Democrats, Obama roll over: FISA bill passed by Senate

[Noble Ire]

His platform? Oh there certainly is. But if he is willing to back down on the 4th amendment, I cant trust anything that comes out of his mouth.

And so you'll sit at home in November and do nothing, effectively supporting a man whom you know will conduct his administration as though Bush was still in office? I can understand why you feel betrayed by Obama's vote; although I defended the action, I never said that I approved of cloture, or any other part of the bill save the immunity. Nevertheless, whatever Obama's reasons, I do not feel disgruntled enough by this incident to believe that everything he's supported and said has been a lie. Even if Obama carries through with only a fifth of what he's promised to do, I'll be there to support him when the election comes.

He could have done that any number of ways, without punching the 4th amendment and the rule of law in the balls. It is one thing to SAY something to get elected during the general election. It is another to vote for cloture and then vote on a motion that is blatantly unconstitutional that the center indeed does not support.

I'm not privy to the political reasoning of Obama or his advisors; as I implied before, I'm not even sure if this move was political at all, although I can see how it may have been.

Where the fuck is the compromise? The Conservatives got everything they wanted, they got telecom immunity, they got their unconstitutional warrantless wiretaps, they got everything. What did they actually concede for this so-called compromise?

I was referring, albiet vaguely, to the trio of failed amendments that he voted for; clearly, his heart was not fully in the bill. However, I will not say that that excuses him for ultimately voting for the bill, and especially not for his decision to aid in cloture. You seemed to have inferred from my previous post that I approve of wire-tapping; I most emphatically do not. Indeed, I am confused as to why Obama approved the bill at all, and I await an explanation from him, if one has not already been provided.

No. THis shit is illegal. There is no "national crisis" short of foreign armies on our soil that justifies is. And the telecoms knew it. They consulted with lawyers before they made the decision to comply. Those lawyers undoubtedly told them that there were privacy laws in place specifically to avoid that intrusion. They knowingly participated in a criminal action perpetrated by the executive branch. A felony offense. They should be nailed to the wall. But instead, they are given a pass. Fuck that.

I was unaware that the precise circumstances around the governmental request and the corporations’ legal response were publically known. Could you provide a link to that information?

The bill of rights does not evaporate when we are threatened.

All the feds had to do was get warrants for specific individuals they wanted to target, with reasonable suspicion of terrorist activity. Hell, they even have a secret fucking court for the purpose. But no. They couldnt even bother with that. Enough is enough. Our civil liberties have been pissed on for the last 8 years, to the point that the nitrogen compounds have corroded the paper the bill of rights is printed on. And now, not only are we giving the federal government unprecedented surveillance power, the power to screen our every phone call or email through word filters and draw up watch lists, but we are giving the people that colluded with them when it WAS illegal (and constitutionally it still is) immunity. No. This has to stop. Otherwise we will edge closer and closer to fascism.

Once again, I never said that I approved of the government's wire-tapping and data mining programs. I find them repellant, and I think that every involved member of the administration should be prosecuted to the last extremity permitted by law. However, I am still inclined to shift blame from them. This administration has shown an excessive proclivity for deception and strong-arm tactics, and unless evidence to the contrary is provided, I am inclined to believe that the companies acted in "good faith" under the rationale provided for them

[LMSx]

Some background:

On July 20, 2006, Judge Vaughn Walker released an order denying AT&T's request for a motion to dismiss one of the NSA/telecom lawsuit. His reasoning:

Because the alleged dragnet here encompasses the communications of "all or substantially all of the communications transmitted through [AT&T's] key domestic telecommunications facilities," it cannot be reasonably said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T's alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because "the very action in question has previously been held unlawful," AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

Accordingly, the court DENIES AT&T's instant motion to dismiss on the basis of qualified immunity

Link (page 68)

And in the recent Al-Haramain ruling:

Of special relevance to the court's present inquiry, Congress included in the FISA bill a declaration that the FISA regime [. . .] were to be the "exclusive means" by which domestic electronic surveillance for national security purposes could be conducted:

procedures in this chapter [. . .] shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic comunications may be conducted.

This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.

Link (page 12-13)

Multibillion dollar telecom companies with phalanxes of lawyers pleading ignorance to the almighty authority of the attorney general sounds....dubious.

[Glocksman]

Obama has been pissing on everything that won him the nomination. I'm still going to vote him, but only because any democratic candidate would be better than John "I love waterboarding" McCain.

Agreed.
I'm not defending Obama's vote.
I am simply stating that I understand why he did so WRT the bullshit FISA legislation.
As for the rest of his alleged 'flip-flops', I'll say the same thing I tell my dittohead buddy when he brings up the latest RNC talking points.

Namely that he's paying attention to the spin and not to what Obama has been saying from day one about 'leaving Iraq as carefully as we carelessly went in'.

Obama isn't my ideal candidate by any means (my personal ideal would be a cross between Kucinich and Fred Thompson ) but he is light years better than John McSame.

[Feil]

Just sent an e-mail to the Obama Campaign website saying "wtf". I wonder if I'll get a response.

[Feil]

Ghetto edit: not literally "wtf"

[Qwerty 42]

Is it to early to buy "Feingold 2012" shirts yet?

[Qwerty 42]

FAKE EDIT: I'm still voting for Obama in November until he does something unscrupulous and McCain doesn't, but I won't pretend this doesn't harm my opinion of him. "Change We Can Believe In" indeed.

[Feil]

Dear Brian,

Thank you for contacting Obama for America. The volume of messages we're receiving has gone up since Barack's victory in Iowa. While we cannot respond individually to over a thousand messages per day, the level of interest and thoughtfulness of the comments reflected in these communications are very gratifying. Your thoughts on our campaign and America's future are greatly appreciated.

Individual citizens like you are the foundation of this campaign.

Sigh. Didn't expect anything else, but you know us Obama supporters and our damn fool notions of Hope....

[Alyrium Denryle]

And so you'll sit at home in November and do nothing, effectively supporting a man whom you know will conduct his administration as though Bush was still in office?

Who knows, I might vote green, or write in Denis Kucinich, or Al Gore. If I see evidence that this move was not completely duplicitous, I might reconsider, but as it stands now, I cannot vote for anyone who voted for this abomination. If he intends to file criminal charges and says so in public, that would be a start.

I was referring, albiet vaguely, to the trio of failed amendments that he voted for; clearly, his heart was not fully in the bill.

Then his vote should not have been either. I am going to be blunt. The man is a constitutional law professor, he knows better, by definition. It does not matter what he tried to do, when the chips were down, he folded. He folded despite his promises to us, he folded despite his principles and his oath to defend and uphold the constitution.

He failed. He failed knowingly, and willfully. There is no excuse.

I was unaware that the precise circumstances around the governmental request and the corporations’ legal response were publically known. Could you provide a link to that information?

Not released, though the telecoms consulting their lawyers before complying is a fair assumption.

[Durandal]

You know, I wonder if the state of California could bring charges against AT&T for illegal surveillance. After all, it's against the law in this state to record a conversation without the consent of both parties involved, and the immunity only covers civil court.

[Noble Ire]

Who knows, I might vote green, or write in Denis Kucinich, or Al Gore. If I see evidence that this move was not completely duplicitous, I might reconsider, but as it stands now, I cannot vote for anyone who voted for this abomination. If he intends to file criminal charges and says so in public, that would be a start.

Don't get me wrong, I am anxious to hear Obama's explanation, and if it isn't adequete, my opinion of him will be seriously compromised. But even in that case, I will vote for him, if not for the man, then for what he and his party are supposed to stand for, tainted by the current political climate as they are.

He failed. He failed knowingly, and willfully. There is no excuse.

If no other explanation is provided, I can only hope that this is a simply another political calculation, one that he intends to undo when in office. Quite frankly, temporary dishonesty is better than "Four More Years." I have to believe that, deep down, Obama holds our constitutional rights as dear as you or I.

[Flagg]

Give me a break, the explanation is simple: If there is a terrorist attack before the election he didn't want to have the stalled FISA legislation hanging around his neck like a fucking albatross. Because we all know McCain and the rest of the Republican gaggle would have been pointing to it and screaming that the Democratic congress and Obama in particular should be brought up on treason charges.

[Alyrium Denryle]

Give me a break, the explanation is simple: If there is a terrorist attack before the election he didn't want to have the stalled FISA legislation hanging around his neck like a fucking albatross. Because we all know McCain and the rest of the Republican gaggle would have been pointing to it and screaming that the Democratic congress and Obama in particular should be brought up on treason charges.

And the chances of that are.... what now?

[Cecelia5578]

Give me a break, the explanation is simple: If there is a terrorist attack before the election he didn't want to have the stalled FISA legislation hanging around his neck like a fucking albatross. Because we all know McCain and the rest of the Republican gaggle would have been pointing to it and screaming that the Democratic congress and Obama in particular should be brought up on treason charges.

And the chances of that are.... what now?

That is almost irrelevant. Democrats have been painted by Republicans as soft on national security issues since the 1968 election, and its very instinctual for Democrats to go along with whatever it is that Republicans propose, to try and insulate themselves from criticism as being elite, effete, out of touch lefties who hate America.

Plus, Obama's a cynical bastard.

[Durandal]

Here's an interesting thought. The Republicans blathering on about how the government needs these insane new powers to stop terrorist attacks are the same ones (generally) that support Bush's view on a unitary executive. So they support the notion that he can basically whistle up surveillance whenever he wants, in defiance of the Fourth Amendment.

So given that, 9/11 is pretty much entirely George W. Bush's fault. He could have started ordering massive surveillance his first day in office (which is apparently a panacea to stop all terrorist attacks ever), but he didn't. So he personally dropped the ball on that one.

[Patrick Degan]

I'm sure political calculation does indeed enter into this: Obama has just protected the telcos, which is a powerful argument for them to support him, and cuts the ground out from under any argument McCain might have hoped to make behind closed doors that Obama was out to "get" them.

[Eulogy]

So does this mean that smart/informed Americans are gonig to stop using the telcunts' services, and that even more people get angry at the Fascist States of Amerikkka? Because this really sounds like a good way to increase treason incidences.

Not that the cowardly felchers would know that.

[LMSx]

Give me a break, the explanation is simple: If there is a terrorist attack before the election he didn't want to have the stalled FISA legislation hanging around his neck like a fucking albatross. Because we all know McCain and the rest of the Republican gaggle would have been pointing to it and screaming that the Democratic congress and Obama in particular should be brought up on treason charges.

This weak on terror meme will never go away, so Democratic politicians better discover soon how to shoot down that bullshit while clearly explaining that Constitutional rights are a good thing. Are we supposed to just accept and cower in fear of whatever tantrums Republicans throw?

The whole idea of telecoms needing immunity is 100% at odds with the concept that whatever they did was legal and fine. If it was legal, they wouldn't have desperately lobbied for civil immunity because it'd be evident to a judge that whatever they did was justified.

Furthermore there couldn't be any issue with FISA that made it imperative for the telecoms to break the law for patriotism for the extent of time they did, because FISA has been updated several times since 9/11 (most notably with the Patriot Act). The NYT article describes a program running from 9/01 to late 2004. If we're extremely charitable and assume there was a legitimate problem, then any illegal wiretapping should have stopped in October 2001 when Congress signed the Patriot Act and updated FISA. They were certainly willing to give Bush everything he wanted then.

This is all about Bush being a king. We should punish those dumb enough to buy into that idea.

[Darth Wong]

If only some way could be found to ban people who drive pickup trucks from voting. That would cut out a big chunk of these people who think the "soft on terror" argument makes a lot of sense. For people who hang confederate flags on their vehicles or homes (or who wear them on their clothing), their votes could be counted negatively.

[Eulogy]

The ironic thing is, the worst way to fight terrorism is by making people hate you and your cause even more, and that is exactly what the maladministration has been doing for the past eight years.

This bill will anger even more smart and decent people, people who might start their own form of vigilantialsm. Meaning, of course, that the so-called "War On Terror" has failed spectacularly.

But we already knew that.

[Metatwaddle]

You know, I wonder if the state of California could bring charges against AT&T for illegal surveillance. After all, it's against the law in this state to record a conversation without the consent of both parties involved, and the immunity only covers civil court.

I'm not from California, but I'm interning in Washington and I might run into a couple of people with the ACLU tomorrow (though they might not be lawyers, just lobbyists and interns). That sort of thing would probably be right up their alley. I'll ask if I get the chance.

[Pablo Sanchez]

I was the one who said it first: Obama is just a Machine Politician Democrat up to his eyeballs in connections with Daley.

Do you have any evidence for this assertion apart from the fact that they are both Democrats from the state of Illinois? As a result of this proximity they certainly have some ties, and they have probably made some quid pro quo arrangement (probably exchanging Daley's early endorsement of Obama for his brother's placement on the Obama campaign and possible later support for the same's purported run for governor of IL). But apart from this flimsy stuff, what have you got?

The party designations are reversed this time, but how much else has changed? Probably very little.

Again, thanks for making a bald assertion that is pretty much entirely a non sequitur. Obama is a first-term Senator. Nixon was a 22-year veteran of the highest levels of the GOP, including a prominent role in HUAC, two terms as Vice President, a run for President, and a run for governor of California. Apart from some crap about how both of them promised a plan but it seemed kind of vague, what do they have in common?

[Ace Pace]

Beyond political calculations, the more I think about the issue of immunity, the less it bothers me. Put aside the clearly inept, bellicose, and subversive character of the current administration; it is still the head of the United States government, and thus has distinct responsibility to uphold and interpret the law.

Oh give me a break. This law is more than just immunity.
Ars technica on FISA.

Telco immunity is the icing, not the cake

Last month, the House of Representatives passed the FISA Amendments Act of 2008, Congress's latest response to President Bush's demands for expanded eavesdropping authority. The Democratic leadership, seemingly intent on avoiding real debate on the proposal, scheduled the final vote just a day after the bill was introduced in the House. Touted by Democratic leaders as a "compromise," it was supported almost unanimously by House Republicans and opposed by a majority of Democrats.

The 114-page bill was pushed through the House so quickly that there was no real time to debate its many complex provisions. This may explain why the telecom immunity provision has received so much attention in the media: it is much easier to explain to readers not familiar with the intricacies of surveillance law than the other provisions. But as important as the immunity issue is, the legislation also makes many prospective changes to surveillance law that will profoundly impact our privacy rights for years to come.

Specifically, the new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it. So the telecom immunity stuff is just the smoke; let's take a look at the fire.
The importance of judicial scrutiny

The most fundamental question in the FISA debate is whether judicial oversight will be required when the government spies on international communications originating on American soil. FISA has never limited spying on purely foreign communications, but under current law, the government must obtain court approval to tap a phone line or fiber optic cable in the United States, even if the other end of the communication is abroad. An application for a FISA warrant must specify the person or organization being targeted and present evidence that the target is an "agent of a foreign power," such as the Chinese government or Al Qaeda.

The Bush administration has chafed at these restrictions, insisting that the president has the inherent authority to eavesdrop on suspected terrorists without court oversight. Director of National Intelligence Mike McConnell argues that that the FISA process is so cumbersome that it impedes the intelligence community's efforts to spy on terrorists.

Civil libertarians disagree, noting that FISA sets a lower bar for approving surveillance than the process for obtaining ordinary criminal warrants. And in emergency cases, FISA allows the government to begin spying immediately and seek a warrant after the fact. Most importantly, civil liberties groups emphasize that without judicial oversight, there is no way to know if the government is respecting any limits that Congress establishes.

Consider, for example, the case of National Security Letters, administrative subpoenas that the Patriot Act allows the FBI to issue without court oversight. Last year a government audit last year found hundreds of cases in which the FBI had issued NSLs without following even the permissive rules of the Patriot Act. Civil libertarians warn that similar corner-cutting is inevitable if the NSA is allowed to choose eavesdropping targets without judicial scrutiny.
No individual warrants for international calls

When it comes to judicial oversight of domestic-to-foreign calls, the legislation the House passed last month is an unambiguous victory for the White House and a defeat for civil libertarians. The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge. Moreover, the judge's review of the government's "certification" is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification "contains all the required elements," that the targeting procedures are "reasonably designed" to target foreigners, and that minimization procedures have been established.

Crucially, there appears to be no limit to the breadth of "authorizations" the government might issue. So, for example, a single "authorization" might cover the interception of all international traffic passing through AT&T's San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly "targeted" at foreigners.

The House legislation also drastically extends the timeline for reviewing surveillance activities, potentially allowing the government to commence eavesdropping and then drag out judicial review for months. Under existing law, the government must obtain judicial approval within 72 hours of the start of emergency wiretapping. In contrast, the judicial review of "certifications" can stretch out as long as four months. After beginning eavesdropping, the government has a week to submit its "certification" to the FISA court, which has 30 days to review the application. If the judge finds problems with the certification, the government can continue eavesdropping for another 30 days before it is required to comply with the order. And the government can buy still more time by filing an appeal to the FISA Court of Review. The appeals court may take as long as 60 days to make its decision, and the government will often be allowed to continue eavesdropping throughout the process of judicial review. This means that in many cases, the government will have completed its spying activities long before the courts reach a decision on its legality.
No "targeting" Americans

The legislation does provide modestly enhanced protections for Americans living overseas. The "authorizations" described in the previous section are only available when they "target" those who are not American citizens or legal residents. When the target of an eavesdropping program is an American, the government must satisfy more stringent requirements, including the traditional requirement that the target is an "agent of a foreign power." The surveillance also must cease within seven days if judicial approval for it is not forthcoming.

This section is a modest restriction on the government's prior eavesdropping powers. Traditionally, FISA did not govern purely overseas eavesdropping activities, even if they targeted American citizens. Under the new legislation, the government will need court approval to "target" Americans overseas, even when the surveillance is conducted overseas.

However, as a practical matter, this enhancement of Americans' privacy rights may prove extremely limited. The government may not "target" Americans under the broad "authorizations" discussed in the previous section, and in some cases the government may discard information obtained about Americans as part of the required "minimization" procedures, but the government would retain significant latitude to decide which information it retains. The paradoxical consequence is that broader wiretapping orders may be approved more easily than narrower ones. For example, the government could not unilaterally "authorize" the "targeting" of a particular San Francisco resident's international communications. However, it could "authorize" a dragnet surveillance program that intercepted the international communications of all San Francisco residents under the pretext that it was "targeting" any foreign terrorists who might happen to communicate with San Francisco residents.

This is particularly troubling when we remember that in 2002, the Foreign Intelligence Surveillance Court of Review held that FISA does not prohibit coordination between foreign intelligence gathering and domestic law enforcement. That suggests that the FBI could ask the NSA to tailor its filters to intercept evidence of Internet gambling, copyright infringement, or other ordinary crimes. The Americans whose communications were turned over could not be the "target" of the surveillance, but the House legislation requires only that foreign intelligence gathering be "a significant purpose" of eavesdropping programs. If a terrorist surveillance program also catches American citizens who are gambling or infringing copyright law, that's even better!

Other provisions

As has been widely reported, the legislation would grant broad, retroactive immunity to firms that participated in the president's warrantless surveillance program. The bar for granting immunity is extremely low: to receive immunity, the firm must merely demonstrate that it had received a letter from the government stating that the program was lawful. Since we already know that the program participants received such letters, there is no practical difference between this standard and blanket immunity.

The legislation expands the list of people who can be spied on to include those engaged in "the international proliferation of weapons of mass destruction." And curiously, it has an extremely broad definition of "weapons of mass destruction." It includes not only nuclear, chemical, and biological weapons, but also "any explosive, incendiary, or poison gas that is designed, intended, or has the capability to cause a mass casualty incident." As Wired's Jason Sigger points out, this is significantly broader than the traditional definition. The legislation mandates that the Inspectors General of each agency involved in FISA surveillance prepare reports to Congress detailing the nature and extent of post-September 11 surveillance activities.

Democratic leaders have made much of a provision designating FISA (along with ordinary criminal wiretapping procedures) as the "exclusive means" for intercepting electronic communications. But as a ruling last week made clear, this provision is little more than window dressing. Republican-appointed judge Vaughn R. Walker ruled last week that the 1978 FISA statute established "the exclusive means for foreign intelligence surveillance activities to be conducted." If the president ignored the exclusivity provisions of the current iteration of FISA, it's not clear what is accomplished by adding another one.

As alyrium says, Obama knew exactly what he was voting for.

[Noble Ire]

Oh give me a break. This law is more than just immunity.

Yet again, I never said that I approved of the meat of the bill; I find its implications for civil liberties quite disturbing. I was simply addressing a portion of the debate that was getting a good deal of attention, even though I readily admit it isn't as important as the rest. Obama has made an unpleasant and unexpected political maneuver, and I trust that he will try to undo it when he's elected.

Thank you for providing the summary, though.

[Edi]

Land of the fucking free indeed...