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Congressional Democrats Need Some FISA “Encouragement”

I don’t know what it will take to get the Democratic leadership to stand up to the arrogance, lying, and wholesale law-breaking of this deeply unpopular President and his worst-ever Administration.

It’s bad enough that the Bush Administration and Republican leadership have misled Americans about SCHIP and how they helped their right wing propagandists smear and intimidate the families of children helped by this worthwhile program. But even that nastiness has been eclipsed by continuing revelations of the Administration’s unlawful domestic spying and the willing since-pre-9/11 complicity of America’s telecom companies.

Update: ACLU released a statement this a.m. calling on the House to vote against the current FISA Bill. See comment 75 for full text. From their statement:

Washington, DC – The American Civil Liberties Union today announced its opposition to the RESTORE Act, saying the bill gives the government the ability to spy upon Americans without an individual warrant. Since the bill does not require individual warrants before government agents seize material from Americans on American soil, it fails to be constitutional. . . .

“The House bill is a disappointment and does not contain the protections that Americans must have in a democratic society,” said ACLU lobbyist’ Michelle Richardson. “If the rumors are true, the Senate bill, like the Protect America Act, appears to have been written by the administration and is designed to give the government all the power and destroy even minimal checks and balances,” she added.

On Monday, Verizon, one of the nation’s largest telecom companies, acknowledged that in hundreds of instances since 2005, it gave the Bush Administration access to its customer’s private communications without warrants required by the FISA, federal communications statutes and the US Constitution. Other major US companies are undoubtedly doing the same (except Qwest?) but simply haven’t acknowledged it fully.

The FBI has used thousands of warrantless National Security Letters to require the companies to reveal records of telephone calls of suspected targets, the calls made by everyone the targets called, and the calls of everyone that second group called. The only reason the companies may have balked at disclosing the second or third circle of “friends” is because, they claim, they didn’t compile records in that manner.

On Administration orders, the companies refuse to tell Congress the full extent of their cooperation or the nature of the surveillance programs they have been operating. As Kagro X and emptywheel have noted, we’ve now reached the absurd stage in which Bush/Cheney are effectively invoking the “State secrets” doctrine — a doctrine created by courts to keep sensitive national security information from non-secure court proceedings — to prevent Congress from knowing how the executive and private companies violated Congressional statutes.

What’s it going to take, Congress? The regime’s message to you is clear: you are not entitled to know what a lawless executive branch is doing nor allowed to know what telecom corporations are doing in violation of the law and their promises to maintain the privacy of their customers. Yet you are expected to pass legislation providing retroactive immunity from still unknown unlawful actions ordered by the government.

The Administration is now operating entirely outside the Constitution, while being cheered on by its rightwing supporters and with apparent Beltway acquiescence. And Congress has done nothing about it. So it is only slightly encouraging that Senators Leahy and Specter are claiming they will oppose retroactive immunity unless/until Congress is fully informed about the nature and extent of the surveillance programs and the companies’ complicity. These promises ring hollow against reports that the Senate bill will likely include retroactive immunity, while the House version now moving to the floor [see Marcy’s take at TNH] would allow so-called “basket” warrants instead of particularized, case-by-case warrants historically required under the Constitution’s Fourth Amendment. House efforts to require particularized warrants have apparently failed, even though the Fourth Amendment is clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For over two hundred years, this right has been one of the most hallowed and essential foundations of individual freedom, yet it is being systematically eviscerated by a lawless, irresponsible and untrustworthy regime and a compliant Congress. The Constitution is under assault from a far more serious threat to our liberties than any we face from terrorists or external enemies.

Wake up and do your jobs, Congress! Every Senator, every Representative, should demand that this President obey the law and uphold the Constitution. And no company or public official who violated the rights of Americans should be let off scot free or allowed to continue operating outside our Constitutional framework.

Please keep making those calls regarding FISA and SCHIP.

Rugby enthusiasts looseheadprop and emptywheel sent us the All Blacks Haka video. It’s either a cheer to rally the Democrats and any remaining Constitutional Republicans to stand their ground on FISA restoration or a portent of how the American people will view them if they don’t.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley