Archive for the ‘congress’ Category

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The tempering of experience by hope

July 6, 2008

The FISA Amendments Act of 2008 (FISAAA, HR 6304), due to be voted on in the Senate on July 8, is a horror of a bill which essentially rips up the fourth amendment, leaving only sufficient shreds for Congress to clutch to its collective groin as a fig leaf. A quick summary of some of its bad features may be found on this ACLU webpage.

(As long as I’m throwing links around, here’s a .pdf of the original FISA as it was written in 1978 . It has been amended several times since.) [UPDATE: Cornell University has a copy of FISA as of January 2006, very nicely cross-linked with HTML.]

In Obama’s brief announcement that he would support the bill, he referred twice to a provision in the Act calling for an Inspectors General investigation. In his disappointingly disingenuous response to his anti-FISAAA supporters, he mentioned it yet again. That suggests this IG investigation is worth a closer look. The provision is set forth in Title III of the bill, pp. 95 to 101 of the PDF.

(It is not to be confused with the mandate, earlier in the bill at 702(l)(2), for ongoing oversight of each “element of the intelligence community” by its own individual IG, alluded to on the ACLU webpage.)

The IG investigation:
(1) Covers “The President’s Surveillance Program” – which is very broadly defined to cover all intelligence activity authorized by Bush between 9/11 and January 17, 2007. It would have been nice if it also covered the period between inauguration and 9/11, during which Qwest was asked to perform illegal wiretaps. But you can’t have everything.
(2) Is to be conducted jointly by all the affected IGs. And they are required to assist each other, not allow the investigation to be compartmentalized. To avoid having the effort led by an IG who happens to be a Bush stooge (most of them have not been), the Act asks the IGs themselves to pick their leader.
(3) Is authorized to expand the specific topics of interest to “any other matters identified by any such IG that would enable that IG to complete a review”.
(4) Authorizes any expansion of staff the IGs feel is needed to conduct the review.
(5) Requires the IG and their staff to be expeditiously granted security clearances. Heel dragging on clearances has been used by Bush to quash previous Congressionally mandated investigations.
(6) The report is to be submitted to Congress “not later than 1 year after the date of enactment of this Act”, and must be unclassified, though it may have classified appendices. So no matter how much Bush stonewalls, there’s still going to be six months of Barack administration in which to do real investigation. And the product won’t be something to be whispered about only by the Gang of Eight behind soundproofed doors.

I see just one loophole in all this, and it’s that “not later than”. Bush could try to stonewall, and also try to force the IGs to submit their report before his term ends, so it contains only the information he felt like letting them see. Frankly, though, it’s not clear to me that he has an ounce of leverage to force a bad report out.

It sets a terrible precedent for the Telecoms to be granted immunity. It is an announcement to all players in the future: When the President tells you to do something you know is illegal, do it anyway, and you’ll get off scot free. But the central sticking point with the immunity provision has always been that the civil suit had been the last available avenue for prying open the secrets of Who Bush Really Spied On. Any investigation launched by Barack after the election would be drowned out in howls from the right wing and its captive media of “partisan witch hunt”. This IG mechanism provides another avenue of discovery, which happily affords no opening for those ritual howls. The right wing to a man will have voted for the investigation, and Bush (albeit with Addington helping him to cross his fingers behind his back with yet another signing statement) will have signed off on it.

The report may, of course, be born into the world with its infant wails unheard by the media. But Obama will at that point have the bully pulpit in his hands. It is the one method that could manage to get a genuine investigation under way without awakening the High Broderist wrath of the media, which is always as offended at investigations of Republicans as it is eager for investigations of Democrats. The facts, once out, might generate momentum of their own.

Of course, all those other terrible elements of the bill remain: the “exigency” rules which swallow all the other rules. The permission to listen to every single call in or out of the country. The fact that once the FISA court gives its blessing to a general method of wiretapping, it is not permitted to know or enquire what actual specific taps are laid, who is listened to or why. And so on.

The fact is, Bush will continue doing all those things, without notifying the FISA court, regardless of what the law may be. So will the passage of those nasties have any practical effect? Only if you believe either of the following propositions:

(1) Obama is planning to use this vote, not just as cover for the election, but so he can abuse the fourth amendment once in office. That strikes me as unlikely, even if (as I also think unlikely) the idea tempted him. He knows the press that gave George W an unending free ride will go back to Clinton rules, casting a hawk-like eye over every potential misstep. Or:
(2) If McCain entered the White House with only the old FISA in place, he would ignore the advice of all the neocons with whom he has surrounded himself, reverse Bush’s power grabs, and meekly follow the law. That’s also highly unlikely. It is not the law before whom he has been meek the last eight years; it is the demands and the conventional wisdom of the radical right.

So it could be argued that, from Obama’s point of view, that loathsome as it is <em>qua</em> law, the practical effect of FISAAA’s passage or defeat on who is actually spied upon will, in our post-rule-of-law era, be exactly nil.

From the point of view of a citizen who cannot read Obama’s mind, unfortunately, that argument utterly fails. It is an argument that we should trust Obama with tyrannical powers, when in fact as the Founders wrote, we should not trust even “the best of men” with them.

On July 8, it will become apparent that, will we or nill we, we shall perforce have to trust one or the other, Barack or Saint John, to love the Constitution more than power. Saint John has already declared his unshakable disgust even for habeas corpus. Though the choice may be one that would have made Adams and Jefferson weep, thanks to Saint John’s public capitulations on habeas, on torture and rendition, on use of coerced testimony, on choice of Supreme Court justices, it will also be a no-brainer.

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Handicapping the Tunguska event

June 29, 2008

This isn’t the “all manner of thing will be well” post I adumbrated. It’s a stray FISA thought brought on by a scientific anniversary.

Every so often, Nature publishes a themed issue. For 26 June, the theme is astronomical collisions.
The lead editorial talks about the catalog of near-earth asteroids that’s been developed since the 1980s. When the catalog was originally proposed, the idea met with some active resistance from astronomers. It wouldn’t really give us any new science, just a lot of boring detail, and the acquisition would have an opportunity cost on more instructive research.

But now we have all the asteroids capable of producing a mass extinction event under our sights; it’s a good thing that we do, and it’s been good PR for astronomy. There’s a tendency to consider the job done. However, there’s a huge population of lesser asteroids that could still be pretty devastating, from the point of view of the layman, if not from a planetary perspective. The editorial recommends beginning the larger survey, but in an incremental way rather than as Big Science.

Imagine an unspotted asteroid laying waste to a significant chunk of land, as happened in the Tunguska region of Siberia 100 years ago this week; and imagine if that area, unlike Tunguska and a surprising amount of the globe today, were populated. The politician or scientific adviser who had dismissed such a disaster as being too improbable to bother with would be in dire straits. Politicians know in their bones that unlikely events matter.

Last summer, Director of National Intelligence McConnell took congressional Democrats aside and told them a terrorist hit on DC was likely over the August recess. It was a lie. The Dems swallowed it hook, line and sinker. And so the “Protect America Act”, authorizing massive warrantless wiretapping of American citizens, was passed.

Over at the Unclaimed Territory blog, Glenn Greenwald, peace be upon him, has been pointing out that fear of “looking weak on terror” by letting the PAA lapse is groundless. Several Republicans have run against Dems in Republican districts lately, using precisely that attack. And the Democrats who have said, “No, surveillance has to be overseen by courts and Congress, it can’t be left to one man’s say-so” have won handily. That fear tactic has been defanged. And the polls show it, too.

That’s right as far as it goes, and it’s true that many Vichy Democrats are paralyzed by exactly that outmoded bogeyman. But I would suggest that there’s another political calculus, which may be behind Obama’s decision to defuse the FISA issue, even if he has to temporarily deep six the Constitution to do it. A calculus based not on fear of being called soft on terrorism for opposing the FISA extension, but on what would happen politically in the case of a Tunguska event.

Not to put too fine a point on it, if Obama were to lead an assault on HR 6304, and succeed, and if before the election there were another major Al Qaeda attack in the US, Bush would flood the media with a false but unfalsifiable claim: that the warrant that would have prevented the attack was tangled in the (nonexistent) “red tape” of the old FISA laws. And with that, any chance of keeping the White House out of the hands of McCain and his neocon handlers for the next four years would be blasted to green glass.

That probably won’t happen. But it isn’t all that unlikely. It wouldn’t take another September 11. Close enough to Election Day, a Madrid level attack would suffice. The chances of such an attack in any given year are surely over 5%. Considering that Al Qaeda wants to keep the neocons in power, once they have an operational plan, they will try to time the attack to coincide with an election. So it’s more likely this year than at any time since 2004. Given Al Qaeda’s resurgence in Waziristan, and the rate at which opium wealth has been pouring into their coffers, it is really more likely than at any time since 2001. And AQ may feel they need to move quickly, because although their wealth and military strength have been growing, their brand is hurting of late. Recent surveys, in Iraq and elsewhere, indicate they are getting a rep for blowing up fellow Muslims rather than infidels, and are being taken less seriously as a result. They need a return to America, or at least to Europe, to bolster recruiting.

Obama is free to forthrightly champion the rule of law – by loudly opposing telecom amnesty and, more substantively, by cheering the restoration of habeas, as he did earlier this month. No October attack could be laid to the telecoms having to spend a little time in court, nor to the fact that a few Guantanamo inmates are finally allowed to spend a little time in one. He can meet any political risk in those stances head on, by educating the public. But if he were to squash the FISA amendments, and Al Qaeda chose October to make its next move, the nation would no more be in the midst of a teachable moment than it was through the awful panicked year of 2002.

I don’t know if that’s his reasoning. (For that matter, I don’t know whether the congressional leadership would give up their love affair with amnesty on his say-so anyhow.) But if it is, he might well be right that the time to fully crank up the country’s long overdue basic instruction in the Bill of Rights will only come once he stands safely behind the Bully Lectern.

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The triumph of experience over hope

June 24, 2008

Since Harry Reid and Nancy Pelosi conspired last summer to keelhaul the fourth amendment with the “Protect America Act”, I have suspended all my contributions to the DSCC and DCCC. With every solicitation from those bodies, I’ve mailed back CHOICE WORDS IN CAPS explaining that I am an American first, and a Democrat second, and if they ever want to see money from me again, they will have to stop suffocating the Bill of Rights in the Capitol basement. I got fully on board with the dailyKos mantra of “more and better Democrats” – except that from now on I am going to let someone else worry about the “more” part.

I spent last week in an ecstasy of cold fury, watching my party’s so-called “leaders”, bend heaven and earth not only to grant George W. Bush and John McSame carte blanche to listen in on every last one of us, but also to establish a firm precedent that anyone who breaks the law, provided he does so at the President’s behest, may expect a Get Out of Jail Free Card.

Then Barack Obama announced that he too would vote for what is in effect the Let George W. Bush Wiretap Whoever The Hell He Wants bill. On the bright side, he promised to cast an ineffectual vote in favor of an amendment (which he knows will fail) to at least strip retroactive immunity from the bill. And once that charade is played out, he will give the whole wretched mess his blessing.

So much for hope. Barack in a stroke managed to transform my anger into something very like despair.

In the following days, I’ve read through most of HR 6304. I won’t go into details in this post, but it’s as bad as you thought, and it’s worse than that. And I have wrestled with the awful cognitive dissonance of wanting to continue to hope for a transformative presidency from Barack Obama, and knowing what a profound betrayal this vote is going to be of even his senatorial oath of office. I keep being tempted to make excuses for him, to fit this breathtaking capitulation into the narrative I had been forming of his character.

Today, a seemingly unrelated story broke that strengthens the temptation. It was this one, the publication of the first report (pdf) from the Department of Justice’s Inspector General concerning the blatant and illegal politicization of the Department by the Bush administration (in the person of Monica Goodling), including the destruction of personnel records in order to cover up that corruption.

Inspectors General are appointed by the President. Yet, more often than not, IGs under this administration who have been tasked by Congress with conducting oversight into various executive departments have come back with honest, and damning, results. Being criminal and ethics-free themselves, the Bush/Cheney cabal have over and again (Ashcroft and Comey are other examples that spring immediately to mind) made the error of assuming that lifelong, politically committed Republicans, once appointed, will automatically also be criminal and ethics-free. Happily, except for judges properly vetted by the Federalist Society, that assumption has often failed them.

One very puzzling thing about the new FISA amendments, found in Title III, Section 301 of the Act, is the provision for an investigation of the Administration’s warrantless wiretap activities by a group of Inspectors General. Puzzling because I really can’t suss out why Bush was willing to agree to it. In his short announcement of his support for the bill, Obama mentioned this provision twice. Perhaps it poses a real danger of accountability, and the Cabal remain blind to the danger because of that constitutional failure to internalize the possibility that not all Republicans are as corrupt as they and their congressional cronies.

My next post (if I get around to posting) will look more closely at III (301), and present the devil’s advocate case that Barack knows what he’s doing in supporting the bill formerly known as Hoyer’s Folly, and that all manner of things will be well.

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News we will use

September 1, 2007

As expected, Larry Craig tendered his resignation from the Senate this morning (overshadowing the much more significant news of John Warner’s retirement – more significant because it heralds the final blue-ination of Virginia, whereas Idaho will remain beet red for the foreseeable future, from both Republicanism and embarrasment.)

On reflection, I think it’s fitting that almost as many inches of ink and megapixels of phosphors have been spilled over this story as if Larry had been a missing blonde woman. After all, the war in Iraq has little day to day impact on most Americans, and the fact that both political parties have now begged Big Brother to watch us as closely as he likes has even less, since by design and by the catch-22 lack of judicial “standing”, all that surveillance is as invisible and unknowable as the count of jitterbugging angels on Monica Goodling’s head.

In contrast, Craig’s story has already immeasurably altered people’s daily lives. All over the land, for weeks to come, whenever he enters a public stall, every prototypical American male will nervously pull his feet into a narrower stance, and pluck iPod buds from his ears for fear that some plucky groove tempt him to begin tapping his feet.

Salutations, mainstream media. For once you’ve got your priorities, um, straight.

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Transcript of Carol Lam’s written response

May 3, 2007

Josh Marshall on TPM yesterday linked to the Senate Judiciary Committee’s document giving Carol Lam’s written answers to followup questions on her testimony.

Lam, you’ll recall, was the US Attorney for the southern (San Diego) district of California, who was among the eight fired on Gonzales’s Day of Infamy. She had successfully prosecuted the Duke Cunningham case, and was following the threads of corruption. As we learned from the first DoJ document dump, when the threads reached Kyle “Dusty” Foggo, the campaign to oust her accelerated.

Because the Senate’s document was put on the Web as a series of page images in pdf, I spent a couple of hours transcribing her testimony into text format, which can be searched and copied and pasted.

The whole thing is chock full of refutations of Administration talking points. TPM has already highlighted the most surprising and potent answer, to the Democrats’ question 20. It reads in part:

After a follow-up call with Mike Battle a few days later, I requested additional time to ensure an orderly transition in the office, especially regaridng pending investigations and several significant cases that were set to begin trial in the next few months.
On January 5, 2007, I received a call from Michael Elston informing me that my request for more time based on case-related considerations was “not being received positively,” and that I should “stop thinking in terms of the cases in the office.” He insisted that I had to depart in a matter of weeks, not months, and that these instructions were “coming from the very highest levels of the government.”

This tells us, first, that Lam’s departure was being pushed, and pushed hard, directly from the White House – by Rove if not by the President. It tells us, second, that the firing was not driven by concerns about misplaced policy priorities. Had it been, there could have been no objection to having Lam stick around a few months to provide continuity on existing cases. It was not driven by concerns about management style, because she was not proposing to remain as a manager.

It also explodes one of the prominent excuses bandied about by the Justice Department: that the whole firing exercise was simply an attempt to give some promising eventual candidates for judgeships a bit of juice on their resumes. Elston made it clear that, whatever the merits of the incoming USA, the “very highest levels of the government” wanted above all else to get Carol Lam out of operation.

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Gonzales downfall predicted in the Bible

April 25, 2007

Unspared Rod
The blogosphere in its terseness has taken lately to referring to Attorney General Alberto Gonzales as AGAG. It had been tickling something in the back of my brain, something which finally surfaced this afternoon.

No doubt the reason it took so long is the exceeding cuddliness of the man. Yes, he stood at Dubya’s side, ruthlessly railroading God knows how many Texas innocents into the death chamber; yes, he strove manfully to help maximize the number of shattered souls driven to madness in Cheney’s secret oubliettes around the world; and yes, he has dedicated himself more single-mindedly than any AG in history to replacing the rule of law throughout the precincts of Justice with the rule of lackies. But, hey. Not for nothing has he been the runner-up for three years straight in the national Pillsbury Doughboy Lookalike Contest.

But his doom has been prefigured in holy writ. There, in I Samuel 15, we learn of another government official (a king of the Amalekites, in this instance) whose merciless and lawless ways deeply offended God. And his name was AGAG. The chief executive of the country (King Saul) wanted to shield this AGAG because of his royal blood – basically on grounds of executive privilege. Saul’s instinct cut no ice with God, who directed His prophet to deal with the matter:

I Samuel 15:32 Then said Samuel, bring ye hither to me Agag the king of the Amalekites. And Agag came unto him delicately. And Agag said, Surely the bitterness of death is past.
15:33 And Samuel said, As thy sword hath made women childless, so shall thy mother be childless among women. And Samuel hewed Agag in pieces before the Lord.

Last week Gonzales came delicately (both mincingly and carefully) unto the Judiciary Committee. And God had no need to raise a prophet, because Alberto proceeded to hew himself to pieces before the committee more effectively than anyone else could have.

Nothing now remains to be done except to gather up the hacked limbs and give them a decent burial. As fine as they’ve been diced up, though, collecting and identifying them all will probably require some months of intensive labor.

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Serving at the pleasure

April 19, 2007

The papers have been telling us that our esteemed Attorney General, Alberto “Abu” Gonzales, has done nothing for two weeks except prep intensively for today’s Senate hearing. Nevertheless, within minutes, he was swimming in flop sweat. It was as if he had been introduced to the game of chess three weeks ago, and spent the last two of them being coached, interminably and exasperatedly, in the basics of the Russian Defense, the French Defense, and the Ruy Lopez, a little of which he finally retained. And sure enough, four moves into the match, the poor lunk’s out of his book.

He was quick to assure the Senators that he had nothing, absolutely nothing, to do with deciding which US Attorneys would be fired; knew nothing about the decisions except that the reasons, whatever they may have been, were entirely proper. And of course, neither did Karl Rove help decide, and certainly not the President. Or at least, if they did, he wanted the Senators to rest entirely assured that the fact has by now slipped his memory. (As a precautionary measure, Gonzales, like Scooter Libby, recently had his limbic system replaced with cuttings from Spongebob Squarepants. Seahorses, clownfish, and colorful nudibranches flutter gaily through its pores.)

No individual made these decisions, his testimony reveals. They were made, Abu G. is forced to assume, although of course not having been even slightly involved he can’t be absolutely certain he remembers, by “the consensus” of “senior officials” in the DoJ.

(Did any Senator have the presence of mind to ask for the names of those senior officials? If so, the certainty that Abu G. would answer “I don’t recall” apparently drained his or her will to pose the question.)

Shorter Alberto Gonzales:

“Nothing improper took place here. Senators, you have to understand: By law, the US Attorneys serve at the pleasure of a faceless, indeterminate group of Justice Department ‘senior officials’, who may fire them for any reason. I would tell you their names, but the same law authorizes them to train forgetfulness rays on the Attorney General, in order to protect their identities.

Anyway, no one among even them knows why these USAs were fired; that would be a holographic piece of knowledge held only by their joint consensus. Holographs can be fuzzy. Sort of like my testimony today, and, as you may recall, every other day I’ve sat before this committee.

If I were you, Senators, and wanted to get to the bottom oI all this, I would subpoena their consensus to come testify. Good luck serving the papers. “