One Nation, Under Surveillance

WiretapWith a Presidential election looming, most Progressive thinkers in the United States seem intent to celebrate the imminent demise of the Republican party. Most un-biased polls show Barack Obama leading John McCain. The Republicans expect to lose a lot of seats in Congress. For all intents and purposes, this seems to be the Democrats’ year.

I think celebration is premature. While it certainly seems to be that the natural political cycle (the Republicans get into office and royally screw things up, followed by the Democrats getting into office and putting things right) is playing out, that does not mean there isn’t plenty of damage that the Republicans can do before George W. Bush leaves office. A good example of that is the House of Representatives passing a bill that constitutes a disturbing revision of the Foreign Intelligence Surveillance Act, part of which essentially grants immunity to the telecom companies from lawsuits over their involvement in President Bush’s program of eavesdropping without warrants after the terrorist attacks of Sept. 11, 2001.

The bill cleared the House by 293 to 129, with near-unanimous support from Republicans (they do so love that wire-tapping) and, surprisingly, substantial backing from Democrats. The bill goes to the Senate next week, where it’s expected to pass by a wide margin. The bill expands the government’s powers to spy on terrorism suspects, and strengthens intelligence officials’ ability to eavesdrop on foreign targets. It also allows them to conduct emergency wiretaps without court orders on American targets for a week if it is determined that important national security information would otherwise be lost. If approved by the Senate, as appears likely, the agreement would be the most significant revision of surveillance law in 30 years.

The agreement settles one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a Federal district court determined that they received legitimate requests from the government directing their participation in the program of wiretapping without warrants. With AT&T and other telecommunications companies facing some 40 lawsuits over their reported participation in the wiretapping program, Republicans described this narrow court review on the immunity question as a mere “formality”.

The proposal — and particularly the immunity provision — represents a major victory for the White House after months of dispute. The bipartisan proposal marks a clear victory for the President Bush and the phone companies.

“I think the White House got a better deal than even they had hoped to get,” said Senator Christopher S. Bond, Republican of Missouri, who led the negotiations.

President Bush said on Friday morning that he was pleased about the deal and the impending passage in Congress. “The enemy that struck us on Sept. 11 is determined to strike us again,” Mr. Bush said, urging quick action by the Senate. Bush endorsed the House plan, which puts Bush’s terrorist-surveillance program under court supervision and would end more than 40 lawsuits against AT&T Inc., Sprint Nextel Corp. and other companies.

“The lawsuits will be dismissed,” Representative Roy Blunt of Missouri, the No. 2 Republican in the House, predicted with confidence on Thursday.

“Those businesses that cooperate are putting their shareholders and employees at stake, and they deserve our support, not multibillion-dollar lawsuits,” Rep. Pete Hoekstra of Michigan, the ranking Republican on the House Intelligence Committee, said.

Both sides trotted out shiney optimism in regard to the bill.

“Our intelligence officials must have the ability to monitor terrorists suspected of plotting to kill Americans and to safeguard our national security,” said Representative John A. Boehner of Ohio, the Republican minority leader. “This bill gives it to them.”

Representative Steny H. Hoyer of Maryland, The Democratic majority leader, wasn’t quite as enthusiastic, calling it the best compromise possible “in the current atmosphere”.

Personally, I keep reading the statements and scratching my head. How could they possibly pass this bill and then try to fool us into thinking it’s a good thing? This bill is a revision of the controversial Foreign Intelligence Surveillance Act, which Congress passed in 1978 after the abuses of the Watergate era. FISA was created to spy on foreign agents in and out of the U.S., including American citizens. Under the law, the intelligence community petitions a secret court for surveillance warrants. It’s a secret court, but it’s a court. It offers some protection of constitutional safeguards against unreasonable search and seizure. After 9/11, however, the Bush administration bypassed even the FISA court. It authorized warrantless surveillance. The bill establishes the FISA courts as the sole authority of surveillance warrants – meaning no more end-runs around the court (sorry, George).

The troubling aspect involves the telecommunications companies. The Bush administration asked the telecoms for Americans’ private phone records. Most complied. Customers are now suing over that invasion of their privacy. Bush wants telecoms to have blanket immunity for actions past and future because it will cover his ass. He says immunity will ensure their cooperation in the war against terror. But the law already permits intelligence agencies to get a warrant for such information. That’s not the problem. Conducting intelligence operations the legal way was already possible. The Government had the tools before 9/11. They didn’t connect the dots. Mostly because the information that was coming in didn’t suit the Bush Administration’s pre-conceived ideas and political agenda. What Bush did, and still wants to do, is authorize warrentless surveillance and then protect his minions from legal accountability.

The lawsuits against the telecoms are the best way to expose the administrations’ spying on Americans. That’s why Bush so desperately wants to provide them with some sort of immunity. He wants to cover his ass. Most of the spin so far has repeated the assertion that this bill does not provide blanket immunity for the telecom companies. They point out that the law requires Bush and the telecoms to offer “substantial evidence” to an independent judiciary demonstrating protection from civil liability – immunity – is merited. But other language says the courts must decide solely on whether the Bush administration told the telecoms the spying was legal. In other words, the courts must find the telecoms’ actions lawful if the president said they were lawful. Hmmm. I wonder how that will play out? Doesn’t the Bush administration claims everything it does is lawful? Torture? Spying on Americans? No problem. All you have to do is recite the mantra of national security and it’s all legal.

The bill doesn’t offer the telecoms – or the Bush administration – “automatic immunity”. But it may offer near-automatic immunity. Immunity dressed up as due process. A puppet court system in which any troubling questions regarding the Constitutionality of the telecom companies spying on Americans by direct order of the President will be trotted through what appears to be due process, but through which the outcome is already predetermined. The proposal allows a district judge to examine what are believed to be dozens of written directives given by the Bush administration to the phone companies after the Sept. 11 attacks authorizing them to engage in wiretapping without warrants. If the court finds that such directives were in fact provided to the companies that are being sued, any lawsuits “shall be promptly dismissed,” the proposal says.

“No matter how they spin it, this is still immunity,” said Kevin Bankston, a senior lawyer for the Electronic Frontier Foundation, a pro-privacy group that is a plaintiff suing over the wiretapping program. “It’s not compromise; it’s pure theater.”

“The telecom companies simply have to produce a piece of paper we already know exists, resulting in immediate dismissal,” said Caroline Fredrickson, the head of the ACLU’s Washington legislative office. She said the bill “does nothing to keep Americans safe and is a constitutional farce.”

“It is not a meaningful compromise, except of our constitutional rights,” said the Washington ACLU.

Perhaps sensing his party’s ass is hanging out, Democratic Majority Leader Harry Reid said the Senate may try to remove a provision from the bill that shields the telecom companies from privacy lawsuits. Even though the attempt may fail, Reid said the vote would allow those opposed to the liability protection to “express their views”.

“I’m going to try real hard to have a separate vote on immunity,” Reid said in an interview to be aired this weekend on Bloomberg Television’s “Political Capital with Al Hunt”. “Probably we can’t take that out of the bill, but I’m going to try.”

Bullshit. The Democrats have abandoned the American people and the principles that saw them swept back into the majority in Congress. They know their hold on power is tenuous, at best. At least until (and if) a Democrat is elected President in the next election. What they’re trying to do is kiss Conservative ass so that they can say “Hey, look. We’re strong on defense,” while leaving the Constitution on the floor outside of George W. Bush’s office for him to use as a doormat. If this were not an important election year, I can’t imagine that the Democrats would have wound up bent over a table with their pants around their ankles.

Harry Reid and other Democrats might try to put a positive spin on this, but we have to call it like it is. They sold out the American people. All in a political effort to shore up their credentials and rob the Republicans of a weapon to use against them. If they’d shot down the bill, this would have been one of the primary issues used against the Democrats in the upcoming election.

Presumptive Democratic President nominee Barack Obama said that he would back the House legislation. In a statement, he said, “given the legitimate threats we face,” it was important to provide “effective intelligence collection tools with appropriate safeguards.” The Illinois senator opposed an earlier proposal, and he said he would also try next week to remove the immunity provision.

They’ll try it so they can say that they tried it. But this is a done deal. We’re screwed.

All I can say is be careful what you say on your telephone, and especially be careful what you write in your e-mails. You never know who’s listening. Thanks to that famously pliable spine of the Democratic party, no one will likely be held accountable if your joke about building a better bomb (which you meant in regard to fumigating the roaches in your house) finds you arrested as “a person of interest”, designated “an enemy combatant” and you’re sent to sit in Guantanamo Bay for five or six years without access to a lawyer, much less exercising your right to due process and a trial.

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