More on ACLU/FISA Suits

Yesterday, Glenn Greenwald interviewed Jameel Jaffer, the Director of the ACLU's National Security Project about the suits the ACLU has filed challenging the new FISA law's constitutionality. He's posted the interview as a podcast here. Definitely worth a listen. Here's a bit from Glenn:

In the podcast, Jaffer details exactly what warrantless surveillance powers the new FISA bill vests in the President, along with the reasons they are so pernicious. He underscores the extraordinary fact that the surveillance program implemented by Congress yesterday does not merely authorize most of the President's so-called "Terrorist Surveillance Program" that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the "target" of the surveillance have any connection whatsoever to Terrorism, nor is there any requirement that the Government believe the "target" is an agent of a foreign power or terrorist organization, or even guilty of any wrongdoing at all. As Georgetown Law Professor Marty Lederman wrote today (emphasis his):

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security

Those claiming that this new FISA law is just some sort of innocuous or mild extension of the Government's surveillance powers under the old FISA law should listen to Jaffer's extremely clear and detailed explanation of what this law really is, how invasive the powers it creates are, and why it tramples on core Constitutional protections.

ACLU Stays in the Fight

Jane Hamsher brings the welcome news that the ACLU is going to file suit against the new, and despicably flawed, FISA bill which, regrettably, passed the Senate yesterday (Kudos to Hillary Clinton for doing the right thing. Obama? Not so much).

Jane passes on this from the ACLU's Executive Director Anthony Romero:

The bottom line is that no president should have the power to monitor the phones and emails of Americans without a warrant. And no president should have the power to pardon companies that broke the law. This bill was not a "compromise," as some in Congress would like you to believe. The only thing they compromised was your freedom.

George Bush will sign the FISA bill into law in a few short days, but that does not mean our fight is over.

Our lawyers are prepared to file a lawsuit challenging this unconstitutional legislation as soon as the ink dries on George Bush's signature. This is why it is so important that all of us add our names to the ACLU's newspaper ad.

In advance of the legal challenge, the ACLU will be running a full-page ad in a major national newspaper in protest, and the first 10,000 folks who sign on will have their names included in the ad itself.

From the ACLU's own press release on the travesty:

Today, in a blatant assault upon civil liberties and the right to privacy, the Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance. The FISA Amendments Act of 2008 was approved by a vote of 69 to 28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times.

“Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.”

The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment’s protection against unreasonable search and seizure.....

...“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill – soon to be law – is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.”

Might I remind y'all what a good and important cause supporting the ACLU is?

FISA Capitulation is Not Leadership, Senator

As anyone who reads this blog (or spends five minutes with me out here in the real world) knows, I am an unabashed and wholehearted supporter of Barack Obama for President. That said, the man is severely disappointing me lately.

It's not his call for more Faith Based Initiatives - though that's troubling, for a variety of reasons, it is not in and of itself a bad thing. As long as there's serious controls in place to prevent federal money from being used to proselytize, or to push a radical religious agenda, and that the recipients have to be held to some standards (like, not discriminating on grounds of faith or "values" or whatever), I'm okay with it in principle.

But his about-face on the issue of FISA is deeply disturbing. First off, as a constitutional law scholar, one would expect Obama to realize the stakes here. We're talking about the very fabric of of American freedom. (For some background, Kagro X at Daily Kos has a really good rundown on the issue here)

Not to mention that it's a losing issue for him in a number of ways. He has been rightfully lauded for his willingness and ability to fight the garbage which has had so many Democrats running in fear for so long. For him to capitulate on this issue reeks of that fear, fear that he'll be painted as somehow soft on terror for choosing the Constitution over the whims of the unitary executive, when in fact he, and we, know this is not the case. The American people are wise to the fear mongering strategy which served the GOP so well in 2002 and 2004.

Worse yet, he's flying in the face of his own very strong arguments, which in no small way contributed to the support he's gained from progressives who understand the stakes of the issue.

TPM Election Central has assembled a compendium of Obama's statements on FISA throughout the primary, and in particular his opposition to immunity for the telecom companies who enabled the Bush administration's flagrant law breaking. It's worth a read, if a depressing exercise. A taste, from December:

"Senator Obama unequivocally opposes giving retroactive immunity to telecommunications companies and has cosponsored Senator Dodd's efforts to remove that provision from the FISA bill. Granting such immunity undermines the constitutional protections Americans trust the Congress to protect. Senator Obama supports a filibuster of this bill, and strongly urges others to do the same."

Put even more strongly, from his own lips:

I strongly oppose retroactive immunity in the FISA bill.

Ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand.

The FISA court works. The separation of power works. We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight, and do not undermine the very laws and freedom that we are fighting to defend.

No one should get a free pass to violate the basic civil liberties of the American people -- not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed.

Indeed. There are lines that should not be crossed, and it was Obama's clear enunciation of that point which helped to win me over to his candidacy. I can't express how much I miss that guy already.

There's a reason the largest group on mybarackobama.com is made up of supporters pleading with him to stand firm to the principles he stated so strongly and so often during the primary season. Running to the center in a general is to be expected, abandoning core constitutional principles is not. If you're a supporter of Obama, I urge you to join this group. At over 14,000 nearly 17,000 members so far, the sheer numbers may make him see the light. Or at least see that his supporters cannot be taken for granted.

We expect him, indeed whomever is President, to do the right thing.

More Opportunity to Connect with Your Senators

The folks at Blue America have set up a handy-dandy tool for you to contact your Senators and urge them to vote against legitimizing Bush administration lawbreaking by supporting the Dodd-Feingold Amendment to strip retroactive immunity for the telecom companies who enabled said lawbreaking from the FISA bill the Senate will vote on after the holiday weekend.

Help Us Support The Dodd-Feingold Amendment to Strip Retroactive Immunity

Next week the Senate will be voting on FISA reform legislation that includes retroactive immunity for telecommunications companies.

Senators Dodd and Feingold have been fighting to stop retroactive immunity - now they need your help.

Call your Senator and ask that they vote against any legislation that includes retroactive immunity for telecoms.

It's time to see the Senate stand up for the rule of law.

Leadership is demonstrated through action.

Ask your Senator to stand for liberty and the law, and vote in favor of the Dodd-Feingold-Leahy Amendment.

This is a critical constitutional issue, and one which will have far-reaching ramifications no matter who controls the government post November.

Do it to it. It'll take about 2 minutes out of your time. Even the laziest of patriots can manage that.