Framed

New Declaration

From an ad in yesterday's New York Times:

INDEPENDENCE DAY
July 4, 1776 - 2008

When in the course of human events the government becomes destructive of the ends for which it was established, it is the Right of the People to alter it and demand restoration of those Constitutional Principles that have so long assured their Liberty, Safety, and Happiness. Therefore, on the anniversary of our Independence, we offer this new declaration for our times.

  The history of this president is one of arbitrary usurpations of power, the effect of which is to establish tyranny through false promises of gerater security.

  He has created a multitude of secret programs and sent swarms of petty officers to spy on Americans in a misguided effort to combat foreign terrorism. He has invested these agents with sweeping new powers to monitor our conversations and ransack our personal papers and effects without judicial supervision or any reason to believe -- as the Constitution requires -- that a crime has been committed.

  He has further claimed the power to disregard legislation that Congress has passed.

  He has suspended the laws and treaties against torture, authorized the kidnapping of mere suspects, and transported hundreds of prisoners beyond seas so that no independent judiciary could question the legality of their mistreatment.

  He and his supporters in Congress have granted amnesty to the officials who unleashed torture and humiliation upon helpless prisoners, to the disgrace of our nation.

  He has denied these prisoners access to attorneys, family, and friends and has claimed the right to try them before military tribunals specifically designed to disregard the most basic principles of law.

  He has imprisoned thousands of lawful immigrants for months without charges, under brutal conditions, until his agents, rather than independent courts, decide that they posed no threat.

  He has wrapped his usurpations of power and his deprivations of liberty in thick cloaks of secrecy, thereby showing contempt for the rule of law and the proper functions of Congress, the courts, and the press.

  At every stage of these oppressions we have sought redress, but our petitions have been answered only by repeated injury.

  We, therefore, resolve to resist these usurpations by all lawful means at our disposal. We insist that the powers of our national government be shared by all branches of that government and not concentrated in one alone. And we call upon Congress, the courts, and the press to reassert their constitutional functions and restore the promise that is America.

To these ends, we mutually pledge our lives, our fortunes, and our sacred honor.

Inhaling

Look: I always said that Barack Obama was not a liberal.  It's sad, though, that the constituency for civil liberties in this country is so pathetically weak that Obama (and other people who should know better) can trash it so easily in the quest for the support of more powerful groups:

Reaching out to evangelical voters, Democratic presidential candidate Barack Obama is announcing plans that would expand President Bush's program steering federal social service dollars to religious groups and — in a move sure to cause controversy — support their ability to hire and fire based on faith.

This practice is nothing more than an unconstitutional boondoggle, a way to buy the support of evangelical voters by channeling tax money to churches for the operation of questionably effective social programs.  If all that was involved was patronage, well, that's just politics.  But this combines the stale odor of patronage with the acrid smoke from the torching of our civil liberties.  As he demonstated with his sell-out on warrantless wiretapping and telecomm immunity, Obama seems to have no problem inhaling those fumes.

Aspects

I was so revolted by the House's passage of the warrantless wiretapping/telecomm immunity bill--and the Democrats' craven acceptance of same--that I couldn't bring myself to write anything here for a couple days.

Things still look rather bleak, but at least Feingold and Dodd are going to try to mount a filibuster.  We'll soon see if the Senate gets 60 votes for cloture.

Insofar as I can find anything "interesting" in this revolting, un-American piece of legislation, it is this: many of the bill's opponents, including the above-named two Senators and most of the bloggers who have rallied against the bill, have focused on the telecomm immunity provisions.  I agree it's appalling to give fat-cat lobbyists a get-out-of-jail-free card for their lawbreaking clients.  It weakens the whole principle that we are a government of laws, not men.  It will make it difficult, if not impossible, to find out the truth of what this administration has done to our civil liberties over the last seven years.  It weakens Congress as an institution: yeah, we made warrantless wiretapping illegal, but see we didn't really mean it before . . . .

Still, if I had to pick the worst aspect of the bill, I'd pick the seven-days provision, which allows the government to wiretap people for a week without even trying to obtain a FISA warrant.  I don't recall anything about there being a seven-days exception to the Fourth Amendment.  And I guess I am more worried about what the government may do in the future than what it has done in the past.  For that matter, I have serious reservations about the FISA system as is.  Secret courts run by anonymous judges that approve warrant requests 99.9% of the time are hardly much protection against a government bent on violating people's civil liberties--but it's marginally (very marginally) better than nothing.

Perhaps it's easier to whip up outrage over amnesty for phone companies; nobody likes them much anyway.  Still, if I had to choose which is worst between telecomm immunity looking backward and warrantless eavesdropping looking forward, I'd opt for the latter.

Keep your fingers crossed on cloture, and keep your fingers busy dialing your Senators' offices.

Antidisinformation

Perhaps the reason people aren't marching in the streets over the House's action on telecomm immunity and warrantless surveillance is that the issues are hard to understand, and there is so much disinformation out there, courtesy of TIME magazine and others.  Here is a pretty good explanation of what's at stake:

Imperfect

I got a call late this afternoon from a young, enthusiastic Obama volunteer who had just arrived here in Northwest Ohio by way of her home in Pennsylvania and her college in New Hampshire.  She was looking for people to go do voter registration canvassing. 

I told her I would--I still support Obama--but I told her that I was doing it despite being pretty disappointed with his stand on the FISA legislation.  The volunteer was perplexed, and asked what that was.  I explained.  She had heard something about telecomm immunity, but not recently, and didn't really know what it was all about.  She knew nothing about the warrantless wiretap provisions of the bill Obama says he supports.

It struck me as amazing--and a little disturbing--that a campaign volunteer, someone who presumably is more attuned to politics and government than the average Joe, was unaware that her candidate had just announced that he supported the suspension of the Fourth Amendment and the abrogation of the rule of law.

Could it be, I wondered, that the person on the other end of the phone with me was just as uncritically in love with Barack Obama as so many Republicanoid zombies were in love with George W. Bush just four years ago?

Glenn Greenwald thinks that was the case:

The excuse that Obama's support for this bill is politically shrewd is -- even if accurate -- neither a defense of what he did nor a reason to refrain from loudly criticizing him for it. Actually, it's the opposite. It's precisely because Obama is calculating that he can -- without real consequence -- trample upon the political values of those who believe in the Constitution and the rule of law that it's necessary to do what one can to change that calculus. Telling Obama that you'll cheer for him no matter what he does, that you'll vest in him Blind Faith that anything he does is done with the purest of motives, ensures that he will continue to ignore you and your political interests.

Beyond that, this attitude that we should uncritically support Obama in everything he does and refrain from criticizing him is unhealthy in the extreme. No political leader merits uncritical devotion -- neither when they are running for office nor when they occupy it -- and there are few things more dangerous than announcing that you so deeply believe in the Core Goodness of a political leader, or that we face such extreme political crises that you trust and support whatever your Leader does, even when you don't understand it or think that it's wrong. That's precisely the warped authoritarian mindset that defined the Bush Movement and led to the insanity of the post-9/11 Era, and that uncritical reverence is no more attractive or healthy when it's shifted to a new Leader.

What Barack Obama did here was wrong and destructive. He's supporting a bill that is a full-scale assault on our Constitution and an endorsement of the premise that our laws can be broken by the political and corporate elite whenever the scary specter of The Terrorists can be invoked to justify it. What's more, as a Constitutional Law Professor, he knows full well what a radical perversion of our Constitution this bill is, and yet he's supporting it anyway. Anyone who sugarcoats or justifies that is doing a real disservice to their claimed political values and to the truth.

Obama himself frequently refers to himself as "imperfect," and I for one don't expect anything else from our human leaders.  Still, for his imperfections to be made manifest on a question of fundamental American civil liberties is disheartening in the extreme.

Principles

What scares me the most about the telecomm immunity/warrantless wiretap bill that the House so cravenly passed yesterday is that some of our lawmakers justify letting the phone companies off the hook, so to speak, in the manner of Senator Kit Bond, who actually said this:

When the Government tells you to do something, I think you all recognize, uh, that that is something that you need to do.

It's funny: we teach our children in elementary school that ours is a government of laws, not men, and that no man is above the law.  We teach our kids in high school that the government derives its just powers from the consent of the governed, and that rights are inherent and inalienable in the people, not something granted to us by our government.  We teach our soldiers in military school that an illegal order is null and void and not to be followed.  We teach everyone that even the most powerful people in the country do not have the power to break the law, or order others to do so.  These are fundamental American principles. 

Or so I thought.

Somehow, though, once you've been in the Senate for twenty years like Kit Bond has, you forget all this.  Or maybe you just say that all that lofty philosophizing is fine for children and soldiers, but we veteran lawmakers know it's all just wooly-headed window-dressing.

Under Bond's theory, "the government told me to do it" is a valid defense to breaking the law.  Or, to put a Nixonian spin on it, "if the President tells you to do it, then it is not illegal."  I find this to be a very frightening and un-American doctrine.  And what makes it even more galling, as Hunter points out, is that our Congresscritters are attempting to justify the abrogation of the rule of law with false claims, phony arguments, and appeals to fears of terrorism:

The glowing embrace of the right-wing and administration logic used to foist corporate immunity to lawbreaking upon us: President Bush is so terribly put upon that he cannot possibly follow existing law in conducting espionage against American citizens, and nobody should expect him to, so we must urgently change the law.

But FISA was not expiring. FISA was not falling into a legislative black hole. It continued to exist, as the exclusive means for electronic surveillance of the American people, and all it required was a warrant, and all the warrant required was probable cause. That's it. That's what this entire, months-long parade of panic, bluster and torn hair has been about, that it was just too damn difficult for the administration to be asked to show two sentences of probable cause to a judge in a secret hearing before collecting whatever electronic information about you, your neighbors, your family, your friends, everyone in your town, everyone in your social organizations, everyone in every restaurant you've ever been to, etc., etc., etc. they wanted to collect.

And if you object to it, then even Barack Obama will hold the threat of imminent Terror over your head as justification for why we should ignore past violations of Constitutional rights and declare a massive, flag-waving, star-spangled do over that simply declares there's no more problem.

*  *  *
I'm not sure which frightens me more, the thought that the people leading my nation could be so damn gullible, or the thought that they aren't -- but they're counting on us to be. If the Democrats are going to be so fired up about demanding that they be allowed cave on basic protections, lest the Republicans treat them cruelly in future elections, they could at least have the decency to not insult our intelligence while they're doing it.

Now: how can we proclaim what it means to be an American when the very foundation of our political philosophy has been so undermined by our own Congress?  Some folks, including the usually perspicacious John Cole, seem to think this is just politics, and hey, sometimes the compromise cards go your way and sometimes they don't.  But civil liberties, such as those guaranteed by the Fourth Amendment, are not subject to political dealmaking.  The rule of law is not something to be horsetraded in the House cloakrooms.  These are bedrock precepts of our very governmental system, not tax breaks to be swapped for highway construction.  Of course politics entails compromise--but if you'll compromise on anything, you have no principles.

Just like three-fourths of the House of Representatives.

Bravo Marcy

My Congresswoman, Marcy Kaptur, was one of the  who voted against giving warrantless eavesdropping authority to the government and retroactive immunity to lawbreaking telecommunications companies.  Kudos to her!  Here is a complete list of those who refused to gut the Fourth Amendment and the rule of law:

Abercrombie Allen Andrews Baldwin Becerra Blumenauer Brady (PA) Braley (IA) Capps Capuano Carnahan Carson Clarke Clay Cohen Conyers Costello Courtney Cummings Davis (CA) Davis (IL) DeFazio DeGette Delahunt DeLauro Dingell Doggett Doyle Edwards (MD) Ellison Eshoo Farr Fattah Filner Foster Frank (MA) Gonzalez Grijalva Hall (NY) Hare Hill Hinchey Hirono

Hodes Holt Honda Hooley Inslee Israel Jackson (IL) Jackson-Lee (TX) Jefferson Johnson (GA) Johnson (IL) Johnson, E. B. Jones (OH) Kagen Kaptur Kennedy Kilpatrick Kucinich Larsen (WA) Larson (CT) Lee Levin Lewis (GA) Loebsack Lofgren, Zoe Lynch Maloney (NY) Markey Matsui McCollum (MN) McDermott McGovern McNulty Meek (FL) Michaud Miller (NC) Miller, George Mollohan Moore (WI) Moran (VA) Murphy (CT) Nadler Napolitano

Neal (MA) Oberstar Obey Olver Pallone Pascrell Pastor Payne Price (NC) Rangel Rothman Roybal-Allard Ryan (OH) Sánchez, Linda T. Sanchez, Loretta Sarbanes Schakowsky Schwartz Scott (VA) Serrano Shea-Porter Slaughter Solis Speier Sutton Thompson (CA) Tierney Towns Tsongas Udall (NM) Van Hollen Velázquez Walz (MN) Wasserman Schultz Waters Watson Watt Waxman Weiner Welch (VT) Wexler Woolsey Wu

All Democrats except Timothy V. Johnson of the Fifth District of Illinois.  Pretty sad day for American democracy when only a quarter of the People's Assembly votes to uphold the Constitution.

House Votes to Kill Civil Liberties

Bad news: the telecomm immunity/warrantless spying bill cleared the House.  It wasn't even close.  Father Tyme is pretty mad about it:

These "things" who call themselves Democrats are worse than the dog-shit on the bottoms of your shoes; worse than the full ditch beneath an outhouse;maybe even worse than the Republicans themselves. At least we knew the Republicans were lying pieces of shit. These asses stabbed us and our country in the back...and for what?
*  *  *
Let's give a big round of applause to Nancy Pelosi and Steny Hoyer for showing us that kissing Bush's ass is more important than protecting the Rights of Americans.

Worse news: Barack Obama supports the bill:

"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people."

Either Obama has not actually read the bill or he is out to deliberately deceive people into believing that the bill "firmly re-establishes basic judicial oversight over all domestic surveillance."  As the ACLU's Caroline Fredrickson notes:

This bill allows for mass and untargeted surveillance of Americans’ communications. The court review is mere window-dressing – all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole – ‘exigent’ circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all.

All of this is enough for Atrios to bestow the coveted Wanker of the Day award on Senator Obama.

I was going to send Obama another $25 today; I think I'll send it to the ACLU instead.

The Situation is Dire

No.

No no no no no.

If this bill passes, civil liberties will be dead in this country:

After months of wrangling, Democratic and Republican leaders in Congress struck a deal on Thursday to overhaul the rules on the government’s wiretapping powers and provide what amounts to legal immunity to the phone companies that took part in President Bush’s warrantless eavesdropping program after the Sept. 11 attacks.

The deal, expanding the government’s powers in some key respects, would allow intelligence officials to use broad warrants to eavesdrop on foreign targets and conduct emergency wiretaps without court orders on American targets for a week if it is determined important national security information would be lost otherwise. If approved, as appears likely, it would be the most significant revision of surveillance law in 30 years.

The agreement would settle one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a federal district court determines that they received legitimate requests from the government directing their participation in the warrantless wiretapping operation.

As a properly outraged Glenn Greenwald puts it,

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.

One can only hope this is not a done deal, that enough members of Congress can still be mustered to stop the lawmaking branch of government from endorsing illegal behavior by the executive branch and some large telecommunication companies.  I myself just sent this to my Democratic Senator, Sherrod Brown:

Dear Senator Brown,

I have read with great concern about a so-called "compromise" bill on FISA that is making its way through congress, one that would allow the federal government to conduct warrantless eavesdropping on American citizens and which would grant telecommunications companies that spied on Americans immunity from lawsuits seeking to hold them accountable for their illegal actions.

I urge you in the strongest of terms to oppose this bill, to filibuster it, to use whatever procedural and tactical techniques at your disposal to prevent it from becoming law.

We do not need to surrender our freedoms to fight terrorists.  We should not endorse lawbreaking by corporations whose sole defense is that they were only following orders. 

I have watched in horror as Congress and the administration have done away with habeas corpus and otherwise chipped away at our hard-won civil liberties.  History teaches us that once taken away, such liberties are rarely restored.

Please, Senator Brown--stop this bill now.

And where is Barack Obama on this issue?  This is the time for him to speak out and rally his supporters against the destruction of privacy rights and the rule of law.

Worst

What are the worst Supreme Court decisions in the history of the country?

Scott v. Sanford, which upheld African American slavery?

Plessy v. Ferguson, which established the separate-but-equal doctrine?

Korematsu v. U.S., which OK'd internment camps for citizens of Japanese ancestry?

Bowers v. Hardwick, which approved the criminalization of sex between consenting adults?

Bush v. Gore, which usurped both voters' and states' rights to elect a President?

Tough to say.  But to these undistinguished examples of jurisprudence, John McCain would add Boumediene v. Bush, the recently-decided case that upheld Guantanamo detainees' right to habeas corpus:

John McCain weighed in on the U.S. Supreme Court decision on the rights of Guantanamo Bay prisoners to challenge their detention in U.S. courts at a town hall meeting Friday, calling the 5-4 decision “one of the worst decisions in the history of this country.”

Consider that for a moment.  This decision, which gives people who were scooped up by the military in the confusing wake of the ouster of the Taliban regime in Afghanistan the chance to be heard by a court and to challenge their summary designation as "enemy combatants."  It gives these people access to The Great Writ, the  legal procedure that has been the very cornerstone of Anglo-American civil liberties for the last 700 years.

To John McCain, though, that prospect is worse than permitting slavery, worse than racial separation, worse than interning people in camps based on their ancestry, worse than governmental intrusion into people's most intimate personal lives, worse than having a court pick a President.  That's how much the possibility that just maybe, in some cases, the government accidentally picked up innocent men along with the guilty, seems to derange him.

Wow.