On February 12, 2008 Senator Jim Webb issued the following statement on his vote for passage of the FISA bill:
There were a number of measures brought before the Senate today that I believed could have improved the FISA bill which passed overwhelmingly tonight. This is a complex law. It becomes imperative that we look for ways to both keep our nation safe from further terrorist attacks and ensure that our government's surveillance is conducted in a legal manner that comports with the U.S. Constitution."Senators Feingold, Tester and I spent two months working to construct and introduce an amendment designed to add further safeguards against Executive Branch surveillance on innocent Americans. I believe the amendment best answered the call of Americans who have been demanding a proper system of checks and balances for our government's surveillance program. Our amendment regrettably failed this afternoon.
"I also supported two amendments which sought to limit immunity for telephone companies in proper situations. These amendments would have allowed consumers to move forward with legal action in certain situations, for example where companies have acted in bad faith in aiding government surveillance. Unfortunately, both of these amendments failed as well.
"Our current FISA bill expires in two days. As someone who has decades of experience in dealing with national security matters and classified intelligence, I believed it was necessary to implement a surveillance program that provides professionals an updated set of tools to properly respond to terrorist threats. However, I plan to urge my colleagues who sit on the Senate-House conference committee to adopt House provisions that better protect Americans from Executive branch overreach.
I've been monitoring the "debate" over Jim Webb's vote on the FISA bill. Most of the commentary is along the lines of Jim Webb being a Constitution hating fascist, a "sell-out", and a craven cave-in to the Bush Administration. One commentator suggests the best solution for this problem is to harass the stuffing out of his staff by inundating him with calls designed to "change his mind." Yes, harassing phone calls, just the thing to terrorize Webb and cause him to rethink his position, admit he was wrong, and stampede him into a reversal or at best a heartfelt apology. We all know how effective hectoring phone calls can be, especially against people with reputations for pugnacity.
I would suggest on the contrary that all the Webb ranters take a deep breath and chill. Here's why:
All this crap about betrayal and turning on the Constitution is really beginning to frost my nether regions. Webb and the other Dems are stuck in the unenviable position of trying to figure out how to perform their sometimes contradictory functions of protecting the country and protecting the Constitution while dealing with a hostile President threatening veto and Republican colleagues whose numbers are sufficient to prevent overcoming any veto. Now a lot of those guys aren't even running for re-election. There's a desperation in this lame duck crowd that makes it next to impossible to push through any compromises. No one's going to respond to our Democratic Senators reaching across the aisle. They'd rather have their vetoes and their filibusters and when some bad consequence occurs they'll point to the Dems and say "see what you made us do." The Senate Dems are playing with a bunch that has nothing left to lose, dangerous and obfuscatory opponents.
I've seen comments ridiculing the notion that there is a real and present danger to this country posed by terrorists or other criminal types. Webb happens to disagree. Maybe they're right. Maybe he is. He believes, based on his vast experience in the military, in the Defense Department, and on his career as a strategic thinker, journalist, and author that terrorist communications pose a serious threat to this country. Even the naysayers would agree he owes a duty of protection to this country.
Webb also owes a duty to uphold the Constitution and the Bill of Rights. Contrary to the suggestions of some in this forum he hasn't torched the Constitution. I checked his website and couldn't find a single invitation to the Constitution-burning at the National Archives this evening. What he HAS done, apparently against his own inclinations, is agree to allow for retroactive immunity for telecoms on their past actions in responding to the overreaching requests of the Executive Branch. He makes it clear in his statement that he did it, not because he wants to abolish the Constitution and destroy the Bill of Rights, but because the time to act was down to two days and he feared the consequence of failing to pass the legislation. It's possible he was wrong, that he weighs too much his duty to protect the country against his duty to uphold the protections of the Bill of Rights, but when we elected him we elected his brain and his experience and we understood that sometimes his sense of the balance between the competing interests might differ from ours.
There are those who are angry that the telecoms will be immune from consequence for their violations of this law. Fair enough. I hate to see law violators absolved of liability. But let us not kid ourselves. There is no purity or consistency in the application of the law. There are times when the competing interests raise their ugly heads and what is right and fair gives way to what is practical and to a certain extent also right. Where do all the naysayers think qualified immunity for public servants comes from? How about sovereign immunity? The law is replete with immunities and qualifications and limitations on liability for untoward behavior. Some of this behavior has a direct bearing on constitutional rights, but along the way courts and/or legislatures made the determination that competing interests outweighed the constitutional considerations. Added to the mix is that the behavior is all past, not ongoing or current, that the laws are still in effect, and that it's clear that the type of behavior the telecoms were engaging in a few years ago would never pass muster today. Usually when a pass is granted a wrongdoer he's placed on notice that future wrongdoing will not be tolerated or excused. There will be no "following orders" defense.
And let us consider this: there is NO absolute right to anything under the Constitution or the Bill of Rights. ALL of them are considered to be subject to competing interests. The law is riddled with exceptions and qualifications and parsing of meaning.
Two other points should be considered by the Webb-bashers: a) the legislation comes up for review again in six months; and b) he is hoping to achieve better Constitutional protections during the Senate-House Conference committee meetings. Instead of burning his telephone lines with angry and pointless attacks, perhaps people's energies would be better expended in encouraging his colleagues to go along with him and the House version. Senator Webb is not the enemy here. Let's let him do his job.
1) Calling a member of Congress to convince them to change their mind is the essence of democracy. In fact "petition[ing] the Government for a redress of grievances" is part of the First Amendment! Do you want to abolish that too? It is not "harrassment" or "terrorizing" to "hector" the Senator into PROVIDING AN EXPLANATION THAT HE THUS FAR REFUSES TO GIVE!
What are the "updated set of tools"? He doesn't say. But the FISA law worked very well for 30 years. If you know the law -- as I do -- you know that the secret court has granted 99%+ of warrants and even grants them retroactively. Why is 99%+ not enough? Who does Bush want to spy on without a warrant that he has zero cause to believe has done anything wrong that the Government is not allowed to spy on under current law? Bush doesn't say. (I expect that.) More importantly, WEBB DOESN'T SAY! And that surprised me, because I respect Jim Webb, though my respect is diminishing with his refusal to allow his staff to contact me and explain to me why he voted as he did, including against the Dodd Amendment.
2) The "expiration in two days" is the Republicans' fault. They and the President refused to extend the law in order to create precisely the false pressure that would cause craven Democrats to cave. Apparently thisruse is succeeding, but I thought Senator Webb was "pugnacious" beyond falling prey to Republican gamesmanship. Let the damn thing expire, since Webb apparently is unable to articulate A SINGLE WAY THIS LAW PROTECTS OUR SECURITY!
I lay down the challenge. Senator Webb or his staff, name one even hypothetical situation where your vote protects national security in a way the FISA law doesn't. Name one. He can't. If he could, he would have. If he ever does, we can get a real debate going. But Webb's continued stonewalling is offensive to democracy.
3) "I've seen comments ridiculing the notion that there is a real and present danger to this country posed by terrorists or other criminal types." This is foul ball and you know it, Catzmaw. Whoever said there was no danger of terrorists or crime in America? Now you're sounding like Cheney/Limbaugh/Coulter on steroids. Of course there's a danger! That's why we have a secret court that can issue warrants! But there's also a danger -- as Webb USED to recognize when he ran for office -- of East German-like authoritarian Government spying on innocent Americans. See the quote he gave when running for office. http://raisingkaine.com/showDi...
As Webb CANNOT articulate even a hypothetical terrorist he would stop with his vote, but I can articulate millions of actual innocent Americans already illegally spied on, that gives me a millions to zero reason to demand an explanation.
4) "Added to the mix is that the behavior is all past, not ongoing or current, that the laws are still in effect, and that it's clear that the type of behavior the telecoms were engaging in a few years ago would never pass muster today. Usually when a pass is granted a wrongdoer he's placed on notice that future wrongdoing will not be tolerated or excused. There will be no "following orders" defense."
THIS IS ABSOLUTELY FALSE AND YOU KNOW IT. THE BEHAVIOR CONTINUES. IT IS HAPPENING RIGHT NOW! I DEFY YOU TO SHOW ANYTHING THAT SAYS IT'S NO LONGER HAPPENING.
OK, I'm done.
I apologize for yelling.
Do you work for Senator Webb?
If so, call me. We can have this conversation in private.
Now, in answer to your major points:
1) I'm pretty sure I grasp this whole "essence of democracy" thing and merely suggested it would be counter-productive to urge everyone, as you have, to call Webb's office to try to change his mind about something on which he AGREES with you, meaning telecom immunity. His vote was a compromise meant to move necessary legislation along. I'm assuming you agree there should be a FISA? Hard to tell, because you refer to FISA and the telecom immunity issues interchangeably without distinguishing from one to the other. And I have to say, telling me that FISA wasn't broke and didn't need fixing in an internet communication which is posted somewhere out in cyberspace for anyone in the ENTIRE WORLD with a working modem or WiFi setup to see and respond to is laughable. Communications technology has changed in radical ways completely unforeseen in the early 70s. Something has to be done, and due to the complexity of the issue no solution will be perfect.
Oh, and claiming that Webb won't "let" his staff contact you ... aren't we being just a bit solipsistic here? Seriously, I'm trying to imagine him thundering "I refuse to let you contact that Levine guy" to his staff. Maybe his staff was put off by verbal frontal assault and doesn't want to talk to you, or maybe they're too busy answering dozens of irate phone calls per your diary urging same.
2) Calling the two day deadline on the legislation "the Republicans' fault" is non-responsive to the deadline itself. It's there. You urge Webb and the others to let the thing expire because you personally can't see any way that it helps protect our safety. Can't argue with that logic. Who knew we just needed to check with you to determine where the danger lies (or doesn't)? I'm hoping you'll show us all the qualifications that make your judgment on this issue better than Webb's. Guess Webb and the colleagues who joined him on this vote are just being a bunch of drama queens.
3) Well, it sounds as if you agree there are bad guys out there who want us all to die. Um, a little conflict with point number 2, but what's inconsistency when you get to make sweeping statements? Great. Now, what do we do about them? You say
As Webb CANNOT articulate even a hypothetical terrorist he would stop with his vote, but I can articulate millions of actual innocent Americans already illegally spied on, that gives me a millions to zero reason to demand an explanation.My, my, now who's being unfair? Webb doesn't disagree with you. Since you're all about articulation, why don't you articulate where Webb articulated that it was OKAY by him that innocent Americans had been spied upon? You've just admitted that there's a danger out there and we have to do something. Webb doesn't need to articulate his hypothetical terrorist because you already agree that the terrorist exists.
4) You say
THE BEHAVIOR [telecom spying] CONTINUES. IT IS HAPPENING RIGHT NOW! I DEFY YOU TO SHOW ANYTHING THAT SAYS IT'S NO LONGER HAPPENING.You're asking me to prove a negative? Since you're arguing it's a positive occurrence, why don't you instead SHOW me it's happening right now? I'll give your evidence an honest assessment.
You are apparently a talk radio host. I'm all for having left-leaning talk radio hosts, but it's no benefit to anyone if you ape the behavior of the Rushes and the Hannitys and the O'Reillys. You say you're a lawyer. Like most lawyers you were probably taught using the Socratic method, which teaches us that there are few easy answers, and rarely any completely accurate ones. There are always distinctions to be drawn and qualifications to any argument. Maybe hyperbole is necessary to a talk radio career, but hyperbole sucks the strength right out of any legitimate argument you may have.
And yes, I think that if Webb believes in his vote, he or his staff should be able to answer a constituent with a serious question and a legal background
2) Can you see how changes to FISA are necessary to protect our safety? Really? How? This is the question I've asked Webb and no one seems to be able to answer. Can you? Why did Bush seek no changes to FISA until he was caught breaking the law? And why do YOU seek to protect Bush in his law breaking and to keep it secret? Why do you want that?
3) There's no contradiction between believing dangers to American security exist and believing our Constitution and current FISA are adequate to the task. Please tell me how they're not.
Webb does agree with me about his preference for the bill. We both prefer maintaining the protections of our Constitution. Our disagreement is about what happens when he doesn't get his preference. I believe no changes to FISA at all is preferable to the effective abolition of the Fourth Amendment. (If you can't ever know about or challenge a search and the Government does not need a warrant, then the Fourth Amendment ceases to apply whenever the President says he wants to spy on someone. Agree?)
4. Catch-22! I can't show you spying is currently happening because it's illegal for me to show you it's happening. But we know it happened until 2007 while Bush expressly denied it was happening. Want to put a bet on whether it's happening now? Do you really Bush suddenly stopped warrantless wiretapping? (We'll discover the truth when a Democrat becomes President.)
How do I know it's happening? Because if it WEREN'T happening, Bush wouldn't be trying so hard to authorize it with this bill? Right? I mean logically, how could the warrantless spying on American citizens NOT be happening? Then Bush wouldn't be fighting so hard!
This is not hyperbole. I simply began today wanting an explanation from my elected official for making a vote that he apparently has already said he disagrees with. Webb couldn't explain his vote and still hasn't. And that's where my original post began.
(And I began with a phone call and an email yesterday. When no one responded, I called this afternoon.)
And this -
"It's possible he was wrong, that he weighs too much his duty to protect the country against his duty to uphold the protections of the Bill of Rights"
As to the rest of your points, I think Mark Levine did a fine job in pointing out that making citizens views clear to their representatives is part of that whole representative democracy thing. You might be willing to wholly replace your voice with Jim Webb's, but I sure as hell ain't.
As to the six months argument? Right. How many times should Charlie Brown take a run at the football Lucy's holding, again? I don't really feel the need to stick in solidarity with those that are a little slow on the uptake.
Further, this silliness about being forced by desperate Republicans to abandon our basic principle so we can stay safe is exactly that - just silly. Extend the Protect America Act (abomination that it is) without the immunity. Bush veto's, and the Dems can tell America that Bush thinks that some piece of paper's financial wellbeing is more important than an American citizen's physical safety. Any Senator worth his seat should be able to win that argument.
Finally, you seem to be pushing the idea that Webb has some extra-Constitutional duty to keep everyone safe and sound. Let's take another look at the oath of office for the Senate, shall we?
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Gosh, it looks like Webb swore an oath to defend the Constitution, doesn't it?
"It is true that the temporary law expires in two days. It is also true that President Bush says he will not agree to any more stopgap measures. Finally, it is also true that allowing the law to expire would subject our wiretapping ability to more cumbersome procedures, and, if a backlog of cases develops in the FISA court, there would be an increased risk that terrorist plots could go undetected. Nevertheless, I would trust President Bush not to allow those increased risks to ever occur. It is fair to ask why I would trust President Bush. After all, the only reason President Bush was compelled to cobble together the law he seeks to extend is because his efforts to wiretap outside of the bounds of what was the law was uncovered by the New York Times. Sadly, President Bush's record is replete with other deceptions. However, as my model of a good President, Ronald Reagan, advised, the wise way to trust is to "trust but verify." I hope President Bush's veto threat would be as hollow as many of his other statements. I hope he'd come back to the table and bargain in good faith. If, however, he did follow through with a veto, I'd call on him to account to us as to how he will fulfill his promise to make protecting us his top priority, and this time do it in the full light of day in adherence to law and the Constitution."
And the thing is, most of the time such motions turn on facts on which the application of the law is a matter of degree and nuance. I may believe quite strongly in my interpretation of the Constitutional rights at issue, but others will disagree. There are times when a warrantless search and seizure are Constitutionally permitted, when admissions against interest come in, when an exception permits the introduction of otherwise hearsay evidence.
My point is that Webb's interpretation of the situation probably differs from mine. I personally would have liked to see the legislation lapse. But what I'm NOT willing to do is lash out at Webb for having a different interpretation. His interpretation doesn't mean he doesn't support the Constitution or wants to abolish it as you and Mark Levine have argued. This is what I mean by hyperbole. Both of you have been hyperbolic in your attacks on him for making a choice with which you disagree, imputing a meaning to his actions which clearly was not intended. It's the slippery slope argument come alive. Just as fervent gun supporters argue against any regulation because to allow it opens us to the slippery slope of governmental takeover and taking all the guns, so you and Mark Levine argue that any nuance in the approach to the FISA legislation will take us down the slippery slope to perdition and you're treating Webb as if that's what he intended.
His interpretation doesn't mean he doesn't support the Constitution or wants to abolish it as you and Mark Levine have argued.
Speaking of. You have any problems with Dick Trodden secretly hiring me to go to your clients' houses, look through their stuff for anything helpful, and then him immunizing me from any repercussions for that? You do? Huh. I wonder why.
This was an easy question, Catzmaw, and Webb fucked it up.
Re the Trodden question, of course I'd have a problem with it. But the thing is that Webb ALSO has a problem with it. His press release makes clear that he wanted to keep the telecoms liable. He decided to cast his vote AFTER realizing that he wasn't going to get his way. Your example is inapropos in that it involves state actors, physical things to be sought in the search, and a limited jurisdictional range with extremely constricted executive authority. Of course, Trodden wouldn't have the power to absolve his confederates. He lacks anything like executive authority or executive privilege or a legislative authority of which a substantial portion of which is willing to do his bidding. Moreover, no one was entering anyone's home and tossing their things. This had to do with the interception of satellite bounced signals and other communications over wireless and fiberoptic lines. It's not the same thing, or are you saying that the rules against search and seizure extend overseas? That someone in France who's talking to someone in West Africa on a signal that bounces off a satellite through a linkup in Arlington, Virginia has the same Constitutional right as a citizen to expect that his signal will not be intercepted?
And no, my example is spot on. Executive uses a private actor to engage in conduct that the Executive is prohibited from engaging in. Executive reaps the benefits of the private action, and secures immunization for the private actor against any future claims arising from that action. If you want to tell me that there's a substantive difference between physical papers and telephone conversations, well, I'll let you carry the burden of keeping a straight face on that.
So, he cast his vote for the bill after HE SPECIFICALLY AUTHORIZED RETROACTIVE IMMUNITY, regardless of what his press release states.
2) Are you really, in fact, stating that our communications are not our personal effects under the 4th Amendment? If so, then you believe the government has the de factor authority to tap any and all communications, and it becomes clearer why you are not bothered by this egregious legislation.
I am not trying to concoct straw men or put words in your mouth, so I will give you the benefit of the doubt on this point. The entire point of enacting FISA was because the government was inappropriately intercepting Americans' communications for purposes of governmental and political intimidation.
3) Your final point is dishonest in the extreme. No one here, or at least Mark or Sui Juris or I, is arguing that warrants are necessary to intercept pure foreign-to-foreign communications. No one is saying that those French and West African citizens are accorded the same 4th Amendment protections as you and I. In fact, Bush and the Republicans and Jay Rockefeller gave away the ghost as to what this whole fight really and truly is about when they did not just correct the one technical ruling of FISC last summer -- that foreign to foreign calls going through US switches do not require a warrant (again, however, it's pretty evident to me that FISC made this ruling because the letter and spirit of FISA wrt to Americans was being broken egregiously).
But if an American citizen is talking to a foreign person, then, yes, the 4th Amendment still applies. If the government has a legitimate purpose in surveilling these calls, all they have to do is convince a FISC judge (the same ones that apply over 99.9% of these warrants) for a warrant, and surveillance may proceed (with certain minimzation requirements, which are also brutalized in this legislation).
This legislation, pure and simple, is about covering the tracks of grossly illegal conduct and indemnifying the civil liability of powerful actors after they decided it was easier to infringe upon our 4th Amendment freedoms than to obey a simple and elegant law, FISA.
The Senator can feel free to explain why he wants to be a part of this type of scheme.
But Section 202 SUSPENDS Section 703!
It says "Notwithstanding any other provision of law"
(in other words, ignoring 703 and the Fourth Amendment)
All the Attorney General has to do is claim a surveillance activity was "in connection with an intelligence acivity involving communications" and "authorized by the President" and "designed to detect a terrorist attack" and guess what? No warrant. No probable cause. No court. Nada.
"in connection with" is a pretty broad standard. So if I send an email using the same email system (i.e. AOL) that the government thinks might detect a terrorist attack, I can be spied on!
And what's even better for East German-style Government: 202(b) allows the Attorney General (think Gonzales or his ilk here) to forbade a court to alert the public as to what's going on! And even if a court miraculously protects our civil liberties, it is illegal for that court to then inform the public that the Government even tried to spy on us!
This act would protect the Watergate burglars, would it not?
Don't trust my analysis? (And I'm still waiting for the Webb lawyers to call me) How about the Congressional Research Service
Go to page CRS-15 of http://www.fas.org/sgp/crs/int...
... such suits may be the only means by which those who may have been adversely impacted by such government activities may obtain any remedy for any injuries incurred. These injuries may have impacted First and Fourth
Amendment protected interests, and there may be no other means of vindicating those rights. In addition, the telecommunications providers provide the front line of defense of those rights against governmental abuse if the government demand or request is unlawful. In some instances, it may be argued that a telecommunications provider has a statutory obligation to protect customer records from unlawful access.35 Such arguments militate against affording relief from liability to any providers who may have permitted unlawful access.
In addition to these arguments, some have argued that, because the Administration has not shared information repeatedly sought by some committees of jurisdiction with respect to the role of the telecommunications providers in the TSP or other pertinent intelligence activities, the Congress does not have adequate information to determine whether relief for the telecommunications carriers is warranted.
Again, if it's all kosher, why do the telecommunications companies need immunity anyway? If there's no violation of the Fourth Amendment, the plaintiffs lose the lawsuit.
Incidentally, I have no problem with the Government indemnifying the companies, i.e. paying the sums required of all plaintiffs whose Fourth Amendment rights are violated. That would be a nice public way to punish constitutional violations adequately and not put the companies in the middle.
But to say that the Fourth Amendment violations may continue with impunity? That, my friend, makes the entire Fourth Amendment a nullity. If you can't sue to stop a Constitutional violation and the public's not allowed to know about it, how pray tell do we stop it?
By "trusting Bush and Cheney to do the right thing?"
I prefer allowing a court to exercise the checks and balances in our system to "blind trust of the Attorney General."
Webb prefers "blind trust." And that surprises me. I thought he was more skeptical of Bush than that.
But maybe his lawyers will call me and explain to me a constitutional protection that I don't see. Their failure to even agree to call me is a mystery.
Historically (civil war, wwI, wwII), there have been times in American History with ideology must be trumped by pragmatism. Webb is doing the difficult thing: trying to balance both. He wants to stick to the ideological beliefs he has, but admits the pragmatic problems.
Christ.
Moran's staffer said -- and I'm paraphrasing here -- Moran voted against the extension because he thinks the changes to FISA are unnecessary. He doesn't support telecom immunity and is happy to let the bill die with no changes to FISA if the Republicans keep playing games with this.
He said he was one of the "lonely 34." (But I think he'll have much more support when this comes to the House again.)
In other words, he did the RIGHT thing! I promised him fulsome praise.
And here it is: :-)
Webb is dead wrong on this one. This was one area where I had high hopes for him. He and the senate should have stonewalled any change to FISA, just as the President has stonewalled any effort to force him to bring any troops home. Webb has caved to the President's stonewalling on Iraq, too. We are not getting out "carefully" as he campaigned. McCain is planning for us to be there 100 years.
The imperial presidency reigns. Never in 60 years have I seen a lame duck president with such power to kow a Congressional majority in the other party. History will not be kind to Webb and others who failed to stand tall for constitutional government.
I'm very disappointed in our Senator and I need everyone's help while there's still time.1) Call 202-225-3121
2) Say you're a Virginia voter and you believe in the Fourth Amendment and you want to know why Webb supports the Government spying on American citizens without a warrant or any court oversight whatsoever.
3) If they say, "the bill doesn't allow this," ask him specifically how if there's no court oversight. Ask them if they trust George Bush only to spy on "terrorists" and if it's only "terrorists," than what's wrong with court oversight and probable cause as the Constitution requires?
4) Ask if Webb respects his oath to uphold the Constitution or does he consider it "optional."
5) State in the strongest possible terms that you expect Webb to filibuster this bill or any other attempt to override the Constitution. If he doesn't like the Bill of Rights, he should seek to amend the Constitution and change it lawfully.
6)Leave your name and number, and ask them to contact you regarding Webb's position oh the House bill.Only if about 100 of you call can we expect to change Webb's mind. He's drinking the Kool-Aid when he says that complying with the Bill of Rights is "cumbersome." Heck, it's worked for over 200 years....
I'm saying it's a useless and time-wasting exercise. Does anyone seriously think Webb didn't think about this carefully for a long time? That he didn't do his research? What, do they think we're talking George (I Never Met a Book I Could Read) Allen here? Moreover, it's not even an accurate account of the current state of the legislation. Here's the text of the bill
Authorizes the Attorney General (AG) and Director of National Intelligence (DNI) to jointly authorize, for periods up to one year, the targeting (electronic surveillance) of persons located outside the United States in order to acquire foreign intelligence information, under specified limitations, including prohibiting an acquisition intentionally targeting a person reasonably believed to be outside the United States with the significant purpose of acquiring the communications of a specific person reasonably believed to be located in the United States, unless done in accordance with title I of FISA. Requires: (1) certain targeting and minimization procedures to be followed; and (2) Foreign Intelligence Surveillance Court (Court) review of such procedures. Allows the AG to authorize the emergency employment of an acquisition of foreign intelligence if the AG: (1) determines that an emergency situation exists with respect to the acquisition; (2) informs a Court judge of such determination; (3) submits to the Court, within 72 hours, a request authorizing such acquisition; and (4) follows appropriate minimization procedures. Requires such emergency acquisition to terminate within 72 hours, unless the Court determines that the person outside the United States is a foreign power or agent. Provides transition procedures with respect to the targeting of U.S. persons located overseas.Requires the AG and DNI, prior to any non-emergency acquisition, to certify to the Court that: (1) the acquisition is targeted at persons believed to be outside the United States and that the targeting and minimization procedures have been or will be approved by the Court; (2) such procedures are consistent with requirements of the fourth amendment to the U.S. Constitution; (3) a significant purpose of the acquisition is to obtain foreign intelligence information; (4) the minimization procedures meet FISA requirements and have been or will be approved by the Court; (5) the acquisition involves obtaining the information with the assistance of an electronic communication service provider; and (6) the acquisition is limited to communications to which at least one party is reasonably believed to be located outside the United States.
Outlines legal procedures with respect to directives issued to communication service providers to provide necessary assistance to accomplish the acquisition, including directive challenges, failure to comply, standards for review, and appeals.
Requires the AG and DNI, at least every six months, to: (1) assess compliance with required targeting and minimization procedures; and (2) submit assessment results to the Court and the congressional intelligence committees. Authorizes inspectors general of the Department of Justice (DOJ) and elements of the intelligence community (IC) to review their agency's compliance with such procedures. Requires the head of any IC element conducting an acquisition of foreign intelligence information to annually review such acquisitions and report review results to the Court. Directs the AG to report semiannually to the intelligence and judiciary committees concerning the implementation of acquisition requirements.
(Sec. 102) States that: (1) FISA shall be the exclusive means for targeting U.S. persons in order to acquire foreign intelligence, whether such persons are inside or outside the United States, except in cases where specific statutory authorization exists to obtain such communications without an order under FISA; and (2) chapters 119 (Wire and Electronic Communications Interception and Interception of Oral Communications) and 121 (Stored Wire and Electronic Communications and Transactional Records Access) of the federal criminal code and FISA shall be the exclusive means by which electronic surveillance and interception of domestic communications may be conducted.
(Sec. 103) Requires the AG to submit semiannually to the intelligence committees copies of any orders of the Court or the Foreign Intelligence Surveillance Court of Review that include significant construction or interpretation of FISA, including any such orders issued during the five-year period before the enactment of this Act.
(Sec. 104) Revises provisions concerning the application for, and issue of, Court orders, including provisions concerning paperwork requirements and government officials who may authorize FISA actions.
(Sec. 105) Allows the AG to authorize the emergency employment of electronic surveillance under certain circumstances, including: (1) determining that an emergency exists; (2) informing a Court judge of such determination; and (3) applying for a Court order authorizing such surveillance.
(Sec. 107) Provides similar revisions and outlines similar procedures as in sections 104 and 105 above for the emergency employment of a physical search.
(Sec. 108) Requires the AG, after authorizing the installation and use of a pen register or trap and trace device on an emergency basis, to apply to the Court for an authorization order within 168 (current law requires 48) hours after the emergency installation and use.
(Sec. 109) Authorizes the Court to sit en banc when: (1) necessary to secure or maintain uniformity of Court decisions; or (2) the proceeding involves a question of exceptional importance.
(Sec. 110) Directs the inspectors general of DOJ and relevant IC elements to: (1) complete a comprehensive audit of the Terrorist Surveillance Program and any closely related intelligence activities; and (2) report audit results to the intelligence and judiciary committees. Authorizes necessary legal and other personnel to complete such activities.
Why don't all the people with questions just go to this link here and review the thing for themselves instead of listening to a lot of breathless nonsense about the abolition of the Constitution? The FISA Bill
C'mon now. You're a lawyer. How about putting up the legislative summary of the ENTIRE bill instead of just a part of it? Did you really think we'd fall for that?
Apparently you believe that amendments are exactly the same as the bills, so here's the link to which you refer, found at Retroactive Immunity It's way too long to post here. And here's the link to the other major amendment to the legislation: Procedures for Implementing Statutory Defenses.
Now, since you believe that this whole thing transpired because Webb just didn't care and the Dems just caved and all that, I'm posting the link which shows all the attempted amendments and actions that took place surrounding this bill. FISA and All Senate Actions and Amendments Noted.
One of the big fights about this whole deal was that, of the four (4) Congressional committees in which FISA amending legislation was marked up, the SSCI was the ONLY committee product that contained retroactive immunity/amnesty for telecommunications companies that broke FISA between 9/11/2001 and 1/17/2007. So, of course, under that brilliant tactician Harry Reid (this is actually not tongue-in-cheek) it became the base bill in the Senate. All 3 other bills did not contain this egregious immunity provision.
Dodd's amendment, which, again Senator Webb voted against, was to strike Title II from the legislation, thereby removing retroactive immunity provisions.
Hence, the "breathlessness".
I.
"the bill as reported by the Senate Select Committee on Intelligence would go further than the Protect America Act by providing retroactive immunity for civil lawsuits against electronic communication service providers that were alleged to have cooperated with the Government in surveilling Americans' communications between 2001 and 2007, contrary to law."
II.
"In December 2005, the American public learned for the first time that shortly after 9/11 the President had authorized the NSA to conduct secret surveillance activities inside the United States completely outside of FISA, and without congressional consent."
[To reiterate: "inside the US" and "completely outside of FISA" "without congressional consent"]
"Nevertheless, surveillance under this program, commonly referred to as the Terrorist Surveillance Program, or TSP, continued until January 2007, at which time the Attorney General announced that the program would finally be placed under the jurisdiction of the FISA court."
[And Catzmaw apparently takes the AG at his word without having the lawyerly skepticism to find out what the definition of "program" is. I think the AG is referring to THAT program (the TSP) while instituting a NEW program (codename: I don't know) to spy on us all. There are lots of reasons I believe this. In fact, I think it's obvious if you carefully parse Gonzales' statements under oath about "another program" but that's beyond the scope of this discussion.
The Report goes on to say that the Protect America Act didn't go into effect until August 2007.
So from January to August 2007, we had to rely on good old FISA (as amended including amendments after 9/11)
And guess what America didn't collapse by having to abide by the FISA and the Fourth Amendment.
I doubt it will collapse from another temporary lapse. But if Webb thinks it's a real danger to America, I again beg and plead for him to TELL US HOW!
And finally:]
"The Senate Intelligence bill also included new oversight provisions, but left open several loopholes that could permit the same kinds of extra-statutory surveillance that took place in the years following 9/11. In addition, the Senate Intelligence bill added provisions not formerly included in the PAA that would retroactively immunize those private sector companies that may have cooperated with the Government's surveillance activities conducted outside of FISA in the years following 9/11"
"Congress is prepared to grant the Administration the authority it needs to surveil targets overseas. But the unilateral decision by the Executive in the years following 9/11 to surveil Americans' communications contrary to FISA illustrates the need for Congress to provide clear statutory protections for surveillance that impacts Americans' privacy rights. Both the Intelligence Committee's bill and the Judiciary Committee's proposed amendments would permit the Government, when targeting overseas, to review more Americans' communications with less court supervision than ever before. While the Senate Intelligence bill's provisions governing the Government's ability to conduct electronic surveillance improve upon the PAA, they do not afford adequate protections for the rights of Americans."
"Additional protections are of critical importance. The rules governing electronic surveillance affect every American and remain the only buffer between the freedom of Americans to make private communications and the ability of the Government to listen in on those communications. In our `Information Age,' FISA provides Americans a fundamental bulwark against Government abuse. In the Committee's view, the improvements contained in the Senate Intelligence bill do not go far enough in ensuring that Americans' privacy rights are safeguarded. Additional protections can be added without interfering with the flexibility the Government needs to conduct overseas surveillance."
[It's a fascinating report. I urge everyone with an interest in this to read it in full. The Senate Judiciary has a great bill, that prohibits bulk collection, makes sure the President obeys the law, allows all kinds of surveillance if there's a legitimate need, etc. But that wasn't the bill voted on. (Way to go, Caving-Democrat-Extraordinaire Harry Reid!)
In other words, if Webb stands firm and doesn't cave, we might get a good bill, if not now, at least if we get a Democratic President.]
The President's poll numbers may be down .... but congress is even lower. So who are you going to trust?? Your elected representatives, specifically Senator Webb .... or the other side of the aisle?
I am "Always Faithful" that our outstanding Senator will do the best he can given the situation in front of him and act consistently in our best interest.
I thank Catzmaw for his insightful arguments that kicked off this fire storm of exchanges .... Cool your jets dogfighters .... or better still .... direct your energies to electing a strong majority of Democrats and Libertarians to the Senate.
I ain't anti-Democrat. I'm pro-Democrat. But when my Democratic Senator votes the wrong way, I ain't afraid to call him out!
That's our Senator. It's easy to criticize him while sitting at a computer terminal, dropping in and out of the discussion at will and going about one's daily life. It's a lot harder to be in his shoes, trying to do the best for his constituents, his beloved veterans, and the country.
I'm a long-time supporter of Senator Webb. I voted for him in the primary. I had him on my show. I worked hard to get him elected. I'm proud to say my show talked about George Allen's racist past PRE-macaca. I like to think I helped set the kindling for which "macaca" provided the spark.
It's only because I had such faith in Senator Webb that I was astounded by his silence and refusal to explain his vote yesterday. Hopefully, I'll talk with his legal staff tomorrow and they'll give me an explanation.
It's been good discussing this with you. Since you appear to agree with me that Webb did the wrong thing (even though you are defending him), why can't we both agree that we like and respect Senator Webb and both also agree to work together to urge him to do the RIGHT thing.
Let's both ask all who read this blog to ask Webb to:
Stand firm with Senator Dodd and filibuster any attempt by the House-Senate conferees to abandon the House bill and cave in to the Bush/Republican/Senator Rockefeller monstrosity on which Webb voted aye yesterday.
If you'll work with me, I'll tone down the hyperbole you find distasteful. Really all I wanted was an explanation from Webb's staff.....
He's already said he prefers the House bill. Good! Now let's urge him to filibuster any significant weakening of it.
Thanks to Sui Juris, Ron1, and the others who are keeping the pressure on. I hope all of you will, along with me, call Webb's office tomorrow.
Since you profess respect for Senator Webb perhaps you can stop calling his failure to answer your demands for immediate answers a "refusal" or imputing bad reasons to his failure to give you instant answers. You claim to be a supporter, but it's disrespectful as hell to go around screaming in numerous diary entries that he's "abolishing" the Constitution and the Fourth Amendment. It's tantamount to calling him a fascist, and you may think it's all part of the rough and tumble of politics but he doesn't seem to be big on political games. And how about laying off the "we have to hold him accountable" crap like he's a fractious six year old?
My experiences have made me cautious about having unreserved approval of most people; however, when I decided to support Jim Webb I had to try to figure him out. I read all of his articles that are online, ordered and read all of his books, have occasionally seen him at different functions, and have spoken to him several times at those functions. I read the Nightingale's Song. I've watched his career in the Senate and tracked his legislation. Webb is one of those people about whom you can learn a lot in reading his books. He has recurrent themes and they are strongly about mistrust of power, misuse of our military, unjustifiable loss, and the venality of the political process. He thinks in broad strategic terms, but always with an eye to the human cost of policy decisions. He is deeply patriotic. Obedient to duty he is yet able to question authority and to think outside the box. There is within him a tremendous anger at the casual disregard of the lost or destroyed lives of our military.
So I've done the rare thing for me when it comes to Webb. I've decided to trust him and trust his judgment. This does not mean I always agree with him always, but I think he always has a good reason for his legislative decisions whether he explains his reasons or not. I agree that we should let Jim be Jim and that you should continue to stand by him as a good soldier does for a good leader. Thank you for your service.
The webs that men build in the murky area of privacy are complex, and while I've been retired from the "code breakers" since 1979 or so, I have to have some faith in the men and women I left behind NOT violating our 4th amendment rights even is the law permits violation. My troops would never have done it; accidental intercepts would be erased.
No Idea what Jim Webb was told to get his vote, and he may not be free to tell us, BUT BE SURE===Jim Webb Loves all of us and will never do anything to actually BRING DOWN Constitional Government.
I could be wrong, but I don't think I am. Stay with Jim through thick and thin.
I agree that we should let Jim be Jim and that you should continue to stand by him as a good soldier does for a good leader.
We could have saved so much time, if I'd understood that you viewed us as soldiers, and not citizens. Now it all makes sense.
When you pick someone for a job and place your trust in him do you always call it "blind trust" or can you accept that when we say we trust someone we mean until he proves otherwise? I said I trusted Webb. I didn't say I think he's right. He's got his reasons. I may disagree with his reasons, may think they're wrong or he's placing the balance in the wrong place, but at the heart of it I do not regard him as a "sell-out" as you have characterized him, nor do I think he's suddenly declared war on the Constitution as Mark Levine keeps opining. When I say I trust him I'm saying that I believe he's not a sell-out and he's not a Constitution-hater. Can you show me otherwise?
So I've done the rare thing for me when it comes to Webb. I've decided to trust him and trust his judgment. This does not mean I always agree with him always, but I think he always has a good reason for his legislative decisions whether he explains his reasons or not. I agree that we should let Jim be Jim and that you should continue to stand by him as a good soldier does for a good leader.
I'm not sure how I can address the issue of trust without being perceived as even more insulting. Trust isn't a binary concept, contrary to the way you're trying to present it. I have and will trust all sorts of candidates. Will I trust any of them with the sort of unquestioning trust you seem to be advocating? No, I don't think so. Nor do I think I need to (or should). And I hope most of my fellow voters feel the same way.
Speaking of trust, Webb has a (admittedly small) pattern here of trusting the Administration over the Constitution on a really important issue. Apparently, questioning his judgment here upsets you greatly. Well, I'm sorry for that, but it's hardly a good reason for me to sit down, shut up, and be a good solider.
Small, but perhaps significant, point - despite your repeated claim that I have - I have not called Webb a "sell out." I said "Webb Sells Us Out." As in he traded his constituents' interests for those of the telecoms and the Administration's interest in hiding its crimes. Calling someone a sell-out implies a compromise of their own values for some other interest. I have no idea whether or not this was a sell-out for Webb - perhaps it's perfectly consistent with his values.
When I say I trust him I'm saying that I believe he's not a sell-out and he's not a Constitution-hater. Can you show me otherwise?
~
As to Old Solider, I found it pointless to engage further with him, as he was pretty clearly more interested in games than a good faith argument. Given that I had no context by which to know him outside that engagement, I was happy to walk away from it with nary a regret for doing so. If that makes me come off as cynically superior, so be it. In contrast, I'm pursuing this here because I'm familiar with your writing and (watch for it) trust you to engage in a good faith argument on the merits, Catzmaw.
Now, let's be clear here. I AM NOT ADVOCATING UNQUESTIONING TRUST of anyone, okay? Are we straight on that? Do I have to say it again? NOR does it upset me that Webb is apparently trusting whatever information he got from the Administration. I've already made it clear that I don't trust the Administration and thus far have not seen anything that would justify his apparent trust in whatever information he has been receiving. But I'm also not sure this was not part of some other type of strategic maneuvering on his part, nor that maybe the information he has is sufficient to one of his background and experience to decide that it was more important to keep the legislation alive than to let it die. Remember, this whole thing started with an argument about whether he was chucking the Constitution (Levine) or
selling out his constituents' interests for those of the telecoms and the Administration's interest in hiding its crimesas you wrote. You are the one implying that there can be only one, venal, reason for Webb's decision. I'm saying there are several reasons of differing validity and credibility available to explain this decision. That's not the same as unquestioning trust.
Regarding a failure to defend the Constitution, inherent within the Constitution is the duty of our elected officials to defend our country. Read the Preamble:
establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the blessings of Liberty to ourselves and our prosperity ...Our civil rights can never be protected in an insecure environment. That's why none of them are absolute. Competing interests, always the competing interests.
Our civil rights can never be protected in an insecure environment.
As for insecurity, who's reaching now? There is indeed a certain amount of insecurity required if we are to have our civil rights, but there can't be chaos. My right to go wherever I want ends at your property line. My right to say whatever I want ends when I actively promote violence. The list of limitations and exceptions to our rights is huge, so it is understood that we cannot have rights without a fundamental level of security. The security can only be provided by the governing authority. It can't be provided by ourselves - or ourselves alone - because that's the same as vigilantism. Unfettered private action constricts rights as quickly as unfettered governmental action.
Unless you're Grover Nordquist and want to drown the government in a bathtub you probably agree that the government has the duty to "ensure domestic tranquility" and that can only be accomplished through competent and effective police and prosecutorial agencies with the power to conduct investigations and uncover evidence of wrongdoing. Can't be done any other way. This is what I mean by security. Just so you don't come back with another misstatement of my position let me be clear that I am NOT advocating unfettered governmental power, NOR am I advocating sweeping investigative authority which circumvents the protections offered by the Bill of Rights, nor do I advocate trusting the government to know what's best and to make the best decisions. I BELIEVE strongly in the system of checks and balances. I BELIEVE strongly that our civil rights should be pre-eminent and that the security of which I speak is not like what we see in Singapore, but that which is necessary in order to secure those rights and protect our people. Of course, when we start talking about degrees of necessity we are once again back at my old friends, the competing interests.
Good old competing interests. You may scoff. Come to think of it you have scoffed, but let me ask you: do you believe in hate crimes legislation, i.e., that if someone bashes someone over the head because the victim is gay or Asian rather than because the perpetrator just doesn't happen to like the victim do you think it should receive an enhanced penalty? A lot of people excoriating me in this diary are probably okey dokey with hate crime legislation, even though it is essentially thought crime. A lot of people think it's appropriate to shift the presumption of innocence in a drunk driving case to a presumption of guilt if the little machine SAYS you're guilty by reporting a high BAC. A lot of people think it's appropriate to build a civil forfeiture provision into a drug prosecution, thus providing an incentive to the governing authority to seek out and charge drug defendants so as to seize their property. And the courts have upheld every single one of these cases. Constitutional law isn't pretty and it isn't set in stone.
No matter what Webb was told -- and Dodd and Obama and 29 other Senators were apparently told the same and they voted the right way (are they less patriotic?) -- there's no getting over the fact that Webb voted to retroactively legalize Bush's illegal warrantless wiretaps.
How do we know they were illegal?
Simple. The telecoms and the Government only need immunity if the wiretaps were illegal. If they were legal, they wouldn't need the immunity because they'd get the lawsuits dismissed on the merits. And to win these lawsuits, you usually have to show a serious bad faith Fourth Amendment violation.
How do we know they were from Bush?
Because the bill only legalizes illegal wiretaps from the "President."
So what illegal Bush wiretaps did Webb vote to retroactively make legal?
Ah, there's the rub. WE DON'T KNOW. The Administration won't tell us. They won't tell Webb. They won't tell House Judiciary Chairman John Conyers.
See http://tpmmuckraker.talkingpoi...
As you can see, Conyers knows more than Webb on this. And he doesn't know enough.
So I ask again: why did Webb vote for this bill?
He owes Virginians an explanation.
I have just been suggesting that there's more to the situation than we've heard so far, and I'm willing to hear the explanation. I'll probably still reject it as adequate for my preferences on the Fourth Amendment, but I won't demonize him for the explanation unless it really is without foundation in law or reason.
I'm not trying to "pile on," I simply disagree. In my view, it's appropriate to "stand by" someone unless they do something that you think is not right, at which point you raise questions, which is exactly what Mark Levine's doing.
A GREAT piece since all the Cats & Dogs came out to say and play.
Folks here should really examine the Block & Blame strategy the Republicans have implemented. The context of these votes might be better appreciated.
I stand with Webb ... he's smarter and braver than I am and I'm proud he's my elected REPRESENTATIVE.
Oh, one more sexist thing .... Happy Valentines Day Catzmaw.
And Happy Valentine's Day to you and all the others in this forum!
You know how many times I've said that oath .... I think Senator Webb has a few more of those up on me.
The issue is whether of not Senator Webb did his best and the right thing by an oath he has taken (and given) many a time. I do trust him greatly .... particularly to do the right thing. In fact I would say within Congress Jim Webb is:
"First to fight for right and freedom and to keep our clean .... he is proud to have the title of United States Marine."