FISA

From all appearances, Sen. Dodd is as committed as ever to doing what he can to stop telecom immunity (thus giving the lie to the jaded claims from Reid and others that he was doing this only to help his presidential bid) — including full-scale filibusters and other forms of procedural obstructionism. But thanks to Reid’s decision to bring to the floor the immunity-providing SIC bill (rather than the immunity-denying SJC bill), it will be exceedingly difficult for Dodd and his allies to strip immunity out of the bill by amendment (60 votes would be required to overcome a certain filibuster of any such amendment). Thus, Bush and Cheney — with the subservient loyalty of their key allies, Rockefeller and Reid — appear, at least as of right now, highly likely to prevail in their twin goals of warrantless eavesdropping and telecom immunity.

None of this is particularly surprising. As The Washington Post‘s Dan Frookmin aptly put it yesterday in his online chat:

West Union, Iowa: What’s your take on how the upcoming FISA renewal will play out?

Dan Froomkin: I’m betting on Bush beating the Democrats into submission again. So far, that’s been a safe bet.

Indeed, as a general matter, betting on Democratic Congressional submission to Bush’s demands is one of the surest bets there is. And with Reid and most of the Senate Democratic leadership specifically committed to delivering yet another victory for Bush and their telecom owners on the FISA bill, “uphill battle” is an understatement for describing the challenge which proponents of the rule of law face. As Froomkin put it on a separate, recent occasion in his column: “Historians looking back on the Bush presidency may well wonder if Congress actually existed.”

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Despite all of this, there will be, in the next couple of weeks, several points of focus. Initially, the leading presidential candidates have been all but silent with regard to all of this. That’s particularly striking because this is a real, live issue that implicates their ostensible commitment to “changing how Washington works” — it’s nothing more than telecoms using their power, influence and bipartisan lobbyists in Washington to write extraordinary legislation for themselves that bequeaths them with immunity for having broken the law.

Manifestly, retroactive immunity is something available only to the largest, lobbyist-using corporations, and is not something that ordinary Americans would ever even get a hearing on. It’s as illustrative a case of core Beltway corruption as it gets. Yet as Clinton, Obama and Edwards parade around rhetorically proclaiming their “leadership abilities” and their willingness to fight vested interests in Washington and to defend the rule of law, they abdicate one opportunity after the next to demonstrate their authenticity. Taking a real stance against such a corrupt gift to the telecom industry — through real leadership rather than the obligatory, forced issuance of meaningless statements — seems like a rather compelling way for at least one of those candidates to distinguish their campaign.

As Matt Stoller recently documented, telecoms have become increasingly brazen about the fact that they essentially own multiple members of Congress. They began pouring money and other favors into the coffers of Jay Rockfeller at exactly the same time that they began cajoling him (successfully) to become the leading advocate for telecom immunity. Telecoms have on their payroll hordes of bipartisan loybbists and advisors working for immunity, including former Clinton officials such as Jamie Gorerlick.

Beyond that, immunity would be a complete evisceration of the rule of law, bizarrely protecting telecoms from the consequences of their lawbreaking and putting an end to any real hope for investigating and obtaining accountability for years of illegal spying on Americans by the Bush administration. When you put all of that together, telecom immunity embodies every form of lawlessness and corruption which are destroying our political culture — everything that the Democratic presidential candidates endlessly claim in pretty speeches they are committed to fighting.

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There are other important points to note here as well. Chris Dodd is already being pressured (and vaguely threatened) by cowardly, anonymous Democratic Senate aides, who are leaking smarmy and thuggish nuggets suggesting that Dodd can get back into the good graces of his caucus only if he gives up his whole flighty, annoying fixation on the Constitution and the Rule of Law. He’s going to need ongoing support and reinforcement.

The House actually passed a relatively decent FISA bill that has real protections on eavesdropping and denies immunity to telecoms, and it’s possible that they will be a leverage point as well (though it’s more likely that the Bush-supporting “Blue Dogs” will ultimately throw their support to the Senate version). Additionally, certain Senators who have supported telecom immunity — such as Dianne Feinstein and Sheldon Whitehouse — have been toying with the idea of some kind of “compromise” whereby the Federal Government stands in as defendants for the telecoms, though a far superior compromise would simply be to amend FISA to clarify (even though it’s already clear) that telecoms are free to submit any exculpatory evidence in secret to the federal court presiding over lawsuits against them (more on that later).

In his stump speech, Barack Obama pledges to end what he calls “Lewis Libby justice.” Immunity for lawbreaking telecoms is the extreme expression of that. In fact, the ability of the rich and well-connected to obtain immunity from lawbreaking is one of the hallmarks of corrupt oligarchy, one of the surest signs of the breakdown of basic justice. From The History of Rome, Cary & Scullard, 3rd edition, 1975. p. 494:

…this change of procedure was accompanied by the increasing use of different scales of punishments according to the person of the delinquent. For purposes of criminal jurisdiction the citizen body fell into a class of honestiores (including members of the Senatorial and Equestrian Orders, municipal magistrates and senators, and soldiers of all ranks), and another of humiliores. For the same crime a privileged offender might suffer simple banishment, an unprivileged one would be sentenced to penal servitude in the mines; in capital cases the honestior would be put to death quickly and cleanly, the humilior might be thrown to the beasts. A person of higher status still enjoyed the right of appeal to the emperor, and he remained exempt from torture, except in trials of treason … but these privileges were withdrawn from those of the lower order. From the time of Severus [early 3rd Century] the principle that the law was a respecter of persons pervaded the whole of the Roman criminal jurisdiction, a rule which constituted one of Rome’s most harmful legacies to the Middle Ages.

The Senate Democratic leadership, working hand-in-hand with the Bush administration, is working feverishly to ensure that telecoms benefit from exactly this corrupt and lawless framework. There are still some opportunities to try to prevent those efforts, or at least make them much more public, difficult and costly.

UPDATE: The Politico warns Democrats that Karl Rove is watching them (h/t Awklib):

Rove’s eye will be on FISA vote

Take note, Democratic presidential operatives: Karl Rove will be very carefully watching the Senate floor vote on the Foreign Intelligence Surveillance Act.

Addressing the Republican National Committee’s winter meeting Wednesday, Rove urged the party faithful to watch closely how the Democratic presidential front-runners, New York Sen. Hillary Rodham Clinton and Illinois Sen. Barack Obama, vote on the issue.

“Do they or do they not want our intelligence agencies to be listening in on conversations between terrorists in the Middle East who may be plotting to hurt America?” Rove asked.

A former top adviser to President Bush, Rove is still seen as perhaps the pre-eminent Republican electoral strategist, with Beltway insiders hanging on his every word. And while “The Architect,” as Bush calls him, used most of his speech to attack Clinton’s and Obama’s record on health care, taxes and the war in Iraq, Rove particularly homed in on FISA.

The issue cuts to the core of national security in a post-Sept. 11 world, Rove said, and he is betting that voters will favor the GOP’s argument over concerns about trampling civil liberties raised by Democrats. . . .

He urged the party officials to devise communication strategies that find “creative and sustaining ways” to “talk about these contrasts” . . .

Rove also said that withdrawing immunity for telecom companies would “effectively gut” the ["Terrorist Surveillance"] program.

Not that The Politico would ever point it out, but Rove’s framing of the issue — repeated by the Extremely Horonable Mike McConnell in the most recent issue of The New Yorker — is a total falsehood, since the Government — under the old FISA — is entirely able and fully authorized to “listen in on conversations between terrorists in the Middle East who may be plotting to hurt America” (Wired‘s Ryan Singel identifies several other false fear-mongering claims from McConnell in the New Yorker article).

But “Beltway insiders” — which include Senate Democrats — “hang on Rove’s every word” and undoubtedly tremble when he issues warnings of this sort, even though he said exactly the same thing and made FISA fear-mongering the centerpiece of the GOP message in 2006 — and got crushed. But in Beltway World — still — Rove fear-mongers; the media “hang on every word”; and Democrats scamper and comply.

Beyond telecom amnesty, the FISA Amendments Act also wildly expanded the Government’s power to conduct warrantless surveillance of telephone calls and emails.  In large part, the bill was intended to legalize the illegal Bush NSA program that had caused so much faux controversy among Democrats.  As Yale Law Professor Jack Balkin put it:  ”Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”; separately, Balkin contended that Obama voted for the bill because, as President, he himself would want the same powers Bush had to intercept people’s communications without bothering with court approval.

When trying to placate his numerous supporters furious over his reversal, Obama insisted he voted for the bill with “the firm intention — once I’m sworn in as president — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future” (that promise caused his then-large band of faithful followers to evangelize that Obama only voted for the bill to make sure he won the election, so that he could then use his majestic power to fix civil liberties abuses of the type he had just voted for; that was when people were still willing with a straight face to invoke the 11-dimensional chess justification for everything he did).  Needless to say, it would have been unhealthy in the extreme holding one’s breath for that “we’ll-fix-it-when-I’m-President” promise to be fulfilled, as — more than 2 years into his presidency — nothing like it has remotely happened. 

Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law’s expanded warrantless eavesdropping powers violated the Fourth Amendment.  Aside from its warped and radically enlarged “state secret” doctrine, the Bush administration’s standard tactic for avoiding judicial review of their illegal eavesdropping programs was a two-step “standing” exercise grounded in extreme cynicism:  (1) they shrouded their eavesdropping actions in total secrecy so that nobody knew who was targeted for this eavesdropping, and they then (2) exploited that secrecy to insist that since nobody could prove they were actually subjected to this eavesdropping, nobody had “standing” to contest its legality in courts (that’s how the Bush DOJ got an appeals court to dismiss on procedural grounds a lower court ruling that their NSA program broke the law and violated the Constitution). 

In the case brought by the ACLU, the plaintiffs were a variety of human rights activists, lawyers and journalists (including Naomi Klein and Chris Hedges), who argued that both they and their sources have a reasonable fear of being subjected to this expanded surveillance, and that fear– by rendering them unable to perform their jobs and exercise their Constitutional rights — constitutes sufficient harm to vest them with “standing” to challenge the new eavesdropping law.  In response, the Bush administration argued — as always — that the plaintiffs’ inability to prove that they were actually targeted by this expanded surveillance precluded their suing; their mere “fear” of being targeted, argued the Bush DOJ, was insufficient to confer standing to sue.

In late 2008, a lower court judge granted the Bush argument and dismissed the ACLU’s lawsuit on “standing” grounds.  On appeal, the Obama DOJ — needless to say — faithfully adopted exactly the Bush argument to demand dismissal of the ACLU’s lawsuit on procedural grounds of “standing,” i.e., without assessing the merits of whether this law violates the Fourth Amendment.  

But today, a three-judge appellate court dealt a serious blow to the Bush/Obama tactic for shielding government eavesdropping from judicial review (i.e., placing secret executive surveillance above and beyond the rule of law).  The unanimous court ruled that the plaintiffs’ fear that they will be subjected to this expanded warrantless eavesdropping is reasonable given the sweeping powers the law vests in the Executive, that these fears substantially impede their work, and that these impediments constitute actual harm sufficient to allow them to challenge the constitutionality of the FISA Amendments Act:

This may sound like a legalistic development but its significance extends far beyond that.  Unlike the bastardized Bush/Obama “state secrets” weapon for avoiding judicial review, ”standing” is actually a legitimate and important constitutional restriction on a court’s jurisdiction.  The idea is that courts are permitted to resolve only actual disputes between actual parties where the defendant’s conduct has uniquely injured the plaintiff in direct ways; we don’t want courts to be free-floating, omnipotent tribunals that issue binding answers to every abstract political question.  They are empowered to issue legal rulings only when there is an actual “case or controversy” before them involving parties directly and uniquely harmed by the challenged conduct.

But what the Bush DOJ and then the Obama DOJ have done is manipulate that important “standing” limitation beyond all recognition into a weapon of full-scale presidential immunity.   If one were to accept their tactic, a President need only break the law in total secrecy and prevent anyone from finding out what exactly he did and to whom he did it.  With that secrecy in place, the DOJ can then tout that secrecy as a means of preventing any judicial challenges to the President’s conduct — which is another way of saying that the President has placed his conduct outside of the rule of law (because we did it in secret, everyone is unable to sue over it).  Obviously, if one can break laws but then block courts from adjudicating allegations of lawbreaking, then one is — by definition — free to break the law.  That has been the case thus far with the Bush administration thanks to the warped doctrines it pioneered and the Obama DOJ then swallowed whole.  

This danger is particularly acute in the post-9/11 world where so much of what the Executive branch does of any significance — I’d say most of what it does — takes place behind a wall of secrecy.  To allow Presidents to escape all legal challenges on “standing” grounds merely because they managed to conceal the identity of the victims of their lawbreaking would be, in essence, to have laws that apply to Presidents only in theory but not in reality.

Today’s ruling puts at least some brakes — for now — on that license of lawlessness.  It rejected the Bush/Obama claim that citizens must prove they have been targeted by an illegal presidential program before they have the right to ask a court to declare it illegal.  Instead, a plaintiff’s reasonable fear that their rights are being violated due to enactment of an allegedly unconstitutional law  — combined with actual harm suffered as a result of that fear — suffices to allow them to challenge the legality of those actions.  It is, of course, possible that the Supreme Court can review and reverse this ruling, but the Second Circuit is a well-regarded court — situated on the level immediately below the Supreme Court — and this well-reasoned decision will have significant sway.  At the very least, this is an important ruling in eroding what is easily one of the worst political problems plaguing America in the post-9/11 world: the ease with which Presidents and their underlings can insulate their secret actions from the rule of law.

The most intensely fought civil liberties battle of 2008 — the one waged over FISA and telecom immunity — ended the way most similar battles of the last eight years have: with total defeat for civil libertarians. Even before Democrats were handed control of Congress at the beginning of 2007, the Bush administration had been demanding legislation to legalize its illegal warrantless NSA eavesdropping program and to retroactively immunize the telecom industry for its participation in those programs. Yet even with Bill Frist and Denny Hastert in control of the Congress, the administration couldn’t get its way.

Not even the most cynical political observer would have believed that it was the ascension of Harry Reid and Nancy Pelosi that would be the necessary catalyst for satisfying Bush’s most audacious demands, concerning his most brazenly illegal actions. If anything, hopes were high that Democratic control of Congress would entail a legislative halt to warrantless eavesdropping or, at the very least, some meaningful investigation and disclosure — what we once charmingly called “oversight” — regarding what Bush’s domestic spying had really entailed. After all, the NSA program was the purified embodiment of the most radical attributes of a radical regime — pure lawlessness, absolute secrecy, a Stasi-like fixation on domestic surveillance. It was widely assumed, even among embittered cynics, that the new Democratic leadership in Congress would not use their newfound control to protect and endorse these abuses.

Yet in July 2008, there stood Pelosi and Reid, leading their caucuses as they stamped their imprimatur of approval on Bush’s spying programs. The so-called FISA Amendments Act of 2008 passed with virtually unanimous GOP and substantial Democratic support, including the entire top level of the House Democratic leadership. It legalized vast new categories of warrantless eavesdropping and endowed telecoms with full immunity for prior surveillance lawbreaking. Most important, it ensured a permanent and harmless end to what appeared to be the devastating scandal that exploded in 2005 when the New York Times revealed to the country that the Bush administration was spying on Americans illegally, without warrants of any kind.

With passage of the Act, Democrats delivered to the Bush administration everything it wanted — and more. GOP Sen. Kit Bond actually taunted the Democrats in the Times for giving away the store: “I think the White House got a better deal than they even had hoped to get.” Making matters much worse, by delivering this massive gift to the White House, the House undid one of its very few good deeds since taking over in 2006: its galvanizing February 2008 refusal to succumb to Bush’s rank fear-mongering by allowing “The Protect America Act” to expire instead of following the Senate’s lead in making it permanent.

Adding the final insult to this constitutional injury, Barack Obama infamously violated his emphatic pledge, made during the Democratic primary, to filibuster any bill containing telecom immunity. With the Democratic nomination fully secured, Obama blithely tossed that commitment aside, instead joining his party’s leadership in voting for cloture on the bill — the opposite of a filibuster — and then in favor of the bill itself. The photographs of the celebratory, bipartisan signing ceremony that followed at the White House — where an understandably jubilant George Bush and Dick Cheney were joined by a grinning Jay Rockefeller, Jane Harman and Steny Hoyer — was the vivid, wretched symbol of what, in 2008, became the fully bipartisan assault on America’s basic constitutional guarantees and form of government.

The FISA fight was the destructive template that drove virtually every other civil liberties battle of the last year. Time and again, Democrats failed to deliver on a single promise. They failed to overcome a GOP filibuster in the Senate to restore habeas corpus, which had been partially abolished in 2006 as a result of the Military Commissions Act that passed with substantial Democratic support and wholesale Democratic passivity. Notably, while Senate Democrats, when in the minority, never even considered a filibuster to block the Military Commissions Act, it was simply assumed that the GOP, when it was in the minority, would filibuster in order to prevent passage of the Habeas Restoration Act. And filibuster they did.

A similar scenario played out with the attempt in February to redress America’s torture crisis by enacting an amendment to the Defense Authorization Act compelling all government agencies, including the CIA, to comply with the Army Field Manual when interrogating detainees. The most immediate effect of such a law would have been to impose an absolute ban on the use of waterboarding, along with any other coercive tactics — torture techniques — which the Manual does not explicitly authorize.

Knowing that the president would veto the bill, the GOP allowed a floor vote on the Army Field Manual amendment. Signaling what would be his year-long, soul-selling captivity to the far right of his party, John McCain — despite years of parading around as a righteous opponent of torture — voted against the torture ban. The bill passed both houses largely along party lines, President Bush vetoed it as promised, and the House then failed to override the veto. The path taken was slightly different, but the outcome was the same: total failure in reining in Bush’s abuses. Indeed, by the end of 2008, civil libertarians could point to many defeats suffered in the Democratic-controlled Congress, but not a single victory.

The fate of civil liberties in the judiciary was much more mixed, punctuated with several significant victories. Undoubtedly the most important win was the Supreme Court’s June decision in the Boumediene case, which struck down as unconstitutional one of the worst constitutional assaults of the Bush era: Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantánamo detainees and prohibited them from challenging their detention in a federal court.

The Court ruled, by a precarious 5-4 margin, that Guantánamo detainees could not constitutionally be denied the right to have their detentions reviewed by an American federal court. That seminal ruling paid quick dividends for some of the detainees. Last month, a Bush 43 federal judge — the same jurist who had originally upheld the Act’s abolition of habeas review for Guantánamo detainees and was ultimately reversed by the Boumediene court — conducted a habeas hearing for six Algerian-Bosnian detainees imprisoned without charges at Guantánamo for the last six years.

The judge concluded that the Bush administration had no credible evidence to justify the detention of five out of the six detainees and thus ordered them released immediately. Four of the five are now back in Bosnia, while the fifth awaits release. Without the Boumediene ruling, the truly heinous provisions of the Military Commissions Act would still be operative and would continue to empower the government to hold those detainees — along with dozens if not hundreds of others — indefinitely and without charges. Boumediene is one of the few civil liberties bright spots of this decade.

The Bush administration, also earlier this year, suffered another judicial defeat at the hands of a very conservative, Bush 43-appointed federal judge, when that judge emphatically rejected the administration’s claim that Bush aides Harriet Miers (former White House counsel) and Josh Bolten (former White House chief of staff) are entitled to absolute immunity from Congressional subpoenas. That dispute, which arose from the House Judiciary Committee’s efforts to investigate the notorious firing of nine U.S. attorneys, dispensed with one of the administration’s most radical tools — a claim of absolute, unconstitutional executive privilege — for shielding itself from accountability.

One of the most potentially damaging judicial developments of the year was a horrendous ruling issued in July by the conservative Fourth Circuit Court of Appeals in the case of Ali Saleh Kahlah al-Marri. The al-Marri court actually upheld the president’s claimed authority to detain legal residents and even U.S. citizens in a military prison as “enemy combatants,” rather than charge them in a civilian court with a crime. But the damage done by that ruling was mitigated substantially when the U.S. Supreme Court announced just two weeks ago that it has agreed to review the al-Marri ruling, and civil libertarians are cautiously optimistic that the Court will likely reverse it.

For the last seven years, Democrats have repeatedly cited GOP political dominance to excuse their wholesale failures to limit, let alone reverse, the devastating war waged by the Bush administration on America’s core liberties and form of government. With a new Democratic president and large majorities in both Congressional houses, those excuses will no longer be so expedient. As dark and depressing as these last seven years have been for civil libertarians, culminating in an almost entirely grim 2008, there is no question that the Obama administration and the Democrats generally now possess the power to reverse these abuses and restore our national political values. But as the events of the last 12 months conclusively demonstrate, there are substantial questions as to whether they have the will to do so.