George Bush's latest powers, courtesy of the Democratic Congress

Congress is going to decree that the president has the power to order private citizens to break the law, as well as to spy on our telephone calls and e-mails with no warrants.


Glenn Greenwald
June 19, 2008 8:26PM (UTC)

(Updated below - Update II - Update III - Update IV - Update V - Update VI)

CQ reports (sub. req.) that "a final deal has been reached" on FISA and telecom amnesty and "the House is likely to take up the legislation Friday." I've now just read a copy of the final "compromise" bill. It's even worse than expected. When you read it, it's actually hard to believe that the Congress is about to make this into our law. Then again, this is the same Congress that abolished habeas corpus with the Military Commissions Act, and legalized George Bush's warrantless eavesdropping program with the "Protect America Act," so it shouldn't be hard to believe at all. Seeing the words in print, though, adds a new dimension to appreciating just how corrupt and repugnant this is:

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The provision granting amnesty to lawbreaking telecoms, Title VIII, has the exact Orwellian title it should have: "Protection of Persons Assisting the Government." Section 802(a) provides:

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided . . . was --
(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive . . . indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

So all the Attorney General has to do is recite those magic words -- the President requested this eavesdropping and did it in order to save us from the Terrorists -- and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was.

That's the "compromise" Steny Hoyer negotiated and which he is now -- according to very credible reports -- pressuring every member of the Democratic caucus to support. It's full-scale, unconditional amnesty with no inquiry into whether anyone broke the law. In the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected.

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I'll post more in just a bit on the new warrantless eavesdropping powers George Bush is going to have under this law. They're vast and precisely the kind of powers that were abused by our Government for decades prior to FISA. Returning to that era is going to be part of the legacy not just of George Bush, but of this Democratic-controlled Congress.

Our fund-raising campaign has just exceeded $200,000. So the only solace is that this hefty (and still growing) fund provides some real ability to target those responsible and do everything possible to remove them from power and end their political careers for good (the list thus far includes Majority Leader Steny Hoyer, Rep. Chris Carney and Rep. John Barrow).

It is also worthwhile to continue to call Barack Obama's campaign to demand that he intervene with meaningful action to stop this (though you'd be advised not to hold your breath while waiting for that to happen). As noted earlier today, Obama is conspicuously missing as his party is on the verge of enacting a radical bill to give the President vast new warrantless eavesdropping powers and retroactive amnesty to an entire lawbreaking industry.

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We're in the process of creating a new PAC in order to oversee campaigns of the type we're conducting against those responsible for this FISA/telecom travesty, and Jane Hamsher has a poll up asking people to identify the best name. If the Democrats enact this bill, and it looks increasingly like they will, it's vital to direct the resulting rage towards constructive purposes.

UPDATE: The rage level is going to be quite high today and will only get higher as the day progresses. From the Press Release jointly issued by the GOP and Democratic Chairmen responsible for this bill:

Bipartisan FISA Compromise Reached

Bill Protects Nation, Civil Liberties

WASHINGTON – Senate Intelligence Committee Chairman John "Jay" Rockefeller (WV), Senate Intelligence Committee Vice-Chair Kit Bond (MO), House Majority Leader Steny Hoyer (MD), and House Minority Whip Roy Blunt (MO) announced today that a bipartisan compromise has been agreed to that will modernize the Foreign Intelligence Surveillance Act. . . .

"This bipartisan bill balances the needs of our intelligence community with Americans' civil liberties, and provides critical new oversight and accountability requirements," said Hoyer. "It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance. Furthermore, we have ensured that Congress can revisit these issues because the legislation will sunset at the end of 2012."

It's outrageous of anyone to suggest that the Democrats capitulated here. They stood firm for you and made sure that this bill will only last for five years. Jay Rockefeller celebrated this "historic, bipartisan agreement to modernize FISA [which] is about providing an essential tool in the fight against terrorism." We're going to be slaughtered by the Terrorists unless the President can listen to our calls and read our emails with no warrants and unless the telecoms are immunized for their lawbreaking.

UPDATE II: The full text of this bill is where it belongs: on Steny Hoyer's website, here (.pdf).

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Perhaps the most repellent part of this bill (though that's obviously a close competition) is 802(c) of the telecom amnesty section. That says that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal.

So basically, one day in the near future, we're all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we're never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won't we, the public, know that, neither will the plaintiffs' lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. Freedom is on the march.

The ACLU's Caroline Fredrickson calls this "disastrous surveillance legislation" and said this about the new warrantless eavesdroppping provisions in the bill:

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This bill allows for mass and untargeted surveillance of Americans' communications. The court review is mere window-dressing –- all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole –- "exigent" circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all.

I'd like to underscore the fact that in 2006, when the Congress was controlled by Bill Frist and Denny Hastert, the administration tried to get a bill passed legalizing warrantless eavesdropping and telecom amnesty, but was unable. They had to wait until the Congress was controlled by Steny Hoyer, Nancy Pelosi and Harry Reid to accomplish that.

And isn't it so odd how this "compromise" -- just like the Military Commissions Act, the Protect America Act and all the other great "compromises" from the Bush era which precede this one -- is producing extreme indignation only from those who believe in civil liberties and the rule of law, while GOP Bush followers seem perfectly content and happy with it? I wonder if that suggests that what the Democratic leadership is supporting isn't really a "compromise" at all.

UPDATE III: Sen. Russ Feingold courteously answers the last question I just posed:

The proposed FISA deal is not a compromise; it is a capitulation. . . . The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President's illegal program, and which fails to protect the privacy of law-abiding Americans at home.

Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power.

Meanwhile, has anyone seen Barack Obama?

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The two presumptive presidential nominees have differed over the issue. A senior aide to Sen. John McCain, R-Ariz., recently indicated the senator would support granting immunity to the phone companies. Sen. Barack Obama, D-Ill., was among the most vocal opponents of immunity in the Senate debate last year. . . .

A spokesman for the Obama campaign didn't return phone calls or emails seeking comment for this article.

If Obama remains missing much longer, it may be necessary to issue an Amber Alert for him.

Finally, D-Day reports that the House leadership is working to vote tomorrow on the war funding bill and the FISA "compromise" at the same time. As he puts it: "The final indignity. Funding for endless war AND etching out the 4th Amendment will be combined into the same bill to force enough compliance from [Blue Dogs] to get this bill passed." Did I mention that the Democrats currently control both houses of Congress?

UPDATE IV: Several readers have emailed to say that they called the Obama campaign and were told that Obama and his staff are "literally reviewing the bill right now and will make a statement shortly." This Kos diarist reports the same thing.

Nancy Pelosi -- who completely removed herself from this entire process, ceding control to Hoyer -- made comments today about the FISA bill that are both incoherent and inane:

Tomorrow, we will be taking up the FISA bill. As you probably know, the bill has been filed. It is a balanced bill. I could argue it either way, not being a lawyer, but nonetheless, I could argue it either way. But I have to say this about it: it's an improvement over the Senate bill and I say that as a strong statement. The Senate bill is unacceptable. Totally unacceptable. This bill improves upon the Senate bill. . . .

And it is again in Title II, an improvement over the Senate bill in that it empowers the District Court, not the FISA Court, to look into issues that relate to immunity. It has a strong language in terms of an Inspector General to investigate how the law has been used, is being used, will be used.

So that will be legislation that we take up tomorrow. We will have a lively debate I'm sure within our caucus on this subject and in the Congress. It has bipartisan support.

I commend Steny Hoyer for his important work on this legislation, working in a bipartisan way.

She doesn't have the courage to say if she supports it -- that is superb and strong leadership -- but in praising the bill, she invokes the justification so obviously misleading that it should insult anyone who hears it: namely, that we should all be grateful because this bill "empowers the District Court, not the FISA Court, to look into issues that relate to immunity."

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Indeed. What a wonderful concession that is. Instead of ordering the FISA court to give amnesty to the telecoms in secret, the bill orders the District Court to give amnesty to the telecoms in secret. What a very significant and meaningful improvement that is. But, as Pelosi says, she "could argue it either way." Maybe she'll flip a coin before tomorrow's vote in order to figure out whether she's for or against this bill.

What's particularly amazing about this whole process is that the House leadership unveiled this bill for the first time today -- and then scheduled the vote on it for tomorrow. No hearings. Nothing. They all have less than 24 hours to "read" the bill and decide whether to eviscerate the rule of law and the Fourth Amendment. I recall Democrats long complaining that they were only given one day before being forced back in September, 2001 to vote on the Patriot Act, yet here they are -- even without the excuse of the 9/11 attack -- doing that to themselves. I'm sure their votes tomorrow will be the by-product of a very conscientious, thoughtful and diligent review of this lengthy bill -- just as thoughtful as Pelosi's review was before she whimsically pronounced that it's all just six of one, half dozen of the other.

UPDATE V: Now that Democrats have agreed to this bill, the GOP isn't even bothering with the pretense anymore that this is a "compromise." Instead, they're rubbing the Democrats' noses in the fact that this was a full-scale capitulation. From Eric Lichtblau's New York Times article:

With some AT&T and other telecommunications companies now facing some 40 lawsuits over their reported participation in the wiretapping program, Republican leaders described this narrow court review on the immunity question as a mere "formality."

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

The proposal -- particularly the immunity provision -- represents a major victory for the White House after months of dispute. "I think the White House got a better deal than even they had hoped to get," said Senator Christopher Bond, the Missouri Republican who led the negotiations.

The White House immediately endorsed the proposal, which is likely to be voted on in the House on Friday and in the Senate next week.

"The White House got a better deal than even they had hoped to get." The administration should know better by now than to underestimate the Democratic leadership's complete cravenness and eagerness to please the White House.

UPDATE VI: More here.


Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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