..out of the dark

At the moment, Barbara Boxer speaks on the merit of the Judiciary Committee's bill over the intelligence committee's version (the one Reid brought to a vote, instead of allowing the Judiciary Committee version, and then amendments. Obviously, no amendments would be offered on the intelligence- committee bill).

Essentially, the dispute is between requiring the warrants to have specific declared targets, or whether the targets should be loosely declared as "threats", and then allowed surveillance on. I.e., who should perform the determination - whether it's a third eye (the FISA court), or whether it's the White House. There's also the small insignificant Telecom immunity matter..).

(addendum: I suppose I should note that anything having to do with the senate should be explained in theatrical movements reminiscent of a pre- school play. Badly rehearsed, and a failed attempt at being serious. Consistently, over and over again, until it's comical and embarrassing. And in the end everyone laughs about it, except the ones who actually were proud of their performance.

So please note that if I appear angry, fractured and illogical as a rule today, it's because I've been listening for too long to the honourable senators and their harrowing speeches on how they cannot believe it's not butter.)

addendumer: Patrick Leahy, chairman of the Judiciary committee, will apparently offer his attempt to reconcile the two bills later on, through amendments (note again, this may or may not make sense, logically, or be consistent with anything). Presumably this will be after a successful cloture vote on the substance- matter on the FISA amendment currently being discussed. That will then, I would guess, be subject to a separate procedural battle, where it will be possible for the substance matter to be indefinitely postponed, as this would preempt the actual vote on the bill.

But before that, Dodd is speaking again, and will probably do so for a while, with some interruptions as the debate on what the final product of the bill should look like goes forward. But this will, as promised I believe, prevent an actual vote on the substance of the bill before 1. the mentioned amendments are included in the Intelligence committee bill, or 2. Dodd runs out of air.

addendumms: Feinstein is speaking at the moment, apparently arguing that the Judiciary Committee's bill should be included (she voted for the current bill on the role- call, though). Also curious is the way she's been arguing earlier on, since this - if I'm understanding it correctly, flatly contradicts anything she's been arguing lately on how the Bush- administration should be given everything the want, specially if it helps her Husband's contractor connections. She also voted emphatically for the Protect America Act, which effectively stripped any useful provision of the Foreign Intelligence Surveillance Act, while she condemned all the shrill voices that wanted to gamble the destruction of america on their specific wooden horses.

Truly, democracy is remarkable.

..Ah, I see. She's actually for the Telecom amnesty, isn't she. And believes this is a trade to get the spying efforts under FISA, "in this exclusive matter", in order to make FISA relevant. I.e., that it should be the Congress giving the greenlight to break the law, not the president.

addendumis: Feinstein submits the "exclusivity" portion regarding FISA (sole means to conduct foreign surveillance - what it actually says in the bill at the moment) as an amendment to the current bill, in return for sustaining her vote for the immunity provision. She appears to argue that the bill offers immunity for the companies (her Husband's connections, who had "no economical motives", but acted out of sheer patriotism, and at least in "good faith"), but will not remove the liability for the White House officials who ordered it. An absurd argument (specially considering this provision would remove the last opportunity to bring this matter to the courts), but that's what she says.

Funny - if you act in "good faith" against the law, then you're cool. Not suprising that she would hold that view due to her connections and the lack of respect she has for her constituency - which blatantly opposes the immunity provisions, as would anyone concerned about the rule of law - but it's still horrible.

So, so far: Big business 1, Chris Dodd and the rule of law 0.

..Hold on: she's suggesting the FISA court should decide whether the Telecoms were guilty - in secret. That's interesting. Interesting indeed. That's a huge leap for her. It's still obviously unacceptable as far as the constitutional matter of the Congress playing the judiciary is concerned - and would also effectively stop the ongoing court- cases. Not to mention the idea that secret courts should be the judge of not only the application of specific provisions in a law, but also make a judgement on what "acceptably" following provisions in FISA should reasonably be. rofl.

Truly entertaining. She's been having words with someone about this, I have no doubt. And are attempting to wrap the "exclusivity" of the FISA provisions over on deciding also the immunity matter. Inventive, but dishonest all the same.


Next up: Kennedy jr. (He doesn't appear too drunk today, and is suprisingly eloquent on the substance- matter of the bill at issue: I.e, FISA + amendment from Intelligence Committee.)

Criticisms: court review only occurs after the fact. Sunset provisions are made permanent, omitted. Omits independent review. Omits loophole for targeting americans domestically without oversight and review. Generally: does not trust the executive branch to oversee itself.

Kennedy mentions Goldsmith's objections to the "legal framework", http://www.tpmmuckraker.com/archives/004060.php , and are close to cracking up (more cough- medicine). But the point is a good one: as Goldsmith says, 'the Bush- administration dealt with the FISA as anything else they didn't like: they blew through it'.

Points out that the law already has provisions for deciding whether the Telecoms acted in good faith (which in fact will give the Telecoms effectively no punishment). Good point, Kennedy, and it burns down Feinstein's suggestion.

Oh, well done. Kennedy makes the more general point that this is about immunising the White House's private partners. Where does that stop, he asks (in shouts. The cough- medicine works).

Next: Kit Bond (R-Missouri) wants recognition.
Argues that this current bill has more protection than earlier suggestions to the Senate, and therefore is suprised to hear it still is unfaithful to the original FISA. Thinks any fair reading will say that this current bill goes further than FISA originally did. Manages to get in half a talking point about how it shouldn't seek warrants for foreigners and terrorists.

He's a tool. Regarding the amnesty provision - Argues: it's not amnesty because the Telecoms did nothing wrong. Thinks that not granting immunity would discourage telecoms from assisting the intelligence services in the future. He actually stands there and reads an article that argues, without evidence, against every point Kennedy just went through and systematically sustained. On all the crap that the intelligence committees will be bankrupt if they're prosecuted, that they acted in good faith, and therefore it should be the Congress' role to play judiciary and interrupt several pending court- cases. Unbelievable.

He also rehashes the argument that since the article 2 powers of the president allows him to order foreign intelligence, it should not have any requirement to tell what they're doing. Nevermind the problem that the Bush- administration suggests it has the right to prosecute people with that secret evidence they're aquiring, under the standards they deem sufficient.

He thinks there are evil people out there who rubs their hands now that the telecoms are in trouble, and therefore Congress should stick it to them terrists. And thanks for the opportunity to "clarify" the issue.

Cornyn (R-Texas): I have a brown stain on my nose, and thank the intelligence committee for not mentioning it.

Again, has no understanding of the underlying issue: whether individual warrants should be required, or whether broad generalised approvals of a "program" such as a fishing- expedition should be allowed. And seriously argues that because of modern communications, there's just not time to target single individuals, and it's necessary to allow blanket warrants to spy on everyone. And he seems to argue as if FISA requires the president to seek individual warrants on individual taliban- members in Afghanistan. Idiotic.

Now he's recounting an episode of "24". I'm not sure what the point is - it seems he's comparing the telecoms to police- officers taking someone's cars to pursue terrorists. And suggests that if the police- officers (telecoms) are not granted immunity, the public would be less inclined to give them the car. Which was a lawful authority given by Teh President.

Unbelievable understanding of the law among the nation's top officials, yah? "Therefore it makes no sense not to give these telecoms immunity".

He also argues that the sunsetted provisions on the August amendment should be made permanent today, sooner rather than later.

This is literally a smörgåsbord of right- wing talking points. Now he's arguing that the more intercepted communications, the more likely it is that a terrorist would be caught. Not that there would be more false leads and razzias at pizza- shops, obviously.

Also, filling out a warrant, or arguing for why evil people should be arrested or spied on, would hamper the intelligence community in their work. Therefore there should, I suppose, be no law.

Now he manages to suggest that FISA cost marines' lives in Iraq, because commanders spend hours filling out forms. (I swear I'm not making this up).

Again he says FISA requires authorisation for intercepting foreign communications. It does not. It never has. It requires a determination on whether it is a legitimate target. This is allowed even after the fact. But even that is unacceptable, obviously.

("Protect 'mercians" said 253 times.)

Next:
Wyden (D-Oregon): re. the Justice Department's legal opinions, and the intelligence committee's possession of these and the tele companies' papers on their legal case. And how the president and their helpers have been sabotaging people trying to acquire access to these papers.

Says the papers and the laws on the book made it obvious that the telecoms knew they were breaking the law. Wholly, no - partially - rejects the idea that the period close to 911 was so chaotic that the telecoms couldn't know they weren't breaking the law. (Notes that the current bill says the telecoms should be given immunity for five (six years, a bit later?) years after 911.. Where does that come from.).

And heere we go; he's playing a lawyer, and wants to determine himself when it was "reasonable" for telcoms to no longer believe they were following the law.

Tells the senate to go read the goddamned documents mentioned above before voting. Apparently he's going to vote against the bill because of the immunity provisions.

He also comments on how the majority of the senate has no legal right to see the documents about the immunity issue.

Presumably - given that they're at all logical here - that means the intelligence community bill addresses a specific concern regarding "foreign to foreign" communications. The judiciary committee addresses the more general point about the FISA being the exclusive means to conduct what's called foreign intelligence. Kit Bond would be arguing for the former. There's no problem reconciling the two, really, but it appears that it would be a mistake to treat the intelligence committee's amendment as overriding the general FISA concerns. Which presumably it does, or is designed to do.

Once again the reason for voting against the current bill: that the bill is dependent on location, not on person. I.e., once again the issue that there needs to be specific targets, instead of general targets and locations based on suspicion, with information then subject to "minimisation procedures" (like it is currently, obviously).

..allright. He's arguing that americans travelling abroad should not be spied on. I'm extrapolating a bit.


-McConnell (R-Kentucky) thinks this was a good opportunity to talk about Burma.


four hours later:
Warner (R-Virginia) suggests that the law gives no opportunity for the poor telecommunications companies to defend themselves. Apparently not knowing that the cases have already been allowed to go forwards in a court, under the law, with perfectly acceptable decisions being angled for that does not in any way depend on secret information. What it does, of course, is remove the Bush- administration from themselves deciding uncontested with their own DOJ what exactly is classified. Which, obviously, is the problem they have. And so, once again, a republican - a serious republican politician - wraps himself in patriotism and the law, and then argues blatantly for removing the law as far as the government's conduct and their private partners is concerned, while also suggesting the Congress should interfere with the course of justice if it feels that is appropriate.

Meanwhile, Dodd takes over again. He tells the tale about the earlier programs that spawned FISA, SHAMROCK, and the extensive surveillance programs that assisted grave breaches of civil liberties then.


----

I think it's worth noting again, at this time, that the fundamental flaw in Dodd's position at this point is that he assumes FISA was followed as it was intended until the Bush- administration came along. This is not the case. What has happened, obviously, is that the executive has again and again granted itself the right to spy on everyone without warrants (as long as they deem their targets to be legitimate), but in return has been precluded from bringing charges in a court, if there was no warrant.

And while it never was the case that a president so blatantly said they were above the law, the fact of the matter is that the only reason this comes to our attention now, is that the breaches are so blatant. Some of us noted, when Clinton drove the office, to derision from our american friends, that what he was doing was putting himself in the position of an emperor - and that they only had the word of mr. Slick to trust that he would not sooner or later change his opinions, or allow his underlings to go further than the official story. The same arguments were offered then - that this was the US, and that the NSA were professional, and that the intelligence services were doing their best, were not crooks, and had no bad intentions.

Well, at this point, it's clear that the executive will go further. It has interpreted to itself not only the ability to dictate what is a legitimate target for it's surveillance activities - but also to transfer that authority to interfere in the course of justice. In effect making anything the president orders legal, no matter how it contradicts the law.

This has obviously been struck down by the courts, whenever it has been challenged. And that is the reason this is so important. Because if the president is allowed not only to assert himself audacious new rights, but also sustain the internal views uncontested in an operative context, then there is no law.

Note also that the law already has a provision for reducing penalties for any telecoms that acted reasonably in good faith. There are even precedent from this, from yonder days of Watergate, when the same thing essentially happened - except that there was opposition to the argument: it's necessary to allow the president infinite leeway, in order to be protected from danger.

The obvious fact is, of course, that this argument is false. As has been seen with the way the US secretly detained various individuals, tortured them, and made them serve up a stream of false information. It also emerged that these individuals were innocent.

This is what this is about - whether the executive branch should operate without checks, and be trusted to never capture and torture, and prosecute outside the law, anyone who doesn't have names most people can't pronounce, or anyone who doesn't have a slight sunburn. Which, if avoided obviously is completely fine, according to the wise&responsible Warner and the rest of the GOP enablers.

----


Dodd now retraces ancient law on why court orders exist. I.e., so that government is not allowed to spy or conduct surveillance without reason, as well as operate outside the law. Naturally, this is a widely contested principle in the United States Senate.

Dodd starts to connect loose threads: 'why an attorney general who thinks the president is above the law? Why need immunity from prosecution? Why the destruction of tapes? Why Abu Ghraib? Why no accountability for Blackwater? Etc.

And declares that it stops here. No more small things eroding people's rights. No more enabling the administration. Not this time.

Pause.

Orrin Hatch (R-Utah) talks about us.

And talks about irrational fear of government, and conspiracies about government conduct on blogs. You know, like the Washington Post, or the NY times. After all, he argues, the US did not kill 3000 people on the sept. 11. So therefore, no concerns about the government's conduct is legitimate.

Awesome argument, Hatch. He also will not pass laws that "could" leave the nation open for attack.

Now he argues this bill unduly expands the power and reach of the judiciary branch.

Now he suggests we are afraid of the NSA wiretapping our mobile phones, and have no perception of the danger terrorists - who are fundamentally different than other citizens, obviously - and are simply staring into our navels, hung up on these "civil" "liberties" "crap". We are, obviously, never happy.

Again, he argues, like the rest of the idiots, something that is based on the premise that the minimisation procedures at the NSA is the only place where FISA and the fourth amendment comes into play. I.e., that the NSA must have unfettered access to surveillance, and then - through their professionalism, will protect you from fourth amendment infringement.

It's a fantastic argument, and I honestly cannot believe an argument like that has survived for the last several years. It's unconscionable.

Now he apparently takes the president's quotes to prove the TSP was legal and within the law. Because that's what the president says. That the program is within the law (as his DOJ, in secret legal opinions, says, at least).

He is now the fourth Senator I've heard who reads the op-ed about how not granting the Bush- administration anything it wants, and putting the law aside - "may" harm national security and "discourage" potential sources from providing information. Let's therefore set aside the "chill" effect of having every phone tapped, and every communication under surveillance. And let's forget the effect it would have to grant the Bush- administration and it's private contractors ability to operate without fear of legal repercussion.


Nelson (D-Florida), now stammers out how it's important to be "bipartisan", and pass the bill unchanged. Hatch adds that it would be the greatest bipartisan effort in his country, if the bill passed unchanged. He speaks like a babbling babe. I'm sorry, I can't make sense of anything he says. He seems to argue that the FISA amendment from August improves upon FISA, and gives it weight in "murky" legal areas that allegedly has no law covering it.

How a grown man can stand and argue this is beyond me. How this man managed to be elected is beyond me. How he can tie his shoes is, quite frankly, a mystery to me as well.

Ah, yes. He's still worried about giving blanket retroactive immunity. Astounding. Although he doesn't think it's really a problem to grant the telecoms a free pass for just following the president's orders, of course. That's "understandable". He talks some more. On an argument he did not write, and does not oiynduhr- stai-aind.


He opens again the idea of a Fisa- court decision on the immunity question. Same as sen. Feinstein's suggestion, which he endorses.


Another pause.

It's now about 7pm in DC. The program ahead seems to be some more unscheduled speeches.

Brown (D-Ohio) (Hatch's counterpart) speaks on the immunity issue. In other words, he connects the immunity issue, rightfully, to whether or not a company should be able to disregard the law if the executive branch comes waving a piece of paper. And simply allow the executive branch to interpret the law for them. Which is, of course, what we're talking about. Not, as Hatch for example insists, that this is about allowing the executive to exercise their god- given right to dictate the law.

Again, something that's a widely contested issue in the US senate.


....holy crap. I managed to get through more than half of the eight hours. Dear gods.. I hope it's not going to cause permanent damage.