My Disagreement with Jim Webb Re Retroactively Legalizing Bush's Unconstitutional Spying on Us

For more than two days now, I have called and emailed Senator Webb's office trying to get an explanation for his vote to allow Bush full retroactive amnesty ex post facto to spy on innocent Americans in violation of the Fourth Amendment to the Constitution.

Needless to say, his vote upset me, not only because I respect the Constitution of the United States but because I helped elect Jim Webb and he ran on a campaign of strict respect for the Constitution.  Here's Jim Webb during his campaign:

The danger of the abuse of centralized power is an historical constant.  Americans should indeed worry about a centralized government that has the power to listen in and monitor the conduct of average citizens, as well as the power to listen in and monitor the conduct of their political opposition.  Those powers (and that conduct) are a staple of authoritarian and totalitarian societies.  I'll never forget my visit 10 years ago to the defunct HQ of STASI in East Germany, which had kept informant files on millions of East Germans.

I am not making any allegations against this Administration.  What I am saying is that the Constitution deliberately built in checks and balances among the three branches of government in order to prevent such conduct.  If the executive branch is not sharing the information it has collected from NSA wire taps, what gives it the authority to keep it to itself, and why is it so skittish?

The history here is complex, I admit.  And I will devote my entire television show on Fairfax Chanel 10 next Monday at 7 pm (ironically on President's day) to explaining it and will post it here on Raising Kaine, but here's a summary.  This summary is admittedly not complete.  I will strive to be complete on Monday.

pre-1978
Lots of illegal unconstitutional Government spying

1978-today
FISA (Foreign Intelligence Surveillance Act) allows a secret court to grant a warrant, has civil liberty protections; is amended and improved several times, including after September 11, 2001

2001-Jan. 2007
Bush violates FISA by asking telecommunications companies to illegally and unconstitutionally spy on millions of innocent Americans.  The exact scope of this breathtaking lawlessness is still unknown as Bush refuses to obey Congressional subpoenas that legally require him to inform Congress about his lawlessness.

December 2005
Bush's illegal warrantless wiretapping is exposed by the New York Times.  Former AT&T technician Mark Klein admits to spying for the Government on ALL of AT&T's American customers in San Francisco without a warrant or any claim that all of us are terrorists.  The ability is breathtaking and, according to him, can spy on virtually any internet traffic.

Jan. 2007
The FISA Court threatens to stop giving Bush warrants he can use in Court unless he agrees to obey the law.  Bush promises to bring one surveillance program (but not necessarily all) under FISA.

Aug. 2007
Bush threatens Congress that if they don't IMMEDIATELY give him broad power to surveil Americans without a Fourth Amendment warrant, all hell will break lose.  Congress cravenly agrees and passes the "Protect America Act" with one saving grace: the law expires in six months.  The PAA gives Bush extremely broad powers way beyond FISA to spy on vast numbers of innocent people without a warrant.  The exact scope of the way he's used these powers is unknown because Congress has little oversight capability under PAA

November 2007
The House passes a carefully crafted bill known as the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective)("RESTORE") Act (HR 3773) that carefully balances civil liberties, updates FISA, and protects the Fourth Amendment.  

The Senate is stymied by Bush's new demand:  Bush wants not only the PAA extended for six years, he also wants FULL RETROACTIVE AMNESTY for all of his illegal acts. He says this is to protect telecommunications companies, but refuses a compromise proposal for the Government to reimburse the companies for the illegal things Bush ordered them to do.  The real purpose of the amnesty is not to protect telecoms but to hide Bush's own illegal warrantless mass spying.

Webb, like most Democrats, supports the House Democratic RESTORE Act rather than the unconstitutional "PROTECT BUSH's ILLEGAL LAWBREAKING" Act (my name for it of course), otherwise known as S. 2248

Feb. 1 2008 - The PAA is about to expire.  The Democrats in both Houses ask for a 30-day extension.  Bush says he will veto such a bill.  He wants it his way immediately now.  Finally they agree on a 14-day extension.

Feb. 12, 2008 - House Republicans join with some House Democrats to veto an additional 21-day exension of the PAA. Bush praises their actions, saying, in effect, that even if Americans have to die, he will let them die to save the telcom companies. (It's all a bluff, of course, because without PAA, FISA still holds and even warrants under PAA have a one-year expiration.)

Later on Feb. 12, 2008 - Senator Webb and 17 other Democrats break with the majority of their party and vote a permanent retroactive amnesty to Bush for his prior illegal unconstitutional warrantless wiretapping.  Webb and others vote against Senator Dodd's amendment to take this part out of the Bill.

I call Webb's office that day.  It's after 5 pm and no staffer is available to discuss it with me, but a very nice lady on the phone chats with me and agrees to pass on my message.  I also send the office an email and say I'll call back tomorrow.

I don't have a copy of that email which went through Webb's official website.

Feb. 13, 2008 - In the morning, I call Webb's office.  I have a conversation with a staffer that I have detailed on this site.

http://raisingkaine.com/showDi...

I post this conversation at Raising Kaine at 1:47 pm.

At 3:22 pm, I get this email from Jessica Smith of Webb's staff (cc'd to Lowell and Josh Chernila)

Mark: Did you really speak with one of our legislative staff? After asking around, I just learned that you had a conversation with one of our staff assistants at the front desk-NOT one of our legislative aides who knows the true substance of this measure. I believe you asked if he was a lawyer, and he responded: "No, sir, I'm not. I just answer the phones."

This is obviously a very highly-charged and complicated matter-and I understand that you may have a difference of opinion from the Senator. It's one thing to comment on the Senator's vote, but I don't think it's appropriate to ask one of our young front desk assistants to explain the nuances of the FISA law. You are a lawyer, I'm told, and you should understand better than anyone that this is an unfair request.

I would ask you to pull down this post-since it's erroneous and not, in my mind, appropriate-and (should you feel compelled) instead offer commentary that speaks to the measure or the Senator's vote alone-and does not attack one of our young staffers.

On a policy note, I urge you to consider that the Senator spent two months working with Senators Feingold and Tester to construct and offer an amendment to FISA designed to add further safeguards against Executive Branch surveillance on innocent Americans. He also supported two measures to limit immunity for telecom companies, if not strip it entirely. I know his final vote might not satisfy you, but he took a number of active steps to attempt to improve the final bill.

It may also interest you to know that Senator Webb just sent a letter to the Senate-House conferees, asking that they adopt House provisions that better protect Americans from Executive Branch overreach. I attached it for your review.

Again-I take issue with your post. I don't believe your presentation is accurate or appropriate. I hope you will take the appropriate action to correct your commentary.

[Lowell: do you exercise any editorial oversight over what gets posted on Raising Kaine?]

Jessica

Her email also attaches the a letter Webb wrote to the House-Senate Conference on the bill stating how much he regretted his amendments to the Senate bill failed and how much he preferred the House RESTORE Act over the bill he voted for.

I send her back the following email:

Dear Jessica Smith,

When the person answered the phone, I asked to speak with someone in charge of the telecom immunity issue.  The staffer said "I can answer that."  And we had the discussion I described on the blog.  The staffer did say he was not a lawyer.  (He did not say "I just answer the phones.")  When he said that he was not a lawyer, I told him I was a lawyer and immediately asked to speak to a lawyer on the staff.  He said that was not possible.  I asked if there were lawyers on the staff, and he said there were.  I asked if he could ask one of them to call me.  He sounded doubtful about it but at my request, did take my phone number as well as my name and address.  No one has yet called me.

Everything I said happened in the telephone conversation actually happened.  Ask the staffer.  I don't think I misquoted him or me.  I was respectful and told him I was a big Webb supporter and helped to get him elected but was very disappointed in Webb's vote on this bill.  There's nothing erroneous about the post whatsoever.

If one of your staff lawyers -- or yourself -- would like to call me and discuss Webb's vote for me (which, after all, is what I asked for in the first place), I will be happy to put up a subsequent post detailing our conversation.

I did not attack one of your young staffers.  I did not mention him by name.  And frankly, I don't think it's his fault.  It appears that Senator Webb has simply not explained to his staff the reason for his vote.  Please don't give your staffer a hard time.  Even the letter you sent me doesn't explain Senator Webb's vote.  That's the Senator's fault, not the staffer's.

And it's that explanation which I seek, since Senator Webb ran on protecting the Constitution but now seems ready to abandon the Fourth Amendment (although he would prefer not to).   I don't know why he would vote for a bill he disagrees with.  That's why I called.

If I'm wrong about the Senator's willingness to abandon the Fourth Amendment, then please, I would like you or any lawyer on Webb's staff (or committee staff or the Senator himself!) to please call me and explain his vote.  That's all I ask.  That's all I've ever asked.  I specifically said that a letter would not suffice because the letter to me would only arrive after the House-Senate Conference Committee and the final vote on the bill.  As I wrote in my post, there's still time for Senator Webb to stand firm and vote against the unlimited right of the President to spy on Americans without any court oversight or probable cause in direct violation of the Constitution.  And that's what I'm asking him respectfully to do -- and urging my fellow citizens to do the same.

Part of citizen democracy is explaining to the citizens what they can do to protect the Constitution while they still can!  I believe Senator Webb is an honorable man and if he actually knows what's he doing -- rather than believing vague assertions from intelligence operatives that themselves are not restricted by current law -- he will stand with the House of Representatives and the majority of Senate Democrats and vote to uphold the Fourth Amendment.  I know from your letter that that is his preference, but given that, I don't understand his vote.   I respect Senator Webb.  I've had him on my television show.  But I have the right as a citizen to know why he voted the way he did.

As for the policy note, I urge you to call me so we can discuss this.  Specifically, I want Senator Webb's explanation on his vote on the Dodd Amendment.  I'm glad he supports the House provisions, but I would like him to join Senator Dodd in his commitment to filibuster any bill that does not include them.

My presentation was accurate and appropriate.  If you or the staff call me, I will modify the post if you can articulate to me the reason Webb voted the way he did.

Thank you, Lowell, for allowing my post to stay.

Jessica -- or whomever you delegate -- I look forward to your call.

Mark Levine
[my phone number]

And then, just to be clear that my complaint was with Senator Webb and not his staffer, I posted this on Raising Kaine.

http://www.raisingkaine.com/sh...
(Failure to Explain Vote is Senator Webb's Fault, Not his Staffer's)

In another email to Jessica Smith, I wrote

Dear Jessica Smith,

After excoriating for talking to a non-legal staffer (and unfairly involving Lowell, since your complaint should be with me, not him), it is the end of the business day (5:45 pm) and you still haven't had a legal staffer contact me.

All I want is an explanation.  That's all I want.  Frankly, it's my right as a politically aware Virginia citizen.

Why did Webb vote against the Dodd Amendment and vote for this bill? Maybe the answer is it was a mistake?  He didn't know what he was voting on?  He promises not to do it again and will support the Dodd filibuster?

If that's the answer, I will immediately post on all the liberal blogs my praise for Senator Webb.
But you give me no answer. And that is incentive for me to do more than just write on Raising Kaine.  You should know that I have a radio show on WPFW, on the HORN, and a television show that reaches 1/3 of Virginia voters in Fairfax, Arlington, Alexandria, Loudoun, and Prince William counties.  Topic A this Monday will be the telecom bill and Webb's vote.  In fact, I hereby invite him now to come on air and explain his vote to the public.  I believe in giving the Senator every opportunity to respond.  And I'm sorry that the Senator does not apparently believe his constituents deserve an explanation for his votes.

Frankly, it appears to me you're stalling until Webb can cravenly vote for the House bill when the Democrats -- as they are wont to do lately --cave into Republican demands to shred the Constitution.

Please call me.  I'm not just a radio/TV host.  I'm a constituent.  And I'm not the only constituent wondering why Webb has backed down from what he claimed to believe in when he ran for office:  the Constitution.

Mark Levine

P.S.  I do agree it's not the staffer's fault, which is why I just posted the following on Raising Kaine.
http://www.raisingkaine.com/sh...
(Failure to Explain Vote is Senator Webb's Fault, Not his Staffer's)

I then received the following from Webb's staff at 6:39 pm:

Jessica and I (Kimberly, Webb's Press Secretary) have been on the road to Richmond for the past 2.5 hours in horrible weather and have been unable to check or respond to your email.

We have provided you exactly what we have to other constituents that have asked about his vote which are his statement and letter.

Sen. Webb did not support the Dodd amendment because he felt it was a bit too broad -- in that it eliminated immunity in all circumstances.

Instead, Sen. Webb supported the two amendments that would have allowed consumer lawsuits to proceed in many circumstances, such as where telecom companies acted in bad faith to aid government surveillance.

Moreover, Sen. Webb wrote the conferees today urging that the Senate's full immunity provision be rejected in conference committee.

It is apparent that you disagree on his vote on the Dodd amendment but I hope that you will be satisfied that we have provided a more detailed explanation.

Best,
Kimberly Hunter

And I wrote back:

Thank you for responding.  I do appreciate it.
However, I still would like to talk to a lawyer on Webb's staff about the legislation.
Could someone please call me tomorrow (or tonight)?  We can set up a time for the phone call.

If I don't understand the bill, this person can explain it to me.  (As a former Congressional attorney, I've drafted lots of legislation in the past.)  I might even publicly support Webb's position if I understood it.

But as I understand what you've written, if Cheney decides to spy on a Democratic Senator calling his wife in Canada, and the telecommunications company (in good faith!) simply "follows Cheney's orders," Webb would allow that conduct to occur with no checks and balances of any court or any warrant or any "probable cause" to stop it, right?

If not, precisely what stops it?  That's why I need to talk to a lawyer on Senator Webb's staff who can walk me through the bill and show me what he believes stops this abuse.

I do appreciate Senator Webb's letter to the conferees.  But I want to know if he will stand firm and vote AGAINST the bill if it doesn't include the House provisions.  It sounds like you're saying he'll cave into Bush on this one.  Again, if I'm wrong, let me know.

Incidentally, Kimberly, I plan to devote my entire television show Monday to this question.  It's true I plan to be quite critical of Senator Webb (as well as Bush and all the Republicans and the other Democrats) that voted to restrict the Fourth Amendment.  However, I would invite Senator Webb, you (Kimberly) or anybody else that Webb would like to choose to come on the show and publicly defend his position.  If you like, I'll even co-host the show with a Republican who supports Webb's position to be perfectly fair.

How about it?  If Webb defends his vote, he should be willing to do so publicly, right?  It's a live one-hour show with telephone calls allowed by the public.  Monday at 7 pm at Fairfax Channel 10 on 2929 Eskridge Road (Fairfax, VA).

Sorry to hear about your drive in horrible weather.

Mark Levine

P.S.   I assume your letter to me is for public attribution.  If I don't hear from you by tomorrow, I'll post it.  But I prefer setting up a telephone appointment.  Or better yet, I'm free to meet with Senator Webb personally.  I don't live too far from the Capitol.  I'll call tomorrow to set up a personal appointment.

Feb. 14, 2008 morning - I make two phone calls to Webb's office.  I ask for Jessica Smith.  When told she is unavailable, I repeat my request to speak to a lawyer on staff.  I say I simply want to understand Webb's vote. And if she doesn't want me to talk to non-lawyers, that's fine.  Let me speak to a lawyer instead.

Feb. 14, 2008 afternoon - With no response from Jessica, I ask to speak to Webb's scheduler.  She is unavailable too, so I leave a message explaining who I am and asking for a personal appointment with my Senator.  For good measure, I also send the following email:

Hi Lisa,

I left you a phone message.  I am a constituent of Jim Webb's and am very concerned by his vote on the FISA bill.  I would like to meet the Senator and discuss it with him.  May I arrange an appointment?

Perhaps if he will explain his reason to me -- or if a lawyer on his staff could explain the reason to me -- that would obviate the need to meet with the Senator.  But as of now, I would like to please set up an appointment.

Full disclosure:  You should also be aware that I host a radio show/television show/blog, and I have been quite critical of the Senator's vote on Raising Kaine.  I plan to post critically on a number of liberal blogs as well as publicize the emails from your office.  I am certainly willing to discuss this issue publicly with Senator Webb on television or radio if he likes, but I seek to meet him as much as a constituent as a member of the media.  I seek to understand the REASON for his vote.  (His press release does not explain this.)  You should also know that I am a former Legislative Attorney to a high-ranking Democrat on the House Judiciary Commitee, so I am perhaps more knowledgeable about the FISA Act than your average constituent.

My work number is xxx-xxx-xxxx
My home number is xxx-xxx-xxxx

Mark Levine

Feb. 14 - 4:10 pm
I receive the following from Webb's scheduler:

I have received your request.  Thank you.

Feb. 15 It's now almost 24 hours since that last email, and I haven't heard from Webb's office.  Fridays are slow in Congress and they're about to go on recess.  I'm still hoping for a response.

I am proud to say the House stood firm against President Bush yesterday, so the urgency of meeting with Webb quickly has passed.

I still think there's time for all of us to convince him to change his position.  Now that the bad old PAA is expiring, America will see that there's no real danger in going back to FISA already while insisting that the House RESTORE Act, rather than the Senate ("Protect Bush at All Costs to Our Constiution") Act (my name for it of course) becomes law.

I'm still hoping for a meeting with Webb.  I had not orginally planned to make public these emails but so many of you have emailed me asking about them -- and Webb's office has been, in my view, so dilatory in preventing me from talking to staff lawyers, that I thought all of you should know the entire story.

I still respect Jim Webb.  I still like most of his votes.  And I know he prefers the House bill over the Bush/Senate one.  I just want to help give him the same kind of backbone that finally made Nancy Pelosi say "enough is enough" yesterday and stand up to the President.

Maybe if he or his staff would just explain to me and the rest of Virginia the reason for his vote, we could all calm down and get something accomplished.

Or maybe, just maybe, with the help of everyone who has read thus far, we can convince him to change his mind and join Senator Dodd and the majority of the Senate Democrats in filibustering any attempt to give Bush retroactive immunity for his illegal, unconstitutional wiretapping of innocent American citizens.

Remember:  if it were legal, Bush wouldn't need the amnesty.

We're not asking Senator Webb to change his views on this issue.  We're only asking him to STAND FIRM on the views he has already expressed publicly.

To those who have actuallly read this far of perhaps the longest Raising Kaine post ever, thank you for your patience.

And now feel free to criticize me with abandon.  I can take it.

MARK LEVINE
Mark@RadioInsideScoop.com
www.RadioInsideScoop.com

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