FISA bill signing: post mortem

By Carol Gee

7/18/08 -- Because I have been travelling, my posting here at The Reaction has been lacking. Today I am posting something I did on the 12th at South by Southwest that never made it over here. I do this because I am "still smarting" about this disaster, and wanted to share my "take" on it as I wrote it at the time -- for whatever it's worth. The post follows:

How did the courage of Congressional Democrats die, when it comes to protecting our citizens' civil liberties? What happened to their oaths of office in the face of OCP's (our current president's) massive assault on Fourth Amendment privacy protection. First, please look at WaPo transcript of what OCP said as he signed the new FISA bill: Bush remarks on signing of FISA bill. Here is an excellent article headlined, "Bush Signs Spy Bill, ACLU Sues" by Ryan Singel at Wired: Threat Level. To quote:

The American Civil Liberties Union filed suit Thursday over a controversial wiretapping law, challenging the constitutionality of the expanded spy powers Congress granted to the president on Wednesday.

The federal lawsuit was filed with the court just hours after Bush signed the bill into law.

Civil liberties advocates have not laid down and died, however. Read this excellent piece regarding what one of the key longtime advocate organizations thinks about the current moribund situation, etc.: "Interview with ACLU re: constitutional challenge to new FISA law," by Glenn Greenwald at Salon.com. To quote:

. . . the extraordinary fact that the surveillance program implemented by Congress yesterday does not merely authorize most of the President's so-called "Terrorist Surveillance Program" that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the "target" of the surveillance have any connection whatsoever to Terrorism, nor is there any requirement that the Government believe the "target" is an agent of a foreign power or terrorist organization, or even guilty of any wrongdoing at all.

. . . Sen. Chris Dodd -- whose stalwart, relentless efforts to stop this law were nothing short of heroic, as those efforts often provoked substantial hostility among many of his colleagues -- sent around the following email today to his mailing list highlighting the positive aspects of the battle:

Yesterday was a sad day for the United States Senate.

It is my hope that the courts will undo the damage done to the Constitution.

But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.

We came together – all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.

I'm sorry we weren't successful.

I just hope I'm lucky enough to have you by my side in the next fight, whatever that may be.

Thanks for all you've done.

Chris Dodd

. . . the only people outside the Executive Branch who have any real knowledge at all of how these illegal spying powers were exercised are a small number of Senators on the Intelligence Committee who have been briefed by Bush officials, but they are barred by law from saying what they know. Nonetheless, here is what one of those members -- Sen. Russ Feingold -- said during his remarks on the Senate floor regarding the new FISA bill, as highlighted by Howie Klein. In a minimally rational world, these revelations from Sen. Feingold would be major, major news:

I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure.

Important details about the ACLU lawsuits: Blogger emptywheel at Firedoglake discussed a number of and ideas about what might happen next to revive the question. To quote:

. . . one of the article's most intriguing elements: we have worked single mindedly under the assumption that, while many parts of the FAA might could be reversed or minimized through subsequent legislation with a new Congress, the retroactive immunity portion was irrevocable and final. That may, and I emphasize this is a tentative and weak may, not necessarily be the case.

If Congress could not do its job of checking an out of control executive, then there is only one branch left to do it, the judicial. I have not permanently given up hope, but it will be a long tough fight to revive it. The USA is a very sick patient now. We still need to work to save it.

(Cross-posted at South by Southwest.)