Tag Archives: FISA

CA-36: Harman’s Magic Act

By a twist of fate, Jane Harman actually appeared at the AIPAC convention over the weekend, bringing full circle the recent controversy over her comments picked up on a wiretap offering help to get AIPAC staffers out of a Justice Department probe in exchange for help getting the Chair of the House Intelligence Committee.  She vowed to begin a crusade against illegal wiretapping and overreach from the surveillance state.

Harman has described the wiretap as an abuse of government power. But sources have told The Washington Post that she was not being surveilled; the tapped phone belonged to the suspected Israeli agent, who happened to talk to her.

“I will not quit on this until I am absolutely sure this can never happen to anyone else,” Harman told the AIPAC audience, which warmly applauded her. She said the incident was having “a chilling effect” on members of Congress who “care intensely about the U.S.-Israeli security relationship . . . and have every right to talk to advocacy groups.”

Later, she called herself a “warrior on behalf of our Constitution and against abuse of power”.  Which, coming from Harman, is utterly absurd, a magic act where she transforms herself from a vigorous defender of executive prerogatives on wiretapping to a civil liberties zealot who wants to take down the surveillance state.

Jane Harman is a warrior on behalf of the Constitution and against abuse of power — that’s the same Jane Harman who tried to bully The New York Times out of writing about Bush’s illegal spying program, who succeeded in pressuring them not to publish their story until after Bush was re-elected, who repeatedly proclaimed the program to be “legal and necessary” once it was revealed, who called the whistle-blowers “despicable”, who went on Meet the Press and expressed receptiveness to a criminal investigation of The New York Times for publishing the story, who led the way in supporting the Fourth-Amendment-gutting and safeguard-destroying FISA Amendments Act of 2008, and who demanded that telecoms be retroactively immunized for breaking multiple laws by allowing government spying on their customers without warrants of any kind.

That is who is a self-proclaimed “warrior on behalf of our Constitution and against abuse of power.”

As Atrios notes, Jane Harman is primarily concerned about wiretapping of People Named Jane Harman.  And her point that this represented a potential abuse of government power, which by the way is

entirely plausible, was the entire point of people like me when we decried an illegal wiretapping program that would be ripe for abuse.  You know, the one Jane Harman defended.

Worse, in the “Fact Sheet” Harman is sending around to supporters in the district, she characterizes herself as, among other things, a longtime critic of warrantless wiretapping in the most fantastical way possible:

• Harman has never supported so-called “warrantless wiretaps” on Americans.  “We must use all lawful tools to detect and disrupt the plans of our enemies; signals intelligence and the work of the NSA are vital to that mission.  But in doing so, it is also vital that we protect the American people’s constitutional rights.”  (Press release of Dec. 21, 2005 — four days after the President declassified the existence of the Terrorist Surveillance Program).  

• Harman introduced the LISTEN Act (H.R. 5371) with House Judiciary Committee Chairman John Conyers to add resources to the Justice Department to ensure the issuance of individualized warrants under FISA.  (Press release of May 11, 2006).

• Harman, Senator Obama, and Speaker Pelosi supported amendments to FISA to expand protections to US citizens, and give limited court-reviewed immunity to telecommunications firms that prove they relied in good faith on what they believed was a valid order to produce records.  (Vote date of June 20, 2008).

She must think we’re all idiots.  That vote of June 20, 2008, the amendments to FISA to “expand protections to US citizens,” in addition to providing retroactive immunity for the telecoms for breaking the law, actually granted sweeping new powers to the federal government, including the ability to “conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.”  The fact that this lack of oversight or judicial review could lead to abuses of surveillance power has been confirmed by reports that the NSA overstepped its legal authority to wiretap by intercepting the private emails and phone calls of Americans, problems which grew “out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers.”  The fact that Barack Obama supported that bill, considering that he was massively criticized by progressives for that FISA vote, doesn’t exactly help the cause.

Harman’s record on wiretapping is well-known and her efforts to wiggle out of it are frankly laughable.  And the rest of her record, as demonstrated by Swing State Project today, shows her to be among the top 20 Democrats voting less liberal than what their districts would support.  That, more than this hypocrisy on civil liberties, is why she’ll draw a primary challenge next year, should she choose to run again.

Jane Harman’s Complicity in Illegal Torture and Warrantless Spying Programs

As it concerns the reports of Harman possibly being nominated to a post in the intelligence apparatus, it’s very important for everyone to remember how complicit Jane Harman has been in illegal acts by the Bush administration in allowing detainee torture to take place and in trampling on our rights as American citizens.  Because of her history, there’s no way she should get any of these jobs. (follow below)

From Glenn Greenwald’s post from July:

In December of last year, The Washington Post revealed:

Four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

The article noted that other Democratic members who received briefings on the CIA’s interrogation program included Jay Rockefeller and Jane Harman. While Harman sent a letter to the CIA asking questions about the legality of the program, none ever took any steps to stop or even restrict the interrogation program in any way.

Identically, numerous key Democrats in Congress — including Rockefeller and Harman — were told that Bush had ordered the NSA to spy on American without warrants and outside of FISA. None of them did anything to stop it. In fact, while Rockefeller wrote a sad, hostage-like, handwritten letter to Dick Cheney in 2003 (which he sent to nobody else) — assuring Cheney that he would keep the letter locked away “to ensure that I have a record of this communication” — Harman was a vocal supporter of the illegal NSA program. Here’s what she told Time in January, 2006 in the wake of the NYT article revealing the NSA program:

Some key Democrats even defend it. Says California’s Jane Harman, ranking Democrat on the House Intelligence Committee: “I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities.”

Harman then went on Fox News and pronounced that the NSA program was “legal and necessary” and proudly said: “I support the program.” Even worse, in February, 2006, Harman went on “Meet the Press” and strongly suggested that the New York Times should be criminally prosecuted for having reported on the illegal program. And indeed, in 2004, Harman demanded that the NYT’s Eric Lichtblau not write about the NSA program. As Lichtblau wrote in his recent book about a 2004 conversation with Harman:

“You should not be talking about that here,” she scolded me in a whisper. “They don’t even know about that,” she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement. “The Times did the right thing by not publishing that story,” she continued. I wanted to understand her position. What intelligence capabilities would be lost by informing the public about something the terrorists already knew — namely, that the government was listening to them? I asked her. Harman wouldn’t bite. “This is a valuable program, and it would be compromised,’ she said. I tried to get into some of the details of the program and get a better understanding of why the administration asserted that it couldn’t be operated within the confines of the courts. Harman wouldn’t go there either. “This is a valuable program,” she repeated.

In light of this sordid history of active complicity, is it really any wonder that these leading Democrats are desperate to quash any investigations or judicial adjudications of Bush administration actions that they knew about and did nothing to stop, in some cases even actively supporting?

While I’d love to have the chance to replace Harman with a progressive Democrat in my solid blue 36th Congressional District here in California, I would gladly keep her as my congressional representative if that kept her from being in any of those positions of power over intelligence matters.  I think the most important thing first is to prevent her from getting named as DNI or CIA Director or DHS Chief.  That’s essential.  

CA-37: Richardson declared a “public nuisance” to Dems who don’t like being constantly embarrassed

Can you believe this?

First Rep. Laura Richardson was having problems making house payments, defaulting six times over eight years.

Then after a bank foreclosed on her Sacramento house and sold it at auction in May, the Long Beach Democrat made such a stink that Washington Mutual, in an unusual move, grabbed it back and returned it to her.

This week, in the latest chapter in the housing saga, the Code Enforcement Department in Sacramento declared her home a “public nuisance.”

The city has threatened to fine her as much as $5,000 a month if she doesn’t fix it up.

Neighbors in the upper-middle-class neighborhood complain that the sprinklers are never turned on and the grass and plants are dead or dying. The gate is broken, and windows are covered with brown paper.

“I would call it an eyesore,” said Peter Thomsen, a retired bank executive who lives nearby.

I think “embarrassing” is the best word for it.  Laura Richardson has no need or use for a home in Sacramento anymore, and in her letter to supporters trying to give an alibi for her recent conduct, she says that she isn’t rich and doesn’t have a second income to afford her lifestyle.  Then why the useless home in Sac’to that’s become decrepit?

If this was the only thing wrong with Richardson, it’d be enough, frankly.  But the fact that she voted to sink the Fourth Amendment and provide amnesty for lawbreaking to the telecoms in the FISA bill means that her votes are as embarrassing as her home upkeep.  It’s really unacceptable to have her as a representative of this state, honestly.

Feinstein’s Mukasey Debacle

Full disclosure: I work for the Courage Campaign

Today the New York Times reports on the continuing failure of the Michael Mukasey as Attorney General experiment. Back in November we at the Courage Campaign didn’t much like the notion of an Attorney General Mukasey, but Senator Dianne Feinstein strongly disagreed. She got a lot of pushback and defended her case in an LA Times OpEd that she might want back at this point given the way reality has actually played out. Let’s play point/counterpoint between Feinstein’s argument in November and the New York Times today:

Feinstein:

During a long career in public service and private practice, Michael B. Mukasey has forged an independent path as a lawyer and federal judge.

Sen. Arlen Specter:

“I don’t want to use the word ‘disappointed,’ but he hasn’t provided the balance that I had hoped for”

Feinstein:

Judge Mukasey is not Alberto R. Gonzales. In our confirmation hearings (and subsequently, in writing), Judge Mukasey’s answers to hundreds of questions were crisp and to the point, and reflected an independent mind.



The Justice Department is in desperate need of effective leadership. It is leaderless, and 10 of its top positions are vacant. Morale among U.S. attorneys needs to be restored, priorities reassessed and a new dynamic of independence from the White House established.

Sen. Patrick Leahy:

But Mr. Mukasey is “letting the worst excesses of the Gonzales era stand,” he continued, “and that disappoints me. It’s like saying, ‘I’m going to be a place holder,’ and this is a man who certainly has the ability to be something more than a place holder. He doesn’t want to rock the boat.”

Feinstein:

In the hearing, Judge Mukasey clearly expressed his personal repugnance regarding torture. And in a letter dated Oct. 30, he reiterated his personal views and described in detail the analysis he would undertake if confirmed.

NY Times (emphasis mine):

From fending off calls to investigate accusations of torture to resisting a nationwide strategy against mortgage fraud, Mr. Mukasey has taken a go-slow approach that has surprised even some admirers, who see him as unwilling to break from past policies and leave his own imprint in the closing months of the Bush administration.

Feinstein:

I do not believe a president can be above the law, and neither does Judge Mukasey. In addition, Judge Mukasey explained that his view on executive power is based on an analysis of the Supreme Court’s 1952 decision in Youngstown Sheet & Tube Co. vs. Sawyer. Justice Robert Jackson wrote in that decision that the president’s power is greatest when he is backed by statutory authority from Congress, and at its lowest ebb when his actions are in conflict with a statute.

NY Times (emphasis mine):

But perhaps his biggest accomplishment has been the expansion of the government’s wiretapping powers under a bill signed into law by President Bush this month. Mr. Mukasey had little active role in the day-to-day negotiations with Congress, Congressional officials said. But he and Mike McConnell, director of national intelligence, sent a series of sharply worded letters to lawmakers, keeping the pressure on them to update the surveillance law and provide legal immunity to the phone companies that took part in the eavesdropping program approved by Mr. Bush after the Sept. 11, 2001, attacks.

After a months-long impasse over the surveillance measure, administration officials hailed its passage. But critics saw it as a continuation of the status quo under Mr. Mukasey. “I think he was determined to sustain the administration’s position,” Mr. Specter said, rather than work to scale back the White House’s claims to executive power after the controversy caused by the domestic wiretapping program.

Essentially, Senator Feinstein’s entire argument has been refuted by Mukasey’s actual performance on the job. While she wasn’t the only one involved, her proactive work to confirm Mukasey has done a major disservice to the rule of law and health of the Constitution in this country. But if we needed any further evidence that Mukasey is actually nefarious as opposed to lazy or incompetent, look no further than the week he’s delivering to us right now. Mukasey has embarked upon a campaign to compel Congress to pass a law altering the Constitutional right of habeas corpus, overruling the courts and the intentions of the founding fathers while also conveniently covering up the abuses delivered by the Bush Administration at Guantanamo Bay. He isn’t just failing to fix the problem, he’s now neck deep in trying to cover it up. The Attorney General is the lawyer for the government, but the law itself is supposed to still come first. Mukasey is actively seeking to subvert the rule of law, and we have, in part, Senator Feinstein to thank.

Not to put too fine a point on it, but this is exactly what we’ve been talking about all along here at Courage. A fundamental breakdown of leadership. At the very least, she could admit it and try to push back. But instead, we get her rolling over on FISA, just like the anti-Constitution Mukasey told her to. This is not what California elected her to do.

Pelosi Passes the Buck; Gore Let Off the Hook at Netroots Nation

(I’m under a mountain of work, so I have a lot on Netroots Nation stored up, but this from our pal Paul about the Pelosi/Gore session is good.  And BTW, I asked the Iraq question. – promoted by David Dayen)

From today’s Beyond Chron.

It’s no surprise that House Speaker Nancy Pelosi got a tough reception at Netroots Nation – as bloggers asked about the Iraq War, impeachment and (of course) FISA.  Pelosi passed the buck on all of these issues – saying that she’s let House Judiciary Chair John Conyers handle executive contempt, blamed Senate Democrats for selling out on FISA and said that only electing Barack Obama will get us out of Iraq.  When Al Gore popped in to make a surprise appearance, the crowd gave a hero’s welcome to the ex-Vice President – posing a sharp contrast with Pelosi.  Bloggers cheered Gore’s ambitious environmental agenda to make the United States 100% free of fossil fuel energy by 2019.  But nobody bothered to ask Gore why he didn’t push for this 15 years ago when he could have done something about it.  Meanwhile, Pelosi’s excuses frustrated the audience – but they each have an element of truth to them.  On the other hand, if Pelosi says she “doesn’t have the votes” in Congress to get what we want, she should start being more supportive of primary challenges that bloggers wage against bad Democrats.

“God bless the impatience of youth,” said Pelosi as she kicked off the Convention’s main event on Saturday morning.  “That’s what gives me hope.  I share your frustration in not ending this War.  We need to be persistent, relentless and unsatisfied at pushing us to where we should be.  And there are only 107 days until the Election.”

Everyone expected Pelosi would get a tough crowd, and about half a dozen demonstrators from Code Pink were there to heckle her about the War.  But liberal bloggers aren’t about direct-action street-level theater, preferring the tactic of asking hard-hitting questions that put politicians on the spot.  Gina Cooper of Netroots Nation even warned attendees at the beginning that anyone who disrupted the forum would be ejected, and the crowd cheered.

At the forum, Pelosi was asked questions like: (a) is impeachment back on the table?; (b) if Karl Rove is still in contempt of Congress, will he be arrested?; (c) if the FISA bill was a compromise, what was the gain? and (d) why hasn’t Congress ended the War?

For the most part, Pelosi passed the buck – saying that she agreed with the frustration of bloggers, but blamed others for why no action has been taken.  On the first two points, she deferred to House Judiciary Chairman John Conyers – who is leading investigations of the Bush Administration.  “We passed a resolution of contempt on the House floor,” she said, “and I’m proud that we got every Democrat to vote for it.  But Mr. Conyers is in charge of the investigation, and we’re in good hands with him.”

On FISA, Pelosi blamed the Senate – where 17 Democrats voted with all the Republicans – for sending them a bad bill.  “Our options were limited,” she said.  “It was a moment of taint.  Was the final bill [which passed both houses] a bill that I would have written?  No.  Was it better than the Senate version that had passed?  Yes.”

Pelosi added that as House Speaker she has only had “two major regrets”: (a) the Senate version of the FISA bill that they had to work with, and (b) failing to get 60 votes in the Senate to end the Iraq War.  Later on in the forum, she added that the only way to end the War will be to elect President Barack Obama.  Eventually, moderator Gina Cooper turned to Pelosi and said what was on a lot of peoples’ minds: “it sounds like some of your colleagues must get with the program with the American people.”

There’s certainly truth to what Pelosi said: any effort to impeach Bush or Cheney will start at the Judiciary Committee, Democrats have a razor-thin majority in the Senate, and even voting to defund the War won’t end it until a Democratic President brings the troops home.  But while Pelosi says she is on our side, one conclusion we can draw is that she hasn’t kept her colleagues in line.  The netroots have always tried to hold bad Democrats accountable – and in recent years have waged primary challenges against entrenched incumbents who vote the wrong way on issues.  The bloggers could work with Pelosi.

But Pelosi has not generally supported these challengers, actively working against the netroots.  For example, Pelosi held a fundraiser for Congressman Al Wynn – while he was getting a primary challenge from netroots favorite Donna Edwards.  Edwards won that election, and attended Netroots Nation as a newly minted Congresswoman.  In what must have been an awkward moment, Pelosi acknowledged Edwards at the beginning of the forum.

It wasn’t the first time that a powerful Democrat came to a netroots Convention and faced a tough audience.  But unlike Hillary Clinton (who at last year’s Yearly Kos sarcastically mocked the crowd when they booed her), Pelosi kept her grace while saying much of what the bloggers didn’t agree with.  Whatever you think of her answers, she did not condescend.

While bloggers gave Pelosi a chilly reception, they enthusiastically cheered former Vice President Al Gore – who made a surprise appearance during Pelosi’s forum.  “We have a historic climate crisis,” said Gore.  “It’s connected to an economic crisis, and the national security threat it creates. Drilling oil we won’t use for 15 years to deal with gas prices now is like responding to an attack from Afghanistan by invading another country.”

Gore has always been a sentimental favorite of the netroots (“I feel right at home here,” he said), and the crowd eagerly responded to his challenge to eliminate fossil fuel dependency by 2019.  “I need your help,” he said. “You seek to influence, and I respectfully ask for your help.”  And with only 11 years to get there, we don’t have much time.

But nobody asked the former Vice President why he didn’t agitate on these issues in the mid-1990’s, when he was in a position to get things done.  If we had started this 15 years ago, eliminating fossil fuel dependency would be far more doable.  No doubt Gore is now using his “elder statesman” role to fight global warming – but the Clinton-Gore Administration was lackluster in responding to this climate crisis, such as reneging on their pledge to shut down an incinerator in East Liverpool, Ohio.  When Gore ran for President in 2000, Friends of the Earth endorsed Bill Bradley in the Democratic primaries.

If the netroots insisted on giving Nancy Pelosi a hard time, why didn’t they challenge Gore as well?

Sen. Obama, FISA, and the Solidifying Left.

Over at the Wall Street Journal, they want to talk about what the media narrative of the day: Obama Buyer’s Remorse from the Left. But here at the actual convention, there is quite a bit of enthusiasm here.  Perhaps people can be disappointed in their candidate without abandoning hope? Well, not if the media has anything to say about it.

Sen. Barack Obama‘s support of a recent overhaul of domestic spy laws that rankled many on the left still has them rankled if the opening session at the annual Netroots Nation convention taking place in Austin, Texas, is any indication. (WSJ 7/17)

Matt Stoller responds to this general argument of “Buyer’s remorse” at OpenLeft

At any rate, the whining from DC pundits about how the left was undermining Obama’s chances at winning was absolutely wrong.  His small dollar donor army wants him in that White House, and they are going to pay to put him there.  While it’s often impossible for consultants in DC to keep multiple thoughts in their head, it is possible for most of us normal bluggers and blug readers to get that we don’t like his vote on FISA but we want him to win the White House desperately anyway.

The small dollar donors and the netroots folks here in Austin can walk AND chew gum. It’s really quite amazing. That was seen in California in the latest Field Poll where Sen. Obama solidified the left despite FISA and the surrounding hubub.

FISA is important, yet it is not the only important item. Wow, who knew?

Amazing results on Feinstein censure vote



Full disclosure: I work for the Courage Campaign

There’s a lot of talk this year about more and better Democrats. Generally the “and better” part means primary campaigns and being selective in the candidates that we support with time, money and cyber ink. The other side of that is holding our representatives accountable in ways outside the ballot box, because sometimes we can’t just wait for re-election to get responsive representation; too much happens. It’s not always easy to find effective ways to get attention and movement, but passion and creativity can be combined into a potent mix.

Last week Senator Dianne Feinstein voted to give away our 4th Amendment privacy protections and grant retroactive immunity to the telecom companies who may have been illegally complicit in domestic spying on U.S. citizens. It was hardly the first time that Sen. Feinstein has given us reason for serious concern. Once before, her support of previous iterations of FISA legislation, Judge Leslie Southwick and now-Attorney General Mukasey inspired us to insist she pay attention to Californians. We asked you whether it was time to pursue censure again, and more than 12,000 of you responded with a clear message.

Rick Jacobs sent an email this morning running through the results, explaining where we go from here, and asking you to help:

The results are in.

Over 12,000 Californians voted on one of the most important questions we have ever asked our community: whether or not the Courage Campaign should re-launch a censure resolution against Senator Dianne Feinstein at the next meeting of the California Democratic Party.

And here’s the answer:

95.4 percent (11,524 people) voted YES.

4.6 percent (556 people) voted NO.

The consensus of our Courage Campaign community is crystal clear: we should push to censure the Senator.

And, driven by your mandate to take action, that is exactly what we’re going to do. From her FISA votes supporting telecom immunity to her shocking swing votes confirming Bush nominees Michael Mukasey and Leslie Southwick, enough is enough.

For this people-powered “Censure the Senator” movement to succeed, we need your support before the California Democratic Party (CDP) executive board meets again. To hold Sen. Feinstein accountable, it will take money to organize people. It’s as simple as that.

If you support pushing to censure the Senator, please contribute $20, $50, $100 or more now to launch our campaign for change within the Democratic Party immediately. If just 500 people contribute $10 (or more) ASAP, we can hire a grassroots organizer and get started now:

http://www.couragecampaign.org/CensureMovement

For far too long, we’ve watched as congressional Democrats — the party in power — have failed to hold President Bush accountable for torture, war and warrantless wiretapping. 95.4% of our members and supporters say that it’s got to stop. As Annie from San Francisco wrote to us, in voting YES to censure:

We have to (censure Sen. Feinstein). It’s hard to have to call out our politicians on so many issues and votes, but they keep disappointing us over and over again. We can’t let these votes go unprotested.

That’s what a “censure” is — a protest. As Wikipedia describes it, censure is “a procedure for publicly reprimanding a public official for inappropriate behavior.”

Other than voting in an election, a public censure is also our only recourse as citizens to express our condemnation of Sen. Feinstein’s votes last week to grant retroactive immunity to the Bush Administration and telecom companies for spying on Americans.

With Sen. Feinstein’s double failure on FISA, it’s time to take this accountability movement to the next level. Please contribute $20, $50, $100 — or whatever you can afford — to launch our campaign for change within the Democratic Party immediately:

http://www.couragecampaign.org/CensureMovement

Last year, Sen. Feinstein was also the crucial swing vote on the Judiciary Committee to confirm two extremist Bush appointments — a torture-condoning Attorney General and a racist judge (Michael Mukasey and Leslie Southwick).

Those two Judiciary Committee swing votes mobilized 35,039 Californians — in just one week — to co-sign a censure resolution supported by the Courage Campaign, MoveOn, Progressive Democrats of America and 38 Democratic Clubs across California.

A few days later, at the Executive Board meeting of the California Democratic Party, both the Women’s Caucus and Progressive Caucus passed the censure resolution — an unprecedented and historic action inside the party. Unfortunately, the resolution got bottled up in the Resolutions Committee and was ultimately voted down.

If we’re going to build a movement in California for accountability inside the Democratic Party, it starts by taking on Dianne Feinstein. Can you contribute $20, $50, $100 or more to launch our “Censure the Senator” campaign before the CDP meets again?

http://www.couragecampaign.org/CensureMovement

Thank you for doing everything in your power to make 2008 a new era for progressive politics in California.

Rick Jacobs

Chair

P.S.  Frankly, a censure resolution is merely a piece of paper unless there’s a people-powered movement behind it. That’s why your contribution to our “Censure the Senator” campaign will be an investment in changing the Democratic Party in California and across the country.

It’s up to you. Please contribute what you can — even $20, the price of a movie, popcorn and a soda — and then forward this email to your friends:

http://www.couragecampaign.org/CensureMovement

On The Weird Twists Of History, Part Two, Or, Why We Have A Fourth Amendment


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Those who are coming to this story today have jumped into the middle of quite a tale. I put myself in a tough position last time by promising to link a British “garden of lust”, Benjamin Franklin, and 18th Century bloggers into a narrative that concludes with the nascent United States of America and its shiny new Fourth Amendment.

So far, amazingly enough, I’m pulling it off.

If you need to catch up, here’s what’s been going on:

When last we met…it was in a world of scandal and intrigue; with King George III and the Earl of Bute (and of course, their assorted minions) very upset with John Entick, author, and John Wilkes, author and world-class raconteur (and drinking buddy to Franklin), because they had the temerity to…well, blog.

The Earl of Bute had taken so much abuse from the Johns that he had been forced to resign from his position as Prime Minister…leaving the minions under his control, many said, only now from behind the scenes.

Something needed to be done…and when you have minions, you put them to use.

In 1762, as the influence of “The Monitor” continued to grow, George Montague Dunk, the Second Earl of Halifax (and a member of the Privy Council) and the highest ranking minion available, issued the King’s Chief Messenger, Nathan Carrington, a general search warrant ordering him to:

“…make strict and diligent search for [Entick], mentioned in the said warrant to be the author, or one concerned in the writing of several weekly very seditious papers intitled, “The Monitor or British Freeholder, No 357, 358, 360, 373, 376, 378, and 380, London, printed to J. Wilson and J. Fell in Paternoster Row,” containing gross and scandalous reflections and invectives upon his majesty’s government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring together with his books and papers in safe custody before the earl of Halifax to be examined concerning the premisses, and further dealt with according to law…”

–From the report of Entick v. Carrington, 19 Howell’s State Trials 1030 (1765)

A four hour search was conducted of Entick’s home, and all his books and papers were carried away to be examined in an effort to prove that the charges of seditious libel (essentially, speaking out against the King) were valid.

In what has become one of the most important trials in British legal history-and ours-John Entick sued the messenger, literally, claiming that any general search warrant is inherently invalid, that Carrington should have known this, and that Carrington never should have relied upon the authority of Lord Halifax to permit the search.

If Entick had been trespassed upon, then the papers seized were inadmissible; and that meant Entick could not be convicted of seditious libel. Here’s how Entick’s lawyer put it, again according to Howell’s:

“…As to the second. A power to issue such a [general] warrant as this is contrary to the genius of the law of England; and even if they had found what they searched for, they could not have justified under it. But they did not find what they searched for, nor does it appear that the plaintiff was the author of any of the supposed seditious papers mentioned in the warrant; so that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise.

But the verdict says, such warrants have been granted by secretaries of state ever since the Revolution. If they have, it is high time to put an end to them; for if they are held to be legal, the liberty of this country is at an end. It is the publishing of a libel which is the crime, and not the having of it locked up in a private drawer in a man’s study. But if having it in one’s custody was the crime, no power can lawfully break into a man’s house and study to search for evidence against him. This would be worse than the Spanish inquisition; for ransacking a man’s secret drawers and boxes, to come at evidence against him, is like racking his body to come at his secret thoughts…

… But it is said, if the secretary of state has power to commit, he has power to search, etc. as in the case of stolen goods. This is a false consequence, and it might as well be said he has a power to torture.”

We need to take a moment to discuss the meaning of a general warrant-and all of a sudden we get to the part where our very own Fourth Amendment enters the story. Rather than tackling the legal issue myself, I’ll quote from the United States Supreme Court’s ruling in Stanford v. Texas, 379 U.S. 476 (1965), a seized books case:

“…The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid – a general warrant…

The Fourth Amendment provides that “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.”

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever “be secure in their persons, houses, papers, and effects” from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.

The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.”

The historic occasion of that denunciation, in 1761 at Boston, has been characterized as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,’ said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'”

What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or…the arrest and seizure of all the papers of a named person thought to be connected with a libel

Two centuries have passed since the historic decision in Entick v. Carrington, almost to the very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant – no less than the law 200 years ago shielded John Entick from the messengers of the King.”

In 1762, as the influence of “The Monitor” continued to grow, George Montague Dunk, the Second Earl of Halifax (and a member of the Privy Council) and the highest ranking minion available, issued the King’s Chief Messenger, Nathan Carrington, a general search warrant ordering him to:

“…make strict and diligent search for [Entick], mentioned in the said warrant to be the author, or one concerned in the writing of several weekly very seditious papers intitled, “The Monitor or British Freeholder, No 357, 358, 360, 373, 376, 378, and 380, London, printed to J. Wilson and J. Fell in Paternoster Row,” containing gross and scandalous reflections and invectives upon his majesty’s government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring together with his books and papers in safe custody before the earl of Halifax to be examined concerning the premisses, and further dealt with according to law…”

–From the report of Entick v. Carrington, 19 Howell’s State Trials 1030 (1765)

A four hour search was conducted of Entick’s home, and all his books and papers were carried away to be examined in an effort to prove that the charges of seditious libel (essentially, speaking out against the King) were valid.

In what has become one of the most important trials in British legal history-and ours-John Entick sued the messenger, literally, claiming that any general search warrant is inherently invalid, that Carrington should have known this, and that Carrington never should have relied upon the authority of Lord Halifax to permit the search.

If Entick had been trespassed upon, then the papers seized were inadmissible; and that meant Entick could not be convicted of seditious libel. Here’s how Entick’s lawyer put it, again according to Howell’s:

“…As to the second. A power to issue such a [general] warrant as this is contrary to the genius of the law of England; and even if they had found what they searched for, they could not have justified under it. But they did not find what they searched for, nor does it appear that the plaintiff was the author of any of the supposed seditious papers mentioned in the warrant; so that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise.

But the verdict says, such warrants have been granted by secretaries of state ever since the Revolution. If they have, it is high time to put an end to them; for if they are held to be legal, the liberty of this country is at an end. It is the publishing of a libel which is the crime, and not the having of it locked up in a private drawer in a man’s study. But if having it in one’s custody was the crime, no power can lawfully break into a man’s house and study to search for evidence against him. This would be worse than the Spanish inquisition; for ransacking a man’s secret drawers and boxes, to come at evidence against him, is like racking his body to come at his secret thoughts…

… But it is said, if the secretary of state has power to commit, he has power to search, etc. as in the case of stolen goods. This is a false consequence, and it might as well be said he has a power to torture.”

We need to take a moment to discuss the meaning of a general warrant-and all of a sudden we get to the part where our very own Fourth Amendment enters the story. Rather than tackling the legal issue myself, I’ll quote from the United States Supreme Court’s ruling in Stanford v. Texas, 379 U.S. 476 (1965), a seized books case:

“…The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid – a general warrant…

The Fourth Amendment provides that “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.”

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever “be secure in their persons, houses, papers, and effects” from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.

The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.”

The historic occasion of that denunciation, in 1761 at Boston, has been characterized as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,’ said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'”

What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or…the arrest and seizure of all the papers of a named person thought to be connected with a libel

Two centuries have passed since the historic decision in Entick v. Carrington, almost to the very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant – no less than the law 200 years ago shielded John Entick from the messengers of the King.”

And in fact Carrington did lose the lawsuit to Entick. This, from the ruling in Entick v Carrington, 95 Eng. Rep. 807 K.B. (1765):

“…our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the (Glorious) Revolution (of 1688), and if that would have justified them they have not averred it in their plea, so it could not be put, nor was in issue at the trial; we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have…

… The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole…By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him….”

So Entick won.

But what about Wilkes?

Well, the “triple headed, Cerebrean” Government Wilkes referenced in “The North Briton” No. 45 prosecuted him for seditious libel as well, using another general search warrant to effect the seizure of evidence.

Wilkes was able to prevail at trial by invoking his Parliamentary immunity from arrest on libel charges. Quoting Wilkes, describing the still-upcoming trial:

[The case will] “teach ministers of arbitrary principles, that the liberty of an English subject is not to be sported away with impunity, in this cruel and despotic manner…[and also] “determine at once whether English liberty be a reality or a shadow.”

Then Wilkes returned the favor-figuratively “suing the messenger” in the second of our illegal warrant blockbusters, Wilkes v. Wood, 98 Eng. Rep. 489 (1763)

.

In fact, he’s the one who sued first…and based on the events of his trial, Entick filed the lawsuit against Carrington that we just discussed. A few words from the report of the trial:

“…Serjeant Glynn [defense counsel], then enlarged fully, on the particular circumstances of the case, but remarked that the case extended far beyond Mr. Wilkes personally, that it touched the liberty of every subject of this country, and if found to be legal, would shake that most precious inheritance of Englishmen. In vain has our house been declared, by the law, our asylum and defence, if it is capable of being entered, upon any frivolous or no pretence at all, by a Secretary of State…

That of all offences that of a seizure of papers was the least capable of reparation; that, for other offences, an acknowledgement might make amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made. That the law never admits of a general search-warrant. That in France, or Spain, even in the Inquisition itself, they never delegate all infinite power to search, and that no magistrate is capable of delegating any such power…”

And a few words from the Lord Chief Justice in his verdict:

“…When we consider the persons concerned in this affair, it ceases to be an outrage to Mr. Wilkes personally, it is an outrage to the constitution itself…

Secretary Williamson, in Charles the Second’s time, for backing an illegal warrant, was sent to the Tower by the House of Commons. The jury, he observed, had no such power to commit; he knew it well; but, for his part, he wished they had, as he was persuaded they would exercise it, in the present case, as it ought to be…”

The Government response to their defeat?

To prosecute Wilkes for a very, very naughty joke indeed.

It turns out that back in the crazy Monks of Medmenham days Wilkes…apparently…co-authored an exceptionally ribald book called “An Essay on Woman“, a parody of Alexander Pope’s “Essay on Man“…and here was a chance to strike back at Wilkes…if only the annoying immunity thing wasn’t in the way.

So he was promptly thrown out of Parliament, and then charged with blasphemous libel. He immediately fled the country, spending four years in exile.

Now here’s the good part: Wilkes decided to return, because, despite his outlaw status, he had been elected to Parliament (again) in April 1768. He was the subject of riots in the nights following his surrender; and it is reported that 11 persons were killed as a result of the public outcry over his imprisonment. (Matter of fact, it’s also reported that the anger over the issues surrounding Wilkes’ arrest was so profound that it reached across the Atlantic…so profound that the cities of Wilkes-Barre, Pa., and Wilkesboro, N.C. bear his name.)

A political party, the Wilkites, had sprung up…and so had the Government’s anger over Wilkes’ status, which led to his second expulsion from Parliament, on February 3, 1769. On February 16th, he was reelected-and expelled the next day. Exactly one month later…the voters did it again-and so did Parliament.

The score so far?

The British Parliament, 3; The British Voters, 0.

Round four again went to Wilkes, again temporarily-this time by a vote of 1,143 to 296.

In a move reminiscent of the 2000 US Presidential election, Parliament promptly awarded the seat to Wilkes’ opponent, Colonel Henry Lawes Luttrell.

All the while he was still in prison…and while still in prison he was elected an Alderman of London…then he was released…then, ironically, elected Sheriff…then, in 1774, in a move Ken Livingstone could surely appreciate, he was elected Lord Mayor of London-and then finally (fifth time’s the charm!) he was returned to Parliament….and this time they let him stay, which he did for another 16 years.

So remember, roughly 3500 words ago, when I said in Part One that I could draw a direct line between all of this and the FISA debate today and its impact on the Fourth Amendment?

Well, I’m not going to do it.

Instead, I’ll again let the United States Supreme Court address the question, which they do with great eloquence in Stanford v Texas:

“…As MR. JUSTICE DOUGLAS has put it, “The commands of our First Amendment…(as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but `conscience and human dignity and freedom of expression as well…

In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the “things to be seized” is to be accorded the most scrupulous exactitude when the “things” are books, and the basis for their seizure is the ideas which they contain…No less a standard could be faithful to First Amendment freedoms.

The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case…”

And that’s the crux of the argument over the FISA compromise.

Should the protection of freedom from warrantless wiretapping “be accorded the most scrupulous exactitude when the “things” are”…not books, but communications?

When we see how wide a net the warrantless wiretapping program cast, does it teach us a lesson about the “constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant”?

And of course, when the Fourth Amendment is endangered, can the First or the Fifth be safe?

Well, it’s been a long journey, Gentle Reader…but we are at the end.

We began this trip in a garden of lust…then we met two 18th Century bloggers…we found ourselves caught up in the struggle over general warrants (which sound mighty familiar in the “warrantless wiretap” context)…and then two extremely important trials…and then the connection between the names of some of our cities and Wilkes…and finally, as I promised, we drew a straight line between the distrust of an overly intrusive Government and our own demands for freedom…which are today again under attack.

The circle has been closed, and with that, I bid you good day.

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On The Weird Twists Of History, Part One, Or, Why We Have A Fourth Amendment

This may be one of the strangest tales I have ever brought to the table, Gentle Reader, and yet one of the most fundamental in describing the birth of our Bill of Rights…and most especially the Fourth Amendment.

As many of you know, the new FISA compromise may or may not allow warrantless wiretapping of American citizens on a wholesale scale.

Something you may not know is that a similar debate raged in England (centered around the right of Government to seize the papers of whomever they chose, and use the papers as evidence against those persons) during the reign of King George III-or that it involved scandalous sexual behavior, Benjamin Franklin, the 18th Century version of blogging, and two men who decided to take on the corruption of the Crown…and won.

And because of all that, we have a Fourth Amendment today.

Ready for a tale of liberty and ribaldry?

Then let’s plunge right in, shall we?

So you live in 18th century England, you’re rich…and kind of bored.

What is a gentleman to do?

Well as it turns out, one option is to buy an old monastery, expand the cave system underneath, open yourself a well-appointed “garden of lust” with a really cool Latin motto (“Fay Ce Qve Vovdras”…”Do As You Will”), and invite a few of the most powerful men in England…and the Colonies…to join you in heavy drinking and crazy escapades that involve, to give just one example, shipping in prostitutes from London dressed up as nuns for an evening’s entertainment.

Which is exactly what Sir Francis Dashwood did in the village of West Wycombe; just six miles north of London by way of the River Thames.

It was a fabulous situation…the Abbey was secluded, on top of a hill, and shrouded by a grove of trees. The only access to the caves was by boat-and that meant it was possible to hop on a boat in London…and hop off, at the caves, unobserved…and then later, still unobserved, head back home, polite society none the wiser.

The “Monks of Medmenham”, as the group’s members called themselves (they did not call themselves “The Hellfire Club”, legends notwithstanding), did indeed include some of the most important of the English landed gentry (and, it was rumored, some of their wives…): including the Earl of Sandwich, Benjamin Franklin, and the man who will be one of the two focal points of today’s discussion, John Wilkes.

But the thing is, eventually all that romping gets a bit old; and a gentleman again finds himself with time on his hands…

Wilkes was a man with political ambition, and so he set about bribing the local voters to obtain a seat in Parliament…only to find his party tossed out of leadership and into the role of the opposition-which turned out to be perfect for somebody inclined to this sort of humor:

When the Earl of Sandwich, a sometime friend, told him that “you will die either on the gallows, or of the pox,” Wilkes said, “That must depend on whether I embrace your lordship’s principles or your mistress.”

–Jack Lynch, from the article “Wilkes, Liberty, and Number 45

To take the story further we need to know that King George III (who saw “The Madness of King George“?) chose as his Prime Minister his former “finishing tutor”, John Stuart, the Earl of Bute. The new Earl had quite a personal history of his own; in fact there were questions as to whether the new King’s mother and the new Earl had a personal history of their own.

Another item of shared personal history: the new Earl and Wilkes were both members of the Monks of Medmenham.

The Earl of Bute had a problem getting his program through Parliament, and to overcome his inability to “talk up” his ideas (some suggest he experienced antipathy because he was a Scot…something Gordon Brown might well understand) he published “The Briton“, a newspaper published in London…which saw Wilkes answer with “The North Briton“, which, in a time and place that had no free press, began its very first issue of June 5, 1762,  thusly:

The liberty of the press is the birth-right of a Briton, and is justly esteemed the firmest bulwark of the liberties of this country. It has been the terror of all bad ministers; for their dark and dangerous designs, or their weakness, inability, and duplicity, have thus been detected and threwn to the public, generally in too strong and just colours for them long to bear up against the odium of mankind. Can we then be surpriz’d that so various and infinite arts have been employed, at one time entirely to cast aside, at another to take off the force, and blunt the edge, of this most sacred weapon, given for the defence of truth and liberty?

This shot across the bow having been fired; Wilkes proceeded to lay 44 more broadsides into the hull of Government, including this quote from the final “The North Briton”, No. 45, in reference to the Earl’s resignation from Government, and the rumors that he still pulled the strings from behind the scenes:

The Scottish minister has indeed retired. Is his influence at an end? Or does he still govern by the three wretched tools of his power, who to their indelible infamy, have supported the most odious of his measures, the late ignominious Peace, and the wicked extension of the arbitrary mode of Excise? The North Briton has been steady in his opposition to a single, insolent, incapable, despotic minister, and is equally ready, in the service of his country, to combat the triple-headed, Cerberean administration, if the Scot is to assume that motley form.

You cannot talk about the Government in this way without consequences, and…well, we’ll come back to that in a minute.

Before we do, I want you to meet John Entick. Entick began his professional career as a schoolmaster, then an author. He had a bit of an eclectic taste-his first book being a Latin grammar, then a book on theology…and in an ironic twist, he at one point tried to publish an edition of Chaucer. He was also famous for his dictionary.

Entick was as upset by the political situation as Wilkes, and he found his voice in “The Monitor, or the British Freeholder“, which was where he wrote this:

…Now, although he allows, that “These Mixed constitutions [as opposed to absolute monarchy] are the very best, that human wisdom could ever discover for the regulation of human societies; yet that these, though perhaps productive of fewer evils, than either of the other, must necessarily partake of the evils belonging to both, and be supported by more or less violence, as they more or less approach the despotic; or of corruption, as they come nearer to the democratic principles: for corruption must always increase in due proportion to the decrease of arbitrary power; since where there is less power to command obedience, there must be more bribery to purchase it, or there can be no government at all…”

You’ll recall my saying that there would be consequences for selling this sort of thing in King George’s and the Earl of Bute’s England, and here’s where we start getting to the heart of the story.

But not today.

Instead, in a development worthy of Luke and Laura, we’re employing the cliffhanger…so come back in about 36 hours, and we’ll have the King’s messengers roaming the countryside, a spectacular trial or two-and a guy who gets elected to Parliament from his jail cell four times in four months.

And of course, when it’s all over…the United States will have a Fourth Amendment.

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Feinstein’s Epic FAIL

As bad a week as it’s been for John McCain, it’s been a TERRIBLE week for Dianne Feinstein.  She watched in the Senate Judiciary Committee as Attorney General Michael Mukasey, who she voted to confirm, put on as bad a performance as Alberto Gonzales ever did, covering for the Administration’s criminal actions, from torture to politicization of the Justice Department.  Then, of course, there was the FISA vote, where she bowed to President Bush and voted to participate in a coverup.  Despite this public statement just two weeks before the vote:

I believe the court should not grant immunity without looking into the legality of the companies’ actions. So if there is an amendment that does support this, I would intend to vote for it.

When it came down to voting on precisely that amendment, she weaseled her way out of it.

Amendment Number: S.Amdt. 5059 to H.R. 6304 (Foreign Intelligence Surveillance Act of 1978)

Statement of Purpose: To limit retroactive immunity for providing assistance to the United States to instances in which a Federal court determines the assistance was provided in connection with an intelligence activity that was constitutional.

Feinstein (D-CA), Nay

And of course, she voted against stripping immunity, for cloture, and for the final bill.

Then there’s this water bond which is more of a true compromise for DiFi, but still includes funds for building dams, and ignores unspent water funds from a 2006 bond issue.  So the idea is to borrow on top of the borrowing.

Courage Campaign is considering whether or not to push censure, but CREDO Action isn’t waiting to voice their displeasure.  From an email:

On July 9th, sixty-nine senators voted to gut the Bill of Rights. They voted to hand President Bush the power to spy on Americans without warrants, and to grant retroactive immunity to the telecoms who allegedly helped him break the law in the past.

No wonder the Associated Press headline following the bill’s passage read, “Senate bows to Bush.”

So why does a president with the lowest approval ratings since the advent of polling have the power to eviscerate the Constitution?

Because Sen. Feinstein gave it to him.

We can’t undo what our senators have done. But we can tell them that we can’t believe they’d rather protect President Bush and his law-breaking cronies than the civil liberties of all Americans.

Click here to tell Sen. Feinstein that you are watching, that you are disappointed, and that you won’t sit idly by while our Congress destroys our Constitution.

After you sign the petition, please be sure to tell a few friends.

It’s really the establishment mindset, afraid of being labeled weak and then bowing to the opposition party’s demands, and not recognizing the irony, that must be stopped.  And there’s no greater symbol of that mindset than DiFi.

UPDATE: (Bob)  With rumors swirling that a Federal Grand Jury is poised to indict Don Perata, this has also the week that Perata has been telling anyone who will listening that the FBI investigation is a political witch hunt. Which, if true, means DiFi’s infamous statement that he, “is not Alberto Gonzalez” in announcing her support for Mukasey’s confirmation looks all the more ridiculous. Perata defenders like Roger Salazar and Jason Kinney and Bob Mulholland can use the above link to cast their votes to hold Feinstein accountable. Interestingly, Mukasey’s confirmation blunder was cited specifically in the previous censure push when Art Torres put his credibility on the line defending her. And this week DiFi undermined that credibility with retroactive immunity caving at the same time CDP credibility was threatened with the Perata handout which rationalizers say was necessary because of Mukasey. Accountability matters.