ACLU on the job

Doing the work Congress is unwilling to do, the ACLU once again has our backs on domestic surveillance.

They asked the Foreign Surveillance Court to require that the White House release "orders and legal papers discussing the scope of the government's authority to engage in the secret wiretapping of Americans." The White House has until August 31st to comply.

Thank you to the ACLU and to the FISC for safeguarding our civil liberties! Congress... take notice. You don't have to be lapdogs. In fact, I can't imagine why any of us would vote for lapdogs.

In Unprecedented Order, FISA Court Requires Bush Administration to Respond to ACLU's Request That Secret Court Orders Be Released to the Public (8/17/2007)

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

WASHINGTON - In an unprecedented order, the Foreign Intelligence Surveillance Court (FISC) has required the U.S. government to respond to a request it received last week by the American Civil Liberties Union for orders and legal papers discussing the scope of the government's authority to engage in the secret wiretapping of Americans. According to the FISC's order, the ACLU's request "warrants further briefing," and the government must respond to it by August 31. The court has said that any reply by the ACLU must be filed by September 14.

"Disclosure of these court orders and legal papers is essential to the ongoing debate about government surveillance," said Anthony D. Romero, Executive Director of the ACLU. "We desperately need greater transparency and public scrutiny.We're extremely encouraged by today's development because it means that, at long last, the government will be required to defend its contention that the orders should not be released."

The ACLU filed the request with the FISC following Congress' recent passage of the so-called "Protect America Act," a law that vastly expands the Bush administration's authority to conduct warrantless wiretapping of Americans' international phone calls and e-mails. In their aggressive push to justify passing this ill-advised legislation, the administration and members of Congress made repeated and veiled references to orders issued by the FISC earlier this year. The legislation is set to expire in six months unless it is renewed.

"These court orders relate to the circumstances in which the government should be permitted to use its profoundly intrusive surveillance powers to intercept the communications of U.S. citizens and residents," said Jameel Jaffer, Director of the ACLU's National Security Project. "The debate about this issue should not take place in a vacuum.It's imperative that the public have access to basic information about what the administration has proposed and what the intelligence court has authorized."

FISC orders have played a critical role in the evolution of the government's surveillance activities over the past six years. After September 11, President Bush authorized the National Security Agency (NSA) to inaugurate a program of warrantless wiretapping inside the United States. In January 2007, however, just days before an appeals court was to hear the government's appeal from a judicial ruling that had found the NSA program to be illegal in a case brought by the ACLU, Attorney General Gonzales announced that the NSA program would be discontinued. Gonzales explained that the change was made possible by FISC orders issued on January 10, 2007, which he characterized as "complex" and "innovative." Those orders are among the documents requested by the ACLU.

Since January 2007, government officials have spoken publicly about the January 10 orders in congressional testimony, to the media and in legal papers - the orders remaining secret all the while. They have also indicated that the FISC issued other orders in the spring that restricted the administration's surveillance activities. House Minority Leader John Boehner stated that the FISC had issued a ruling prohibiting intelligence agents from intercepting foreign-to-foreign calls passing through the United States. To a large extent, it was the perception that the FISC had issued an order limiting the administration's surveillance authority that led Congress to pass the new legislation expanding the government's surveillance powers. Yet the order itself, like the January 2007 order, has remained secret.

The ACLU's request to the FISC acknowledges that the FISC's docket includes a significant amount of material that is properly classified. The ACLU argues, however, that the release of court orders and opinions would not raise any security concern to the extent that these records address purely legal issues about the scope of the government's wiretap authority, and points out that the FISC has released such orders and opinions before. The ACLU is seeking release of all information in those judicial orders and legal papers the court determines, after independent review, to be unclassified or improperly classified.

A copy of the FISA court order, the ACLU's motion to the FISC, as well as information about the ACLU's lawsuit against the NSA and other related materials are available online at: www.aclu.org/spying

In addition to Jaffer, lawyers on the case are Steven R. Shapiro, Melissa Goodman, and Alexa Kolbi-Molinas of the ACLU and Art Spitzer of the ACLU of the National Capital Area.

See you in September

Reid: Senate Will Explore Long-Term Fixes To FISA In September

Washington, D.C.—Senate Majority Leader Harry Reid sent the following letter today to Senators Jay Rockefeller and Pat Leahy, encouraging them to develop long-term modernizations to FISA that better serve our national security interests than the law signed by President Bush this month:

August 14, 2007

The Honorable John D. Rockefeller IV
Chairman, Senate Select Committee on Intelligence
Washington, DC 20510

The Honorable Patrick J. Leahy
Chairman, Senate Committee on the Judiciary
Washington, DC 20510

Dear Jay and Pat:

On August 3rd the Senate passed and on August 5th President Bush signed legislation (Public Law 110-55) providing temporary six-month changes to the Foreign Intelligence Surveillance Act (FISA) in light of the Director of National Intelligence’s expressed concerns about a recently-emerged gap in foreign counterterrorism intelligence collection. This issue was given even greater urgency because of the recently-published National Intelligence Estimate on the terrorist threat to the U.S. homeland, which indicates that, after six years of Bush Administration counterterrorism efforts, the threat to the homeland today from Al Qaeda is nearly as great as it was before 9/11.

I know both of you share my disappointment at the process that led to passage of the recent law, and at the flawed outcome itself, which you and I and many others strongly opposed. The temporary authorities in the new law will sunset in six months. While these temporary authorities are in effect, I support all efforts by your two committees to conduct vigorous and comprehensive oversight of their implementation.

I also know that your committees have been working exhaustively on sound options for a longer-term change to FISA, even though your work has been hindered by lack of cooperation from the Administration in providing relevant information. When the Senate reconvenes in September, I fully support your committees working expeditiously together and in a bipartisan manner to develop a longer-term statutory change that better serves American national security interests and comports with the Constitution and proper judicial and congressional oversight. I would like to see the full Senate consider as soon as possible a bill reported by your committees that addresses the deficiencies in the recently-enacted law and any other matter you believe must be addressed.

Thank you for your leadership on these matters.

Sincerely,


HARRY REID

Uh huh.

Hey Harry, look! Our own military spy satellites have now been turned on us!

Until now, only a handful of federal civilian agencies, such as the National Aeronautics and Space Administration and the U.S. Geological Survey, have had access to the most basic spy-satellite imagery, and only for the purpose of scientific and environmental study.

--- snip ---

Access to the high-tech surveillance tools would, for the first time, allow Homeland Security and law-enforcement officials to see real-time, high-resolution images and data, which would allow them, for example, to identify smuggler staging areas, a gang safehouse, or possibly even a building being used by would-be terrorists to manufacture chemical weapons.

--- snip ---

Coming on the back of legislation that upgraded the administration's ability to wiretap terrorist suspects without warrants, the development is likely to heat up debate about the balance between civil liberties and national security.

--- snip ---

In recent years, some military experts have questioned whether domestic use of such satellites would violate the Posse Comitatus Act. The act bars the military from engaging in law-enforcement activity inside the U.S., and the satellites were predominantly built for and owned by the Defense Department.

According to Pentagon officials, the government has in the past been able to supply information from spy satellites to federal law-enforcement agencies, but that was done on a case-by-case basis and only with special permission from the president.

Even the architects of the current move are unclear about the legal boundaries. A 2005 study commissioned by the U.S. intelligence community, which recommended granting access to the spy satellites for Homeland Security, noted: "There is little if any policy, guidance or procedures regarding the collection, exploitation and dissemination of domestic MASINT." MASINT stands for Measurement and Signatures Intelligence, a particular kind of information collected by spy satellites which would for the first time become available to civilian agencies.

According to defense experts, MASINT uses radar, lasers, infrared, electromagnetic data and other technologies to see through cloud cover, forest canopies and even concrete to create images or gather data.

Thanks guys! Should I now wave at the sky every time I go outside to water my tomatoes? Offer the sky a tomato? A cookie? Thank the sky for keeping me safe? Apologize to the sky for the fact that I didn't shower and brush my hair before watering the tomatoes; and that perhaps my appearance in my own yard isn't spiffy and presentable?

You senators have done so much for me -- I'm just not sure how I could ever repay you. Never in our history has a presidential administration - with the capitulation of an opposition congress - done so much to undermine the rights and privacy of the American people. I'm truly honored to have lived to see your historic precedence.

In fact, I feel a song coming on...



See you in September (by Harry Reid & the Senators!)

I'll be awake each and every night
While you're away, I'm afraid to write

Bye-bye, so long, farewell
Bye-bye, so long

See you in September
See you when the summer's through
Here we are (4th amendment, goodbye)
Saying goodbye via FISA (Constitution, goodbye)
Congressional vacation (4th amendment, goodbye)
Is taking you away (Constitution, goodbye)

We were free once but remember
There is danger in the summer moon above
Will I see you in September
Or lose you to a summer vote
(counting the days 'til I'll be with you)
(counting the hours and the minutes, too)

4th amendment, goodbye
Constitution, goodbye
4th amendment, goodbye (bye-bye, so long, farewell)
Constitution, goodbye (bye-bye, so long)

We were free once but remember
There is danger in the summer moon above
Will I see you in September
Or lose you to a summer vote
(I'll be awake each and every night)
(While you're away, I'm afraid to write)

See you (bye-bye, so long, farewell)
In September (bye-bye, so long, farewell)
I'm hopin' I'll
See you (bye-bye, so long, farewell)
In September (bye-bye, so long, farewell)
Well, maybe I'll
See you (bye-bye, so long, farewell)
In September (bye-bye, so long, farewell)

Today's poll on the WSJ:

How well does the U.S. balance national security with individual liberty?

Leans too far toward security Leans too far toward liberty Balances them about right 6307 votes (76%) 917 votes (11%) 1097 votes (13%)

Why they did it

Matt Stoller gave this summary on Open Left, about one possible reason the Blue Dogs - including my own 'representative' - sold us out:

There's a wonderful discussion in the comments of the last post on why the FISA bill passed, on what motivated 57 Democrats to vote to expand Bush's executive authority. In Glenn Greenwald's interview with Chris Dodd, Dodd himself expresses astonishment at the vote. There are really two parts to this question. One is why Blue Dogs caved, and two is why there was no basically no organizing or lobbying done to stop this bill from moving.

Let's talk politicians first. Did these members betray their principles? Were they scared of Bush? It's easy to make the argument that they are afraid of Bush, that they are frightened. And in a sense, it's not an either/or. Still, we must also consider the possibility that these 57 Democrats believe in a more expansive security state and do not support civil liberties. They are not liberals, and they just don't agree with us.

I confess, I am still mystified.

Only Friday I called the office of my own Blue Dog representative, and the aide I spoke with admitted that many, many local people were calling in and demanding a tough stand against this new FISA 'legitimization' of the warrantless NSA wiretapping program.

Yes, she admitted that locals were burning up the phone lines. She also insisted that the congressman 'was checking in all the time to see how his constituents were feeling.' She seemed quite sincere. I really don't believe that she was lying. So I have to wonder... who is this Blue Dog really, and what are his motivations? Do his own aides even really know the answer to this question?

We didn't need this bill to make us 'safe.' The only people who needed these rules for their own safety were the very people breaking laws by spying on the American people.

Everyone agrees we need to watch for terrorists: this is a no-brainer. There is also ample evidence that Al Qaeda doesn't use email, phones or other traceable forms of communication. They certainly don't take out library books.

As we have witnessed ourselves the many partisan abuses and illegalities of this administration, how are we ever to trust Alberto Gonzales with our privacy and safety? He is absolutely and completely partisan; the partisan promotion of his party is behind his every action.

How could Congress have left our Fourth Amendment constitutional protection in this man's hands, after filing impeachment legislation against him and calling for a special prosecutor to investigate him? Are our constitutional rights worth to very little to our representatives? They sold us out to a president with a 24 percent approval rating, and based on absolutely no proof that these wildly excessive domestic spying powers were even needed!

If a man is willing to lie under oath, is there anything he will not do? Yet Congress left town with this perjurer in charge of our citizen privacy. Thank you so very much. And yes, we feel so much safer now.

No, this FISA upgrade was all about spying on the American people, and about getting the White House out of hot water for their prior FISA violations. Why is our Blue Dog protecting the White House instead of us -- his constituents?

This weekend we - Democrats (and likely Libertarians and other mainstream conservatives) were outraged by this latest in a series of betrayals. The outrage continues unabated. But along with the outrage... confusion. What is wrong with these Democrats? What on earth... possessed them to do something this epically disastrous for their party's interests?

I mean - never mind ethics, justice, the Constitution or the best interests of their constituents. What about their own political survival? Because we know that at the very least, they care about getting re-elected.

I confess, I am mystified. Should I even bother to call and ask... why? Perhaps I will. Maybe I can get that same aide on the phone and ask her, beg her for some reason that sounds... plausible. Truthful, even.

Glen Greenwald sums up the outrage from the weekend very well:

I just finished a discussion panel with ACLU Executive Director Anthony Romero which was originally planned to examine his new (superb) book about the work his organization has done for years in battling the endless expansion of executive power and presidential lawbreaking. But the only issue anyone in the room really wanted to discuss -- including us -- was the outrage unfolding on Capitol Hill. And the anger was almost universally directed where it belongs: at Congressional Democrats, who increasingly bear more and more responsibility for the assaults on our constitutional liberties and unparalleled abuses of government power -- many (probably most) of which, it should always be emphasized, remain concealed rather than disclosed.

Examine virtually every Bush scandal and it increasingly bears the mark not merely of Democratic capitulation, but Democratic participation. In August of 2006, the Supreme Court finally asserted the first real limit on Bush's radical executive power theories in Hamdan, only for Congress, months later, to completely eviscerate those minimal limits -- and then go far beyond -- by enacting the grotesque Military Commissions Act with the support of substantial numbers of Democrats. What began as a covert and illegal Bush interrogation and detention program became the officially sanctioned, bipartisan policy of the United States.

Greenwald also interviewed presidential candidate, Senator Chris Dodd. Dodd had a front row seat for the circus that was the White House whipping of the Democrat 'majority.' This interview is quite telling, in that it shows a Democratic party that is still - in spite of their 'majority' - in total disarray:

This afternoon I interviewed Sen. Chris Dodd, who more than any other presidential candidate is attempting to make issues of executive power and constitutional encroachments the centerpiece of his campaign. I'll post the entire transcript and some commentary in a few days, but for now here is part of the discussion we had concerning last night's FISA vote in the Senate (Dodd, along with Obama and Clinton, voted against the FISA bill):

GG: Can you describe what you think it is that motivated 16 of your colleagues in the Democratic caucus to vote in favor of this bill?

CD: No, I really can't . . . We had caucuses during the day, so everyone knew what was there. You had a vote at 10:00 at night, people say I didn't know what was there, then normally I can understand, but we had a caucus during the day. There was a lot of conversation about it.

GG: So this wasn't a Patriot Act case where people can claim ignorance because there was a rushed vote? There was a careful assessment of what the terms in this statute were?

CD: Absolutely. In fact, even during the vote, Carl Levin was sitting there, and Carl said: "look, I want everyone to read this" . . . . Most people know about the Gonzales references and the 180 days -- there is also a section, as Carl pointed out, that basically says that if they can prove reasonably that you're out of the country -- not that you're not a citizen, just out of the country [then they can eavesdrop on you] . . . .

But I wish I had a better explanation. Normally after that, we would be in session Monday or Tuesday, around today, people would be talking about it. So I'm a little stunned, and grasping for some answer here. So I really don't know. . . .

GG: There is this gap in FISA, which everyone, even Russ Feingold, says needs to be filled, which is that if there is a foreign-to-foreign conversation which happens to be routed through the U.S., it requires a warrant -- so why not just say "OK, we fixed this gap and here's our bill and if you veto it, and there's a terrorist attack, then it's your responsibility"?

CD: Hello? Sounds pretty reasonable to me. But part of what this comes down to is that too many people in public life are not secure enough in their own beliefs -- feel vulnerable to attacks by people who will attack you -- and feel unwilling or unable to respond to them with clarity and conviction. And if you lack that clarity and conviction, and if you haven't been through this in the past, then you're likely to be a little weaker in the legs.

I also asked Dodd why Democrats repeatedly engage in the same self-destructive behavior -- refusing to take a hard-core principled stance against the administration, and instead capitulating just enough to look like losers, but -- despite the capitulation -- still allowing the vote to be used against them. As always (see e.g., Iraq War Authorization, warrantless eavesdropping, Military Commissions Act), they capitulate in order to prevent the vote from being used against them, even though it ends up being used against them anyway because so many of them vote (with futility) against it, but do so without ever fighting for, explaining or defending their position.

I also asked him why, when they were in the minority, the Democrats were so afraid to filibuster anything, even something as drastic as the Military Commissions Act or the Alito nomination, whereas the Republicans run around filibustering everything they can find and don't care at all about being called "obstructionist." Why are the Republicans so aggressive with using their minority tools to block all Democratic initiatives whereas Democrats failed to filibuster for years?

Dodd, by his own candid admission, has no good explanation for the Democrats' behavior, which repeats itself endlessly. He has no good explanation as to why so many of his Democratic colleagues are so deeply afraid of being attacked by one of the weakest presidents in modern American history.

Although Dodd's convictions about the constitutional issues are impressively authentic and come from a place of real passion, and although he agreed with most of the criticisms voiced regarding the timidity of Congressional Democrats, I found the interview rather dispiriting, to put it mildly. That was not due to Dodd per se, but because it is clear that Beltway Democrats have no real strategy for doing anything differently or even any real awareness that something different is necessary.

I guess the time has come for that phone call to my congressman's office. I can't wait to hear the excuses.