Posts Tagged ‘HR 6304’

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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.