Wednesday, February 13, 2008

A Dip in the Slough of Despond 

After attempting for several hours to compose a post on the defeat earlier today of the Dodd/Feingold amendment, which would have denied retroactive immunity to the telecommunications companies that took part in the administration's warrantless wiretapping program, we have succumbed to despair. We do not have it in us. Thirty-four years after his impeachment and fourteen years after his death, Nixon finally has the America he wanted, a nation in which, "when the President does it" -- or, by extension, orders it -- "that means that it is not illegal." Should the Senate version of the FISA renewal legislation pass, as we expect it to, Nixon's ghoulish travesty of the foundational principles of American democracy will be enshrined into federal law. Our sorrow is impossible to describe. It is so deep as to be ineffable.

We cannot even rouse ourselves to anger; we are spent. If you're craving the tonic effect of vituperation, you will have to find it elsewhere, perhaps in today's remarks by our distinguished colleague G. Greenwald:
What were the consequences for the President for having broken the law so deliberately and transparently? Absolutely nothing. To the contrary, the Senate is about to enact a bill which has two simple purposes: (1) to render retroactively legal the President's illegal spying program by legalizing its crux: warrantless eavesdropping on Americans, and (2) to stifle forever the sole remaining avenue for finding out what the Government did and obtaining a judicial ruling as to its legality: namely, the lawsuits brought against the co-conspiring telecoms. In other words, the only steps taken by our political class upon exposure by the NYT of this profound lawbreaking is to endorse it all and then suppress any and all efforts to investigate it and subject it to the rule of law.

To be sure, achieving this took some time. When Bill Frist was running the Senate and Pat Roberts was in charge of the Intelligence Committee, Bush and Cheney couldn't get this done (the same FISA and amnesty bill that the Senate will pass today stalled in the 2006 Senate). They had to wait until the Senate belonged (nominally) to Harry Reid and, more importantly, Jay Rockefeller was installed as Committee Chairman, and then -- and only then -- were they able to push the Senate to bequeath to them and their lawbreaking allies full-scale protection from investigation and immunity from the consequences of their lawbreaking.

That's really the most extraordinary aspect of all of this, if one really thinks about it -- it isn't merely that the Democratic Senate failed to investigate or bring about accountability for the clearest and more brazen acts of lawbreaking in the Bush administration, although that is true. Far beyond that, once in power, they are eagerly and aggressively taking affirmative steps -- extraordinary steps -- to protect Bush officials. While still knowing virtually nothing about what they did, they are acting to legalize Bush's illegal spying programs and put an end to all pending investigations and efforts to uncover what happened.
Eighteen Democrats crossed the aisle to support immunity: Sens. Jay Rockefeller (D-WV), Evan Bayh (D-IA), Daniel Inouye (D-HI), Tim Johnson (D-SD), Herb Kohl (D-WI), Mary Landrieu (D-LA), Claire McCaskill (D-MO), Mark Pryor (D-AR), Blanche Lincoln (D-AR), Dianne Feinstein (D-CA), Ken Salazar (D-CO), Tom Carper (D-DE), Barbara Mikulski (D-MD), Jim Webb (D-VA), Ben Nelson (D-NE), Bill Nelson (D-FL), Kent Conrad (D-ND), and Debbie Stabenow (D-MI). If you see their worthless asses, tar them, feather them, run them out of town on a rail. Failing that, work ceaselessly and give all the money you can spare to defeat them the next time they face a real Democrat in a primary race.

O, Zembla. O, Zembla!

UPDATE: Because the House version of the FISA legislation contains no mention of retroactive immunity, the offending provision could still be killed when the differences between the two versions of the bill are resolved in conference. As the heroic Sen. Chris Dodd (D-CT) said, "It's up to the House." Mr. Greenwald, meanwhile, in collaboration with our eminent colleague Jane Hamsher of Firedoglake, is sponsoring an online petition urging members of the House to stand firm behind their own, vastly superior version of the bill. You may sign it by clicking here.

UPDATE II: TPM reports that House Judiciary Chairman John Conyers, who has never lacked for grit, today wrote in a letter to White House counsel Fred Fielding that:
1) from what he's seen of the documents relating to the administration's warrantless wiretapping program, there's no reason to grant the telecoms retroactive immunity (he prefers the term "amnesty"), and 2) Congress needs to know more before it can be expected to consider granting that amnesty.
Conyer's letter includes nine questions about warrantless wiretapping the Senate was afraid to ask:
1. Since September 11, 2001, has the Administration conducted any warrantless surveillance in the United States, other than through the warrantless electronic surveillance program the President acknowledged in late 2005 (known now as the Terrorist Surveillance Program), or as explicitly authorized by FISA, or any other warrantless surveillance techniques such as physical searches of home or offices or opening of mail? Are such activities continuing? Is the Administration currently conducting any foreign intelligence surveillance in the United States, other than that explicitly authorized by the Foreign Intelligence Surveillance Act (FISA)?

2. How many actionable leads have been referred to operational entities as a result of acquisitions of U.S. persons’ conversations or communications?

a) Please break down the response as follows: 1) between September 11, 2001, and October 25, 2001; 2) between October 25, 2001, and January 10, 2007; 3) between January 10, 2007, and August 5, 2007; and 4) since August 5, 2007.

b) Of the actionable leads referred to operational entities, what have been the results? Please differentiate between counter-terrorism, criminal investigations and prosecutions, counter-espionage, and in-theater combat operations. Please indicate with specificity whether any attacks have been averted.

3. How many conversations or communications (both incoming or outgoing) monitored under the programs have revealed a contact between a U.S. person and someone for whom there was probable cause to believe they were in or supporting al Qaeda? How many people in the U.S. have had email communications with someone considered to be in al Qaeda? How many of these conversations or communications have actually involved terrorist activity, as opposed to other topics of conversation? How many people have been charged with any wrongdoing as a result of such interceptions? How many terrorist activities have been disrupted as a result of such interceptions? How many people have been subjected to surveillance but not charged with any crime or otherwise detained?

4. How many persons whose conversations or communications were monitored under the programs have been subjected to any other surveillance techniques or searches, such as physical searches of home or offices, opening of mail, etc, whether subject to a warrant or not?

5. Have any U.S. persons whose conversations or communications were monitored under the programs been detained within the United States? Have any U.S. or foreign persons been interrogated or detained outside of the United States, whether by the United States or any other government, in significant part as a result of such monitoring?

6. Have journalists, lawyers, lawmakers (whether federal, state, or local), or aides had their conversations or communications monitored under the programs? If so, how many?

7. How many U.S. persons had conversations (voice or email content) or communications (call or email data) acquired through electronic surveillance programs? In how many of these acquisitions was the U.S. person the target of the acquisition? In how many of these acquisitions was the acquisition incidental? How many warrants for continued surveillance were sought after identification of someone as a U.S. person? How many such applications were denied? Please break down the response between warrantless and other electronic surveillance programs as to the following periods:

a) between September 11, 2001, and October 25, 2001;
b) between October 25, 2001, and January 10, 2007;
c) between January 10, 2007, and August 5, 2007; and
d) since August 5, 2007.

8. How many individuals have been targeted for surveillance under the Protect America Act that involved foreign intelligence generally, as opposed to terrorism or nuclear proliferation?

9. Please identify any telecommunication companies or internet service providers that refused to allow access to communication streams without Court sanction or questioned the terms of the requests or demands which were being made of them and, to the extent that discussions with such companies were conducted orally rather than through written dialogue, please authorize the relevant parties to discuss the content of those discussions with Committee staff and Members.
We assume we need not elaborate upon our boundless admiration for John Conyers.

UPDATE III: Chris Dodd, whom we mentioned above, has again expressed his determination to filibuster the RESTORE bill if it emerges from conference with telecom immunity intact. (Our distinguished colleagues at Crooks & Liars have posted video footage of his rousing floor speech from Monday night.) Today's developments reminded us of an interview he gave to a group of S.F. Chronicle readers shortly before he withdrew from the presidential race -- an interview we had fully intended to post at the time, before lassitude, malaise and procrastination got the better of us. But as they say, better late than never:
Benjamin Franklin, I guess, coined it well some two centuries ago when he said, "Those who would give up liberty for security deserve neither." And there has been that effect in terms of trying to achieve ["security"], beginning with Abu Ghraib, with the Military Commissions Act [limiting habeas corpus for "enemy combatants"]. And of course, more recently, with some of the decisions made - even Judge Mukasey making the rather remarkable statement in front of the Senate Judiciary Committee that presidents have the authority to violate federal statutes provided they're operating within the authority of keeping America safe - which is a remarkable statement for a 14-year veteran of the federal bench. And the more recent decision here by the Congress, along with the president, requesting that the telecommunications industry be granted retroactive immunity for having turned over the records of the America people without any court order. So, [I] talk about that, and the importance of making the case that the preservation of these values is, in fact, the source of our security.
Wouldn't it be nice to vote for a presidential candidate whose stump speech showed some simple common sense?

Now we're getting our dander up. That's more like it . . . .

UPDATE IV: If you have the time and the energy to sign a second online petition, may we recommend this one from our friends at Credo?

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