On FISA

Given that the President is no longer required to follow the law and constitution it follows that corporations ought to be considered above the law as well.

"Of course, if the telecoms engaged in actions that would be considered illegal even after the FISA compromise is passed, they should be prosecuted."

Joe, you tool, how are they going to be prosecuted since they can never be investigated, because they now have frigging retroactive immunity!

Now that the Bush Admin can break the law, and retroactively give themselves a get out jail free card, prosecution will be impossible.

They broke the law in your name, Joe, don't you care?

Joe, Thanks for a thoughtful though of course, incorrect analysis.

The telecoms didn't cooperate while everyone was freaking out after 9/11. They cooperated for years after. The class action lawsuits span between 2001-2007. This is not a mistake made in the weeks after.

Why don't I, as a former Verizon customer during those years have the right to ask a judge or jury to decide whether or not my rights were violated? Why are my congressional reps denying me a day in court?

Why shouldn't these lawsuits be used to shed light on what the Bush administration did and who in private industry aided and abetted?

Finally, how is the current FISA law insufficient. I don't want my data mined as part of some huge fishing expedition. If the government wants to know who I called and when and who called me, the government should get permission from a judge. Ideally I should get to object in front of that same judge. No unreasonable search and seizure. Why is that hard to understand?

Why were the updates to FISA in section 206 of the Patriot Act insufficient for modern technology?

Also, it's inaccurate to say that people are seizing on the retroactive immunity as an excuse not to pass the larger bill. Please be assured that people genuinely care. It's also inaccurate to say that the activity people are concerned with happened only in the immediate aftermath of 9/11.

Prosecuting them now, for past actions that will become legal when this bill is passed

WE DON'T KNOW WHAT THEY DID. The lawsuits are THE ONLY WAY TO FIND OUT. And now, as long as they can say, "we broke the law, but only because the government asked us to," it all disappears. Your "requires a federal court to approve, or disapprove, the requests" formulation is misleading. Of course the government asked them, that's why whatever this spying was happened.

Why are you so incurious about what the government was doing? Sometimes it almost seems like you're more concerned with appearing Sober and Centrist than reporting facts.

Yes, the telecoms acted in a questionable manner--and yes, there were companies like Qwest that refused to comply

Well at least if we're going to vehemently disagree, I finally have a coherent paragraph or two to disagree with.

Your bullet 4 is the one that is entirely wrong. The telecom immuninty is not a subsidiary issue. It is the sole issue.

Everyone agrees that the law needed to be updated in order to cover gaps in the existing law. However the correct procedure for updating a law is to bring a draft of the law you want to Congress and ask them to vote on it.

The last time I checked ordering companies to violate the law extensively and continuously for a period of years, and then only pushing for changes in statute when caught out by the NYT is doing things a$$-backward.

It is precisely when "everybody is freaking out" that constitutional protections become the most important because that is precisely when the temptations to sweep them under the rug is greatest.

I won't even begin to address why your "Roe vs Wade anaology" is flawed. We've already been down that road.

In short Joe, your efforts to be reasonable are putting you squarely on the wrong side of an important issue. And your wading into some sketchy truth-value waters in order to get there.

My problem with this bill: they unveiled it and gave House members a grand total of 24 hours to read this thing, then vote on it.

That's slightly absurd and smacks of trying to ram something through. I'm never a fan of that as it always has disasterous consequences, whether it is a small bill or something major like this.

Trying to stifle debate, as Pelosi and the Democratic House leadership are doing, is never a good idea. While there would doubtless be some political grandstanding in the long run it would be a healthy debate. And a better bill would ultimately emerge for this. As it stands now there is probably some glaring loophole in this thing no one's going to discover until it's too late, the public will be up in arms again, and we'll just have to re-do this thing again in 6 months. For some people, they'll chance that in the hope it'll be after the election. I won't as the people who have done this, historically, have been proven to be incorrect and inevitably whatever is wrong with this bill that we're missing will probably manage to surface 2 or 3 weeks before the election. That's how it always works.

As for the actual intellectual disagreements I have with this bill, as Klein was clearly reasonable in understanding other people's dissent from FISA no reason to go into that.

This decision essentially says to private citizens, "we are removing your legal rights in exchange for you having less freedom and liberty." I'm sure they will question the patriotism of anyone who doesn't want to give up their rights under the law.

Thanks to all above who have dissected Joe's arguments so competently and respectfully.

But, in the end, what Glenn Greenwald said is really all that should need to be said on this: "So all the Attorney General has to do is recite those magic words -- the President requested this eavesdropping and did it in order to save us from the Terrorists -- and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was. . . . That's the "compromise" Steny Hoyer negotiated and which he is now -- according to very credible reports -- pressuring every member of the Democratic caucus to support. It's full-scale, unconditional amnesty with no inquiry into whether anyone broke the law. In the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected."
http://www.salon.com/opinion/greenwald/2008/06/19/telecom/index.html

Either we are a nation of laws, or we are not. The President and Congress take an oath to protect the Constitution. There are no caveats to suspend the Constitution if we are afraid.

This shouldn't be that hard to understand.

Of course it does. The whole point of it is to basically allow the President to order private corporations to do whatever he wants them to do with no legal consequences whatsoever. Without the right to take this to court not only will we never find out the full truth of what happened, but we're laying a dangerous precedent for future executive actions. Under any president.

The leadership of this Congress has clearly not only signed on to that, but is now pressuring everyone else to do so immediately and without thought. This will, sadly, be another disasterous part of the legacy Pelosi, Hoyer and others will have to take to their graves.

Joe, this is from the excerpt you quoted, not your own writing, but it struck me and I'm wondering if it strikes anybody else:

with conservatives asserting that it includes too many checks on government surveillance powers

That's conservatives, the "champions of smaller government," or so we're always told, opposing a bill because they assert that "it includes too many checks on government surveillance powers."

Is it not clear from that one simple line that the modern conservative movement has gone completely through the looking glass?

In 1965, Robert Kennedy opposed all retroactive immunity on the basis that it might "be applied to 'murder or any other crime.'"

You deserve credit for addressing this issue, Joe, but expect copious criticism from the blogosphere, of course.

The whole point of it is to basically allow the President to order private corporations to do whatever he wants them to do with no legal consequences whatsoever. Without the right to take this to court not only will we never find out the full truth of what happened, but we're laying a dangerous precedent for future executive actions.

Agreed stringer. Anybody who doesn't see that the ramifications of this bill go far, far beyond the telecoms and government eavesdropping (though that by itself is reason enough to oppose this disgusting bill) is living in a fantasy world.

Can somebody refresh my memory? What's the term for the system of government where private corporations act as agents of an unchecked, uncontrollable executive authority?

Bottom line: We need to be absolutely certain that this information can not be used by the likes of Karl Rove to eavesdrop on journalists and whistleblowers.

From what I understand, these companies simply handed over lots of information that could be used for any purpose the government sees fit.

We need transparency, and absolute legal certainty, that the government cannot use this data-mining for political purposes, and it needs to be verifiable.

What is absolutely unacceptable is to simply say, "Bush would never abuse that power/information." He would. But even if he wouldn't, there is no guarantee that some day down the road someone with the same authority wouldn't abuse the authority.

If Bush has shown us anything, it is how fragile the checks and balances in the system are in preventing something like a Stalin or a Hitler from coming to power in a crisis. The biggest danger to our democracy is not telephone calls, but the possibility that the government created so there would be no-more kings is no longer capable of insisting our leader is just a man, sugject to the law just like any other citizen.

Joe-

What kind of government is it when the head of state can tell corporations that whatever they do can be made legal after the fact? It certainly is not a government of "laws, not of men."

I'm really sorry for not having anything more constructive to say, since everyone seems to have already said what needs to be on this utter caving, especially Glenn Greenwald. So let me just get this out of the way:

Joe, even for you, this is simply, utterly, and unforgivably HACKTACULAR.

And I still have no idea why the hell the Dem leadership just...caved. Yes, it's a caving, and it's being seen by everyone with a quarter of a brain as a caving. White House crowed about getting a better deal than they asked for. Republicans do the same, and are still bleating about Dems being utterly un-American, sane citizens who see this see their rights being flitted away because the AG can say 'the President wanted them to do this' and it completely innocuates corporations from out and out spying on innocent citizens...

The only ones who don't see this for the disaster it is apparently are the Dem Leadership and....you, Joe.

Really quick you said before you didn't have the legal background to evaluate this issue and made yourself look kind of silly attempting to. What has changed?

That posts to Joe I don't have a legal background Klein.

"AT&T provided National Security Agency eavesdroppers with full access to its customers' phone calls, and shunted its customers' internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center, according to a former AT&T worker cooperating in the Electronic Frontier Foundation's lawsuit against the company."

That started in '02 and '03. God alone knows how long it continued, whether it was the only such activity, or whether it was just a small component of overall government spying on citizens.

What information did they gather? What did they do with it?

We are American citizens. We have a right not to be spied on by our government unless it complies with certain requirements written into the Constitution two hundred years ago. That did not happen here.

With this bill, we'll never know what the government did with that information, and we'll set a precedent that lawbreaking is OK if the government tells you to do it.

This looks to me like black and white, right and wrong.

"but that the FISA law needed to be updated to include civil liberties protections and limitations guiding the use of the program"

I am sorry, Joe, but that sounds like Hoekstra talking. What were the weaknesses of the old FISA? That it allowed the government to wiretap up to 72 hours before getting a warrant? Why did the FISA court almost never refuse surveillance? Will you have the integrity to read Greenwald's take on this and tell us, exactly, where you think he is wrong?

"Can somebody refresh my memory? What's the term for the system of government where private corporations act as agents of an unchecked, uncontrollable executive authority?"

Technically, according to the strict definition of it, one could argue it's fascism. If that's what you're asking Fast Eddie. In theory it clearly is. Particularly in its original, conceived corporatism form.

Fascism in practice often deviates from this. But it generally begins in extreme nationalistic economic planning vis-a-vis corporatism and autarky (an economy that is self sufficient and does not participate in free trade.) That's how Germany began its rise to power in the 1930s. And while that is, always, a complicated metaphor to make, historically you're right.

But the problem is anytime the U.S. government deviates, even in a major sense, from what it should be (democratic and capitalist with checks and balances) people simply refuse to believe that their (our) government could ever have grown this out of whack. And hence they roll back the Constitutional checks and balances a little more. By convincing themselves it won't apply to them, hence it doesn't matter.

But yeah, it's another disturbing trend. And George W. Bush has (as everyone knows) been on an odd track of corporatism, neo-conservative military expansionism and Big Government that makes little sense coming from any American political party. If people still manage to elect McCain after this then the country's on an even scarier track than I thought it was.

I disagree with JK's analysis that this legislation takes the political bludgeon out of McCain's hands. Rather it puts the bludgeon into his hands because he can trot out the bipartisan support that crafted it as evidence against Obama's inexperience.

If all Greenwald wrote about it is true, then this legislation stinks to high heaven. If Hoyer and Reid, the guys who brought it together, vote against it, it is the classic smokescreen and run to save their butt from the fury that is going the come from the base of their party. Politics at its sleaziest.

This undermines Obama's "change" message because this legislation is worse than usual with telecom money pasting it all together. The Leadership isn't serving it political constitency, it is serving the big monied lobbying interests. Obama staying silent on it was a stupid mistake.

So we are back to the Democrates being stupid again. They inacted legislation which goes against the back bone of the party in the middle of a presidential election. Dumb, dumb and dumber. Oh brother.

What were the weaknesses of the old FISA?

This is the question to which we'll never get any answer. Bush and his acolytes continue to assert that FISA was antiquated and too restrictive, but none of them have ever once attempted to elucidate just what problems it creates, because if they did that there would be the possibility for compromise, and these people don't want compromise. That's why the telecom immunity, and all the wonderful corporatist/fascist precedent it sets, simply has got to be the true goal in all of this. They've been offered literally everything else they supposedly want out of this bill, but they refuse to compromise without the immunity piece.

Technically, according to the strict definition of it, one could argue it's fascism. If that's what you're asking Fast Eddie. In theory it clearly is.

That question was a little rhetorical, stringer, but you got it. :D

Kryptik-

It seems fairly apparent that the Dem leadership caved due to corruption. Rockefeller has somehow taken big bucks from the telecoms in this cycle. Much more than in the past. You may ask why a gazillionaire would need the money. He pledged to not use his personal fortune this cycle. It is a clear quid-pro-quo. But, of course, he will get away with it. Our Big Media journos are too busy looking into things like flag lapel pins, the Ethics committee is dysfunctional, and the US Attorneys? They do what Bush wants them to do, and this is something Bush wanted.

I know Stuart's argument about this yesterday was not very popular, but the fact remains, WHERE is Obama while all of this is happening? Playing gotcha with McCain over opting out of the public financing system? Obama's leadership is needed right now, on this most urgent of issues.

And the message somehow needs to be sent to people like Hoyer, Pelosi, etc., that there will be retribution for this collapse in the form of primary challengers, decreased donations, etc. The goal can't just be electing Democrats to office; it has to be electing capable and honorable public servants. Steny Hoyer is anything but.

Let's just wait for KT's piece. It's clear that Joe didn't read the legislation... or, even, any reporting on it that wasn't ghostwritten by the bill's sponsors.

It would be awesome to have a job that put as few demands on my intellectually as Joe's seems to. However, integrity is it's own reward, too...

JK: it is possible to update the law, and still hold people accountable.

If Qwest could abide by the rules and refuse to capitulate to a government that was clearly violating the law - you'll note that the world did not stop spinning when they said "No" - why couldn't the others?

You may be willing to overlook an outright evisceration of the Constitution, but I - and quite a few others - am not.

Here's another question for you, Joe: Why now? Why the urgency? I understand that Bush wants action before he leaves office but who cares? Surely this can wait until after the elections. The old FISA rules will keep us just fine until then.

You know what I don't get? The people who work for Time are human beings. Citizens. How can Joe and Mike et al, just watch their civil rights be flushed down the toilet like this.

Well, Mike doesn't care. He'll be ok once he's got that sweet White House gig lined up (Good luck with that btw).

And I guess Joe is thinking "Well, I'm Joe Klein, nobody's going to listen in to *my* phone calls!". Wake up. Please.

And Karen mentioned yesterday that she starts a weeklong vacation today.

Why are you people waisteing your TIME on this stupid blog? It's all MSM spin, joke line is the worst of them to boot. Tossing the 4th admendment is joes idea of a good compromise. WTF people! Get out of here!

Why now? Why the urgency?

That one's easy. The last law expired last August. The eavesdroping it authorizes is set to expire THIS August, just in time for the conventions.

The Dems are more afraid of being lied about in 30 second TeeVee spots than they are of our entire Constitutional framework crumbling to the ground.

I guess everyone has their priorities....

How did you feel about Nixon's Enemies List Joe?

"That question was a little rhetorical, stringer, but you got it. :D"

Sorry I'm notoriously bad at getting rhetorical questions. Even in person. My friends tease me about it all the time. For some reason it just flies over my head.

I still find the collection of logical fallacies and mistatements of fact involved here astounding--so much so that Joe has to be leaving something out.

None of this makes any sense on the face of it. From the bizarre, abstract "those who would do us harm" formulation to the weird notion that there are a few small factions in opposition, but that it was necessary to do in secret without involving judiciary committee staff to the simple fact that sitting on switches and vacuuming up everything doesn't provide any plausible security benefit. You can't find a security expert who will say there is a benefit. Moreover, doing it all in secret is like the Russians keeping the Doomsday Machine a secret. We want any bin Laden types to think the US can tap any call, read any email (even though it's not true--we don't have enough arabic speakers reading the traffic, and encryption techniques work too well.)

None of this makes any sense. None of the people who support this legislation can make a coherent case. They've stopped even trying to do so. They're just ramming through the bill. It's impossible to figure out why.

If it's complicity, that explains Rockefeller and Hoyer, but it doesn't explain Joe carrying their water. It can't be telecom contributions--Rockefeller's seat is safe, and his constituent, Christy Hardin Smith insists this can't be his reason. And, again, Joe isn't a recipient of telecom funds.

I know that digby and Glenn will just dismiss him as a worthless Village tool, but this is still way too weirdly mysterious.

We're gonna primary Hoyer in 2010. You can be sure of that. His seat isn't safe, not from the left.

From the link in the post at the word ":"

With AT&T and other telecommunications companies facing some 40 lawsuits over their reported participation in the wiretapping program, Republican leaders described this narrow court review on the immunity question as a mere “formality.”

“The lawsuits will be dismissed,” Representative Roy Blunt of Missouri, the No. 2 Republican in the House, predicted with confidence.

The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute.

“I think the White House got a better deal than even they had hoped to get,” said Senator Christopher S. Bond, Republican of Missouri, who led the negotiations.

This is really difficult to watch.

I suspect Joe's analysis might be a bit different if the "compromise" eviscerated the First Amendment instead of the Fourth.

Right but Paul, nothing has happened to the initial FISA law, it's as in effect as it ever was. We're perfectly safe! I guess you know that. And the Dems know it too. But they won't stand on those facts. So depressing.

How did you feel about Nixon's Enemies List Joe?

Moreover, how did he feel about Hoover's blackmail files? Surveillance of Martin Luther King? These power are always abused. Every time.

And the threat here is even hollower than commies in the 70s.

And, yes, where is Obama?

I wish someone could explain to me why a "written request" from the government requesting cooperation is good enough and why presenting the phone companies with a warrant shouldn't be the real standard for obtaining the phone company's assistance. The checks and balances that come with obtaining a warrant worked fine right up until September 10th. On September 12th they're suddenly inadequate? Particularly with the retroactive request clause in the FISA warrant request procedure.

I still think that the feds waving a request under the nose of our justice department, guys working for the president, isn't enough of a failsafe to make sure these things don't get abused again.

Either the government can spy without consequences or it cannot.
All the "But we were afraid" excuses are irrelevant.

Another thing Joe and proponents never answer--if this is necessary and good, why did the administration do it illegally and secretly?

Bob Barr beat Obama to the punch when it comes to condemning this legislation. He might start picking up the independent vote if Obama folds up like Pelosi and Reid.

As I recall, some of this electronic spying began before 9/11.

An interesting example of what's really happening was on This American Life last week.

"Lawrence Wright is a reporter for the New Yorker Magazine, and an author of the bestselling book on Al Qaeda, The Looming Tower. He’s also one of the few people in America who can say definitively that he was targeted by the U.S. Government’s warrantless wiretappping program, first exposed on the front page of The New York Times.

He tells the story of how he knew his phone calls were listened to...and how he then went on to question the head of US intelligence, Mike McConnell, about it.

Lawrence Wright first wrote about his experiences in an article in The New Yorker, called "The Spymaster." His latest article in the magazine is called "The Rebellion Within." (17 minutes)"

http://www.thislife.org/Radio_Episode.aspx?episode=357

So Joe, just remember when you didn't stand up for anyone else, and then when they came for you...

You're right Derek. Obama should just come out and oppose this thing already.

His people had said earlier today (before the meeting with Dem governors) he was reading it over. Really hope he has the sense to just come out and oppose this thing. It would be a huge boost for him and the law, as well as the right thing to do.

It was necessary to update the FISA law to make legal the new technologies that enable intelligence agencies to suss out suspicious patterns of phone calls, emails etc between known terrorists and persons in the United States and U.S. citizens abroad.

People who would pick up this argument and would use it in an intellectually honest way need to acknowledge that the PATRIOT Act *did* update the FISA law, and there were also changes in the subsequent reauthorizations. What was wrong with this process? Why did the administration and the telecoms break the law despite an active legislative process? It's not like these laws were collecting dust. Congress was making its wishes clear.

Hey Joe I just heard your main man (and co-author?) Pete Hokestra!
Must make you feel good to have him with you.

Why did the administration and the telecoms break the law despite an active legislative process?

And why did Bush tell a direct lie at the time this was going on?

http://thinkprogress.org/2005/12/20/bush-caught-on-tape/

Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.

As for "Why are the Dems caving?": What if they lust for that power, themselves? Could it be that they expect Obama to win in November, and want to be able to do the same things as Bush did, under color of law?

If so, I'm beginning to wonder where the true distinction is between the two parties, anymore. This would confirm that they're both in it for power & money. Not that I ever had much doubt...

Curiously, the R-wingnuts are quiet, today. Surely, they realize this means that the government could spy on them, with no restrictions. Or do they not mind?

Bad, ill-informed reporting by people like Mr. Klein is a major reason that this type of law is being rammed down our throats.

It's a sad day for American and our Constitution.

Stoller's looking for comments on a thread to be forwarded to Hoyer's office at openleft.

Joe:
Are you telling us that you've finally read up on FISA and related issues(Unlike when you relied on Hoekstra for your uninformed opinion last time)? Say it ain't so, Joe!!

I forgot to add. Who is more believable, Joe Klein or Jonathan Turley? Not Joe Klein, that is for sure.

jkconscience there is no way Joe read the bill.

Now Issa is praising the bill. Great company you keep Klein.

Glenn reiterates the point I made upthread:

This whole controversy began because George Bush, in December of 2005, got caught breaking our spying laws for years. He did so because he embraced a radical and un-American theory that asserted he has the power to break all of our laws provided such lawbreaking is, in his view, related to "defense of the nation." That lawbreaking theory is at the heart of virtually every major controversy of the last seven years, and it remains entirely in tact and preserved:

At issue is nothing less than the assertion of Richard Nixon:

Well, when the president does it that means that it is not illegal.

Apparently it took a while but Tricky Dick's wish has now been granted.

http://www.salon.com/opinion/greenwald/2008/06/20/bipartisanship/index.html

Everything else is just details.

jayackroyd, or any of the other better-informed folks out there: what appellate recourse do we have to overturn this law? Can anyone file a lawsuit to challenge the Constitutionality of this?

If not, since this is a direct attack on the Constitution by domestic enemies, it might be time to finally take up arms and refresh the Tree of Liberty.

smedley - Firstly...THANK YOU for spelling my name right. You have no idea how often it's mispelled for some odd reason.

Secondly...yeah, that stinks of high corruption at its finest and most malodorous. It's amazing how people like Rockefeller seem to be willing to sell out not only their party for this utter capitulation, but America in general. Seriously, I don't think anyone who actually understands what this does outside of the REpublicans pushing this thinks this is a good idea. And for those leading Dems who simply want to push it to innocuate themselves from Nat'l Security issues, they apparently haven't learned from the last 7 years that capitulation to Republicans on bills like this makes you look WEAKER, NOT STRONGER. There's absolutely no political reason to do this, and it completely undermines what we voted you in for in '06.

Mr. Nice Guy - Even if they were looking for this power IF Obama gets elected, this kind of thing does nothing to actually HELP him get elected. It hands a damn bludgeon right into McCain's hands and makes Democrats look continually soft, and that reflects badly on Obama no matter what his stance in the end might be.

It's amazing to me that after getting absolutely pulverized for screwing up his FISA analysis before, Klein goes there again.

I don't know to laugh or cry.

Let's boil it down. All of the supposed and much over-hyped "security" concerns could have been addressed at any time, with massive bipartisan support, provided that retroactive immunity for criminal conduct not get included.

If there were actual and serious concerns, retroactive immunity for criminal behavior should not be a bar.

If you are seriously asserting that retroactive immunity IS the security concern, that's just laughable. It's not a serious position.

Furthermore, what about the accountability for lawbreaking by the executive branch?

Finally, the democrats are being politically stupid again because they merely look weak while capitulating to look strong. The Constitution and American rule of law deserve better.

We know the republicans are not serious about foreign policy or the Constitution and the Rule of Law, but democrats should know better.

Mr Nice Guy--

A good place to ask that question is in the FDL live blog. empty wheel is there, and there are lawyer types who would be able to better answer you.

From what I can tell, no, there is no appellate path to get to the supreme court.

Jay
Thanks for that Stoller heads-up.
Here's what I posted:

While everyone may have varying opinions about what level of leeway the NSA should have in accessing raw telco data, the bottom line remains that the President can't and shouldn't have unlimited leeway in circumventing the law. By pressing for the current "compromise" you are giving the current President and all future Presidents the freedom to act contrary to any and all controls that were put in place by the Framers of our Constitution.
If the President is free to order violations of the law and his AG is free to shred whatever civil recourse the victims of those violations may have, then we might as well go ahead and declare the rest of the Constitution null and void as well.

Time for a little history lesson, again:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
-Benjamin Franklin

From Joe:

There are those, like Senator Russ Feingold and assorted civil liberties activists, who believe that the legalization of this program erodes essential constitutional rights of Americans. I respect their point of view, but believe that the greater good here will be the protection of Americans from terrorist attacks--and the prevention of extremist governments like George W. Bush's from illegally spying on U.S. residents.

Sorry, Joe, but we have to agree to disagree. Like Sen Feingold, I believe that we cannot simply cede our 4th Amendemnet rights out of fear. As the wingnuts like to spout ad nauseum, "Then The Terrorists Will Have Won."

Forget Klein, who at least articulates why he believes political gamesmanship ("remove a bludgeon") and fear of terrorists justify abrogating the Constitutional and elevating the Executive and corporate enablers to be above the law.

Who I am deeply disappointed in is our Democratic leadership for taking the money and running, and also Obama, who could have used this opportunity to galvanize his party and those who continue to see our country abdicate the rule of law.

As I noted in my comment, Paul, I find the process as disturbing as the result. They know this bill is unpopular and wrong, serves a constituency of literally hundreds of people. So they're jamming it through on a summer Friday, with no debate and no access to the bill by the judiciary committee members or staffers.

It just shows profound contempt for representative processes. And it does bother me that people like Joe Klein are complicit in peddling nonsense like the opposition is small factions of dirty hippies and libertarians.

You don't stifle debate on issues that have broad support.

If Bush put half the effort into finding Bin Laden that he has in spying on Americans, I'd reconsider my cynicism that this has anything to do with terror.

REQUEST FOR A CORRECTION:

Joe, the surveillance actually didn't start just after 9/11, as you said. The program actually began before then. Qwest was approached before 9/11. Doesn't that rather undercut one of your arguments? And even if it doesn't change your opinion, would you consider a revision?

It's not a compromise, it's capitulation. We should be used to it by now, though, right? Remember Roberts, Alito, Priscilla Owen? Loads of tough talk but no actual spine from Democrats. Depressing.

memekiller---

That's what I mean. WTF? This "threat" is inconsequential.

Mr Nice Guy--

Marcy has posted an answer to your question:

http://emptywheel.firedoglake.com/2008/06/20/a-letter-to-the-next-president-of-the-united-states/

Mike M.:
Why bother asking. Klein doesn't care. He's just sucking up to his boy Hoekstra. The Constitution be damned!!

"and the prevention of extremist governments like George W. Bush's from illegally spying on U.S. residents."

So, to sum up:

To prevent Bush from spying illegally we must make it legal. Are you channeling Orwell? or Lewis Carroll?

Christy paraphrases Conyers:

The grant of retroactive immunity is inconsistent with our basic principles. We are intervening in a court decision to achieve a pre-ordained outcome -- for the first time in pending litigation. The executive branch has been deemed to be very near an imperial presidency from a number of constitutional scholars. We have gone too far. A fight to restore our precious rights and liberties must continue.

Joe, can you make any kind of coherent answer to this argument?

Joe, to add to what smedley just asked you, what's your position on the legalization of marijuana?

5. The compromise reached requires a federal court to approve...requests for immunity--with approval granted if the company...can prove that it received a written request from the government asking for cooperation in the implementation of the NSA program. In other words, the telecoms would be exempted from prosecution if they cooperated in ways that will now be perfectly legal under the new law.

So you admit that the way they behaved before was breaking the law (or at least forms the basis for investigation)?

Why would you support that?

Not to mention, you say you want to deprive Bush & Co. of a bludgeon. But then you say that the telecomms just need to provide a written request from the government?

Joe, we're dealing with a government that HAS BROKEN THE LAW. It's not going to be any big deal for them to write a little piece of paper that says they asked the telecomms to help them out.

How do you deal with the cognitive dissonance?

293 Yays, 129 Nays

From http://www.cnn.com/2008/POLITICS/06/20/congress.wiretaps/index.html

House Majority Leader Steny Hoyer said the new plan is "not perfect" but "strikes a sound balance" between intelligence-gathering and civil liberties.

And herein lies the problem. There is no "balance" to be "struck" between intelligence gathering and civil liberties. Our civil liberties are paramount, and our damn public servants ought to damn well know that.

Whatever can be done to remove Steny Hoyer needs to be done, as soon as possible. His actions here are the equivalent of a heart surgeon leaving his wristwatch inside a patient. Gross malpractice.

So is Obama, um, trapped near the inner circle of thought or something?

Jay, thanks for the link.

I still can't believe our elected reps would sell us out like this. Smaller issues, sure - happens all the time. But this one is _big_.

Yes Mr. Klein, regular Swampland readers who know of your stalking horse role for Pete Hoekstra are not surprised by your opinion.

Where's Rustydog, QH, texte, etc.? Don't they realize a President Obama will inherit these powers? Who do they think the IRS is going to tax beginning in 2009? Whose calls, emails, etc. do they think President Obama's appointees will review?

And speaking of Obama, what is his position?

Dear Joe,

It is evident from your article (particularly its hilarious conclusion) that you seem to have missed the point entirely.

This is a debate about whether or not individuals whose legal rights were violated by NSA program' have the right to a day in court. You would think that this would be a very simple issue; You would think it would require very little debate. Hell, I'd go so far as to say it should transcend party lines, but its partisan politics as usual this year. Its latest casualty, the 'rule of law.' To tell you the truth I'm not all that surprised, it was only a matter of time.

Quite frankly the compromise you speak of sucks! It is not a compromise but amnesty corporation's who engaged in the act of data theft. How dare you justify your flimsy, unprincipled excuse for a position with talk of 9/11 and denying the Republicans a 'political bludgeon.' With men of your caliber speaking for the masses its no wonder this country is is such fine shape.

Yours truly,
--A concerned citizen of the Bear Flag Republic.

So is Obama, um, trapped near the inner circle of thought or something?

It is going to be interesting watching Obama primary supporters figure out that he is a cautious, middle of the road politician.

And speaking of Obama, what is his position?

He's opposed to telecom immunity, he's always been opposed to telecom immuninty and that's why he is deliberately and carefully doing absolutely nothing and getting as far away from this as he possibly can. It wouldn't surprise me to learn that he timed his campaign finance announcment in order to provide the greatest distraction from today's vote.

Supporters who have contacted his campaign have been getting a recycled form letter originally drafted in January when a Senate Filibuster was a possibility.

Thankfully I found out about this, and called my representive, Andre Carson, at a little before 12. He voted nay. I'm not deluding myself into believing my call made the difference, but it's possible. Sadly, it passed overwhelmingly anyway.

It's not enough, but I hope those of you that care about this issue will switch phone service to someone that did not cooperate. My current contract with at&t is up in a couple months, and I do not intend to renew it. Does Qwest provide national cell cervice? If not, can anyone tell me who does that resisted the wiretaps?

McCain and Obama are like polarized molecules.

McCain placates the center and votes the base, Obama placates the base and votes the center.

It really is interesting to watch.

Also, fasteddie, keep in mind that Obama doesn't need to be accountable to the DFH. We have no place else to go. There is much disappointment in store, believe me.

Myself, I think a strong stand on this, with a direction toward pre-empting the fearmongering and the show trial would be politically wise. But he seems more likely to see Terra as a political bludgeon, rather than a shopworn gimmick that is only fooling 20 percent of the people at this point. Like Joe that way.

If not, can anyone tell me who does that resisted the wiretaps?

http://www.credomobile.com/

I don't know their history but they're selling themselves as an alternative.....

Does Qwest provide national cell cervice? If not, can anyone tell me who does that resisted the wiretaps?

Credo is the way to go. They fund progressive causes and use their network to organize political actions. And promise never to tap your line.

Email me for signup info. They'll send 25 bucks to a charity in return for a referral.

jay@ackroyd.org

Sorry Paul.

also, there is a concrete way to register your disgust with this:

http://www.actblue.com/page/fisa

jayackroyd, when you consider that Dan Abrams continues to argue nightly that Obama's "legalistic yet accurate" defense of habeas corpus is a politically dangerous position, is it any surprise that placating the 20 percenters (and Joe) on the telecom issue was the way to go?

Duly registered.

I don't see any glaring holes in Credo's plans. No rollover, but I can live with that. The plans look as good as everyone else's. So I'll give them a call. Thank you Paul Dirks!

I keep thinking of the Sons of Liberty, and what sacrifice it must have taken to openly rebel against your own government. Think of what they risked: their possessions; possibly their friends and relations; their freedom, if they got caught; and, of course, their lives.

Even knowing that with this vote, our elected representatives have destroyed one of the core foundations of our country, and pushed us one step closer to tyranny, would any of us, today, have that same gumption to take up the cause and fight to save this country and its Constitution?

Oh, hey, my show's on. I'll catch you guys later.

Rollcall:

http://clerk.house.gov/evs/2008/roll437.xml#Y

Blue Dogs. Plus Pelosi and 50 others.

Todd--

That's my point, yes. He's cautious, not principled. He sees the same bludgeon Joe sees. I think taking a strong position could help and can't hurt--they're going to run the show trials anyway, they're going to run on Terra anyway, and they're gonna call him weak and naive anyway.

I'm with the netroots people who believe it is more effective to take strong, principled positions. On this one, he can use it get in front of the fearmongering messaging that is coming. The cautious thing to do is not get in front of it--in part, as you say, because of the media support for the fearmongering stories.

All hail Steny Hoyer, the Philippe Petain of the new millenium.

I say, come the elections in the fall, we try to vote every single one of these spineless SOBs out. Every one we can, at any rate.

It is going to be interesting watching Obama primary supporters figure out that he is a cautious, middle of the road politician.

jayack: I wasn't an Obama primary supporter or even an Obama primary voter (registered I in a closed primary state). I gravitated to Obama when it became clear that he would win and be the anybody-but-McCain I was looking for. Vocal opposition to this abomination is what I would expect of the Dem nominee no matter who that was. There's politics and then there are those things that are larger than politics, and this is one of those things.

I just wrote the Majority Leader's office with early best wishes on Steny's upcoming January 2011 retirement from public life.

Terrible law. Terrible column.

Most of my criticisms have already been stated, but I just want to point out one thing - private suits by aggrieved parties whose constitutional rights have been violated do not constitute "prosecution" as Mr. Klein states. Rather, they constitute valid suits in law or equity that seek damages or specific performance. When Mr. Klein states that he fears "prosecutions" of the telecoms, he is being disingenuous - there were never any such prosecutions contemplated. Rather, individual citizens were relying on centuries-long common law traditions which, like the 4th Amendment, have now been swept away.

Citizens whose rights have been violated now will have no redress; no hearings; no judicial review.

It is a sad day for the Constitution and the Republic. So sad that I don't even feel like discussing all of Mr. Klein's other errors and lies.

This entire episode will go down in history as one of the most craven, disgusting acts of cowardice in American history.

And you get to wear it around your neck, Joe.

Commenters:

I hope that you will bear with me as I unwrap Joe's positions (as such), because these arguments, as foolish and disingenuous as they are, really can't be allowed to stand unchallenged --as they stand today in Washington circles. These arguments are particularly revealing, not only of the insularity and myopia that characterizes the Beltway political and media scene, but of the base social instincts and appalling lack of consistent, coherent principles imbued in the very core of political life in our nation's capital and in our national media elites.

Let's take these one by one, shall we?

1. It was necessary to update the FISA law to make legal the new technologies that enable intelligence agencies to suss out suspicious patterns of phone calls, emails etc between known terrorists and persons in the United States and U.S. citizens abroad.

What "new technologies"?
How does Joe know about these "new technologies"?
Why don't we know about their use?

What does "suss out suspicious patterns" mean?
How is this exercise substantially different from invisibly breaking into every single American citizens' homes, and attempting to "suss out suspicious patterns" of behavior in people's living rooms? How is this exercise substantially different from the police secretly opening (and resealing) Americans' letters, and reading every word in the attempt to "suss out suspicious patterns" of communications?

How is this exercise substantially different from the practices of the state during the Soviet era in Russia?

2. There was broad consensus in the Congress that if a suspicious pattern of communications is found and a U.S. person is targeted, there needs to be approval granted by the FISA court. And, as Nancy Pelosi insisted, it needed to be established that the FISA law was the only way to legally wiretap an individual--in other words, under this law the Executive can't just go ahead and do it.

"There was broad consensus in the Congress" that it should be against the law for citizens to be secretly listened in on by the state in the absence of a warrant, and so it enacted the Foreign Intelligence Surveillance Act, making such unwarranted spying illegal.
Approval by the FISA court is what the FISA statute was for in the first place. Nancy Pelosi's insistence isn't terribly meaningful, since she's insisting on something that exists under the law already. Appeals to "consensus" don't confer legitimacy on bad law, as the "Authorization for the Use of Military Force" of 2002 clearly demonstrates.

3. The NSA data-mining program legalized by this law was and is still opposed by small factions on the right and the left:

Again, what "NSA data-mining program"? Even if Joe's somehow privy to key cabinet-level details of this "program", surely the entire Congress is not, and certainly not the American people. If there is a mysterious and yet entirely legitimate "NSA data-mining program" to legalize, then surely the law has been repeatedly broken for the past seven or eight years, hasn't it?

These entirely rhetorical attempts to marginalize opposition to law-breaking, and support of normal American judicial process are as disingenuous as they are absurd.

Poll after poll tell us something like this:

By a 76 - 19 percent margin, American voters say the government should continue monitoring phone calls or e-mail between suspected terrorists in other countries and people in the U.S., according to a Quinnipiac University national poll released today. But voters say 55 - 42 percent that the government should get court orders for this surveillance.

Voters in "purple states," 12 states in which there was a popular vote margin of 5 percentage points or less in the 2004 Presidential election, plus Missouri, considered the most accurate barometer of Presidential voting, want wiretap warrants 57 - 39 percent.

Red states, where President George W. Bush's margin was more than 5 percent in 2004, disagree 51 - 46 percent with the President that the government does not need warrants. Blue state voters who backed John Kerry by more than 5 percent want warrants 57 - 40 percent, the independent Quinnipiac (KWIN-uh-pe-ack) University poll finds.

A total of 57 percent of voters are "extremely" or "quite" worried that phone and e-mail taps without warrants could be misused to violate people's privacy. But 54 percent believe these taps have prevented some acts of terror.

"Don't turn off the wiretaps, most Americans say, but the White House ought to tell a judge first. Even red state voters, who backed President Bush in 2004, want to see a court okay for wiretaps," said Maurice Carroll, Director of the Quinnipiac University Polling Institute.

There simply does not exist such an "extremist civil liberties fringe"; the American people's common sense is what truly lies at the heart of opposition to warrant-less spying --and lawbreaking.

4. In classic Washington fashion, both these groups seized on a subsidiary provision--the granting of immunity to telecommunications companies that had cooperated with the initial, illegal NSA program--as a way to block passage of the bill.

In classic Washington fashion, a bogey-man has been introduced in order to deliberately obscure the essence of the action being voted on, which is to allow the President to break whatever laws Congress passes --even this one-- by rendering him and his agencies immune from judicial oversight. Here's a perfect description of the real consequences of retro-actively legalizing such "cooperation" from radical, extremist, fringe-worthy, partisan lunatic Al Gore:

The President and I agree on one thing. The threat from terrorism is all too real. There is simply no question that we continue to face new challenges in the wake of the attack on September 11th and that we must be ever-vigilant in protecting our citizens from harm.

Where we disagree is that we have to break the law or sacrifice our system of government to protect Americans from terrorism. In fact, doing so makes us weaker and more vulnerable.

Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.

Crazed partisan bill-poisoners like the former Vice-President haven't "seized on a subsidiary provision", they have simply joined a majority of the American people in expressing an almost comically normal disapproval of law-breaking.

5. The compromise reached requires a federal court to approve, or disapprove, the requests for immunity--with approval granted if the company in question can prove that it received a written request from the government asking for cooperation in the implementation of the NSA program. In other words, the telecoms would be exempted from prosecution if they cooperated in ways that will now be perfectly legal under the new law.

Super. So if Alberto Gonzales' successors provide a "written request" for Federal Express to photo-copy every letter from Americans that they deliver, so that the state may open and read them all in secret, that's all perfectly fine and in keeping with our system of government. The proposed law requires the judicial branch to confirm the legality of whatever the Executive says that they did --even if it wasn't at the time. It's absolutely a testament to the insanity of our time that we're back to debating the advisability (and constitutionality) of ex post facto laws:

(from the Latin for "After The Fact") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

Generally speaking, ex post facto penal laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most common law jurisdictions do not permit retroactive criminal legislation, though some have suggested that judge-made law is retroactive as a new precedent applies to events that occurred prior to the judicial decision. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.

There simply is no order or request that the state can give that absolves the order-taker from the responsibility to act lawfully and morally, and for that liability to be examined and judged according to due process in a court of law. That's what the Nuremburg trials were in part meant to convey about and to the civilized world.

My feeling, from the start, has been that the NSA data-mining operation is a necessary tool in the hunt for terrorists who mean to do us harm--but that the FISA law needed to be updated to include civil liberties protections and limitations guiding the use of the program.

I hope that Joe will forgive me for not particularly caring about his "feelings" with respect the further abridgment of my own constitutional rights and the rule of law in this, my, country. It is increasingly apparent as our fortunes and our dignity in the world declines that this precious inheritance is all we may have left of our nation's greatness, and that this treasure of ours is under threat of destruction from a tiny fringe minority interested solely in the preservation of its own privileges, protections and way of life (in true "classic Washington fashion"): Beltway Society, its sycophants and its servants.

I favor the compromise because I believe the civil liberties encoded into the law are important, and because I wanted to deprive the Bush Administration, and the McCain campaign, of the political bludgeon.

And so we come to understand that the real motivation for Joe's position isn't principle or fact --it's fear. Joe is once again merely afraid of being rhetorically "bludgeoned" by Republicans. This is not extraordinary for the class of person that inhabits Joe's world, but it is revealing of the cravenness that passes for normalcy in their society.

...their cooperation with the government, at a moment when just about everyone was freaking out about the terrorist threat (i.e.--right after 9/11) was understandable.

This is really the essence of Joe's (and the Village's) entire argument: "We aren't responsible for enabling any of the terrible policies of the past eight years, because the attacks on September 11th, 2001 scared us so badly". Since "everyone was freaking out", everything can be excused, nothing deserves condemnation, least of all "cooperation with the government". The war can now be "opposed" from a safe distance, with all involve secure in the knowledge that their roles in helping this same government lie to Americans will be forever forgiven in light of how "freaked out" everyone was. The existence of Japanese-American internment camps testifies to the moral bankruptcy of this position.

Prosecuting them now, for past actions that will become legal when this bill is passed, is analogous to prosecuting doctors who performed abortions before Roe v. Wade after the court ruled...or prosecuting speakeasy owners after prohibition was overturned.

...or prosecuting the Bush Administration for the sanctioning of torture, or censuring the President and his cabinet for lying to the American people about "mushroom clouds" so that they could invade a sovereign country that was no threat, or suing the government for holding innocents in indefinite detention with no due process. None of these are analogous in the slightest, because of one key fact that Joe manages to omit.

Liberal-friendly rhetoric aside, there is no analogy to "doctors who performed abortions before Roe v. Wade", because we don't know what the telecoms actually did. That is the key fact that Joe cleverly leaves out. We have no idea whether the conduct of the telecoms (and, by extension, the Bush Administration) was that which may be legalized going forward by the bill in question, because all we do know at this point is that there were at least two secret rooms constructed at AT&T and Verizon facilities equipped in a way as to seem to indicate that they routed all communications through secret government channels. That's all we know. What retroactive amnesty provides is not that the telecoms will be immunized from prosecution (remember, these are private complaints, not prosecutions) with respect to newly legal activity described in the bill, but amnesty against any lawbreaking whatsoever, as long as the government produces a secret letter saying "we authorized something that we can't tell you about". This isn't about putting abortion providers in jail a