this. And this cannot possibly be enough if the people who should defend the Constitution are unwilling to do so.
Our form of government is a gamble on the proposition that while people will, from time to time, be too preoccupied with their own affairs, or too lazy or venal, to protect the Constitution, we are a decent enough people not to let threats to our form of government persist long enough to destroy it. As I said, nothing ensures that this will be true. Fortunately, every citizen is in a position to help ensure that it is. All we have to do is notice, and care, and act. Protecting our Constitution is, always, up to us.
***
Our system of government is built on the separation of powers: Congress passes laws, the Executive implements those laws, the Courts interpret them, and all of us, including the President, obey them. This system is currently under threat. Our President and his advisors believe three things which are wrong individually, but disastrous when combined. These are:
(1) The President can do whatever he wants during wartime, whether or not it violates the laws.
(2) It is always wartime, and the battlefield is everywhere, both at home and abroad.
(3) The President has the right to keep what he is doing completely secret. No one -- not citizens, not Congress, not anyone -- has the right to force him to reveal what he and others in the Executive are doing.
As I said, each of these is wrong individually, but the combination of all three is absolutely toxic. And the secrecy is crucial: if no one knows what the Executive is doing, no one can challenge it.
The FISA controversy puts all three principles together. The President claims that the War Powers he discerns somewhere in Article II of the Constitution give him the right to violate the FISA law, and to enlist the help of the telecoms. The Democrats offered a long time ago both to grant the basic fixes in the FISA law that the President wants, and also to allow the government to substitute for the telecoms in the various lawsuits against them. The latter amendment would have allowed the lawsuits to proceed without the telecoms being in jeopardy. It failed, with only one Republican voting in favor.
If the FISA "compromise" passes, it will mean that a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law. Given a President who claims to believe, as Bush does, that whatever he wants to do is legal so long as it is an exercise of his War Powers, this is a recipe for disaster. Moreover, these lawsuits are the only way in which anyone can get redress, since the courts have ruled (pdf) that no one has standing to sue the government unless she can show that her communications have been intercepted. It's also the only way in which citizens can discover what this program involves, so long as Congress refuses to do its job -- not that Congressional investigations would necessarily have helped, since the administration has shown very little willingness to share information about this program with Congress.
***
George W. Bush and his administration have done everything they can to undermine the separation of powers. This bill would retroactively say that that's OK, and would in addition prevent us from suing corporations that went along with the President's request to break the law. That is a request he has no right to make, and legal liability is the best way of ensuring that he does cannot do in practice what our Constitution forbids him.
It's our Constitution. It's up to us to defend it.
Nothing is guaranteed to us. Nothing. What we have we have only because previous generations were willing to do the hard work necessary to build it. Along the way, millions of them literally gave their lives to protect and defend our way of life. Should we abandon all of that in a moment of fear and panic, we won't just have dishonored ourselves, we will have dishonored them too. Our ancestors only live on in us. What we do today echoes both forwards and backwards through time.
Stand up. Do something. Call your congressman and Senators. Donate to the cause. Volunteer. Protest. Do something.
UPDATE: The bill has passed the House:
With less than 24 hours to read -- let alone understand -- what they were voting on, the Democratic-controlled House just passed the "compromise" FISA/telecom amnesty bill by a vote of 293-129. I'll post the link to the roll call when it is available. As always, Republicans supported the bill virtually in lockstep, while Democrats split (105-128). Barack Obama managed not to express a view one way or the other prior to the vote (and still hasn't). Nancy Pelosi spoke in favor of the bill, so the whole top layer of House Democratic leadership supported the bill.The roll call vote is here. Of the Republicans: 188 voted YES, and a grand total of 1 -- a single lone soul (Rep. Tim Johnson of Illinois) -- voted NO (Ron Paul wasn't present). For the Democrats: 105 voted YES and 128 voted NO.
The Democrats voting YES included all of our current targets -- Hoyer, Barrow and Carney -- as well as Pelosi, Hoyer, Emanuel and House Intelligence Committee Chairman Silvestre Reyes. Voting NO -- to their credit -- were Democratic Senate candidates Rep. Tom Allen (Maine) and Rep. Tom Udall (New Mexico).Judiciary Committee Chairman John Conyers also voted NO, along with most of the Congressional Black Caucus. That's not hard to understand why. As Rep. Barbara Lee said today:
"This bill scares me to death and I urge a no-vote," said Rep. Barbara Lee (D-CA), co-chair of the House's Progressive Caucus.She compared the bill to the era of former FBI head J. Edgar Hoover. "We already remember how Dr. [Martin Luther] King and his family were the victims of the government's most shameless wiretapping. We must never go down this road again."
That's exactly the road on which the Democratic leadership in Congress just put the country once again, and that also happens to be the theme of our first set of ads against Hoyer and Barrow, to be unveiled very shortly.
Where is Obama on this? Why is he so silent? When will he speak up and stop this madness?
Lead, Senator. Lead.
