I had the opportunity to speak with CA-04 candidate Charlie Brown about the awful FISA bill that wormed its way through the House on Friday.  Unlike Steny Hoyer and practically everyone else in the House, Brown has actually gathered intelligence in his career.  He served two rotations in Saudi Arabia, coordinating surveillance flights over the No Fly Zone in Iraq.  So he has an understanding of how intelligence is collected and what ought to be done when such collection results in information gleaned from Americans.

As soon as I brought up the FISA bill, Brown sighed.  He said there was no way he could support the bill that was passed in the House, and he in particular cited the telecom immunity aspect for a variety of reasons.  “When I was gathering intelligence, if I ever picked up information outside what was authorized, I would have to flag the tape and immediately deliver it to my commanding officer for destruction,” he said.  “If I didn’t, I’d be sitting at Leavenworth.”  To treat the phone companies in a different way that he would have been personally treated seems unfathomable.  Brown’s main argument is that the world is a dangerous place and foreign surveillance within the law is sometimes warranted.  But the precedent of giving phone companies a free pass after the President supplies them with a piece of paper allowing them to break the law is quite dangerous.  “This is exactly what happened in 1973.  In the Vietnam War, Lyndon Johnson lied about the Gulf of Tonkin incident as a pretext to get us into that war, and the resolution passed was misused to escalate that conflict without the control of Congress.  in 1973 Congress reasserted itself and passed the War Powers Act to ensure that never again could the executive go to war without expressed approval of the legislative body.  And that was ignored for the next 35 years.”  Passing a FISA bill that is the “exclusive” means for electronic surveillance is part of the same deception.  Laws don’t need to be reasserted, they need to be enforced.

Brown was concerned that we seem to continue granting immunity to the wrong people, and not just the telecoms.  We bail out Bear Stearns but not individual homeowners.  We throw individual privates in jail for Abu Ghraib but never go up the chain of command.  “There is an accountability problem in Washington, DC,” as Brown put it.  And the Title I aspects of the bill, which allow warrantless spying of bulk targets under executive-proclaimed “exigent circumstances,” particularly with no need to throw out the intelligence gained that way if later found to to be illegal, was a concern as well.

If Charlie Brown can manage to run for office in what has traditionally been a heavily Republican district and understand that Constitutional principles and federal statutes must come first, then it’s just impossible to take Bush Dogs who voted for FISA out of fear seriously.  “Conservative Republicans should never vote for this kind of bill… they ought to be skeptical of government power and protective of civil liberties.”

It’s important that as we go forward we support those candidates who understand these issues, who will not be swayed by what a lobbyist or a leadership PAC will suggest, but who have the experience and strength to vote based on their own principles.  There’s no question in my mind that Charlie Brown is that kind of candidate.

The following California Democrats caved on retroactive immunity and disregarded their oath to, “support and defend the Constitution of the United States against all enemies, foreign or domestic”:

Joe Baca, Howard Berman, Dennis Cardoza, Jim Costa, Jane Harman, Jerry McNerney, Nancy Pelosi, Brad Sherman, Adam Schiff, Ellen Tauscher

Pete Stark did not vote. This is the list of those who are potential targets of the Blue America PAC vs Retroactive Immunity which as of now has raised $310,673 to, “fund accountability for congressmembers supporting retroactive immunity and warrantless wiretaps.” This money isn’t going to send thank you cards to the members who did defend the constitution, this is primary money and cold cash to dump Steny Hoyer from leadership (Rahm Emanuel also capitulated).

As the battle moves to the Senate, all eyes are on Barack Obama nationally and Dianne Feinstein locally [(202) 224-3841].

As for 2010 primaries, it will be interesting to see what comes out of this. Carole Migden’s 3rd place finish showed that entrenched politics matters less in a modern media environment. Ellen Tauscher is again practically begging to be primaried and in that district she’s walking on thin ice. Joe Baca deserves particular scorn as the only Californian to sign the Blue Dog letter to Pelosi pushing capitulation (and a primary of Baca could probably receive significant institutional support from former members of the Hispanic Caucus). McNerney has outdone himself in contracting a full-blown case of Potomic Fever during his first term, every time he makes a move I think about asking for a refund. And Harman and Berman voting to cover-up warrantless wiretapping isn’t going to do much to quell the rumors that they are pushing this because they are worried about their own culpability on the issue.

If you live in one of this districts, please call your member and ask them why. Comments and diaries with responses are highly encouraged.

(Rep. Solis is one of the good ones. – promoted by David Dayen)

I share the concern raised by many on this blog about the FISA Amendments Act, especially the immunity it provides telecomm providers.  That I why I voted against the bill on Friday.  Below is my official statement.

“Today, the House of Representatives passed the FISA Amendments Act, which I voted against.  I am deeply concerned the legislation will provide an enormous loophole for those telephone companies that participated in the Bush Administration’s warrantless wiretapping program.  We cannot allow backdoor immunity for telecommunications providers who spied on Americans and broke the public trust.  

“The constituents of the 32nd Congressional District and many more from around the country have spoken loud and clear that any form of immunity for telecommunications providers is unacceptable and I wholeheartedly agree.  We must work harder to not only fight against terrorism and threats to our country but also to respect our constituents’ civil liberties and the values upon which country was founded.”

###

Back in March of 2008, Speaker Pelosi said the following in a conference call with bloggers, as reported by TPM:

Exclusivity is the issue.

To which Kagro X at DailyKos counters, with irrefutable proof: No it isn’t.

Here’s the “exclusivity” provision of the old FISA law, still on the books when George W. Bush instituted his illegal programs:

[P]rocedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

The “administration’s” lawyers — people like John Yoo — advised Bush that the president had the “inherent power” to ignore the FISA provisions in the name of “national security.” So he did it. Despite the existence of the exclusivity provisions.

The upshot is: how can exclusivity be the issue in this new FISA fight if the airtight exclusivity in the previous recension of the bill didn’t stop the Bush Administration from completely ignoring it?

This is not hard: having an exclusivity provision in a law is only useful when dealing with people who don’t intend to break it.  If you’re dealing with people who have broken similar laws before, the one thing you’d want to make sure you put on there is a guarantee that those who do break it will pay a price of some kind.

If you give immunity to organizations that were complicit in breaking the law; if you do not enforce inherent contempt against those who are in a position to know what lawbreaking was done when they refuse to testify; and if you take the threat of pressing charges against those who break the law off the table; then you may as well not have any laws at all.  Doesn’t matter if those laws have an all-hallowed “exclusivity provision” or not.

The sham “compromise” on FISA is now being considered in the in House.  After all of this time fighting to make sure the telecom companies don’t get immunity, it is extremely frustrating and disheartening to see the leadership cave to the Bush administration.  There was absolutely no need to do it.  We could have run out the clock until Bush was out of office.

It is heartening to hear from my Rep, who rarely seems to step out with her own strong voice on FISA.  Here is the statement from Rep. Doris Matsui on FISA.

I believe firmly that liberty and security are not mutually exclusive; in fact, they go hand in hand.  It is in celebration of our civil liberties that we fight to secure our nation and preserve our way of life.  In the absence of the liberties and values that we hold most dear, we lose a piece of our national identity and a small piece of the heart of our country.

That is why I must, in good conscience, vote against the FISA legislation before the House today.   The structure of the bill chips away at the bedrock of our liberties.  It is exactly times like these when we must pause, study our national discourse, and make a choice to take a principled stand against the erosion of the principles we cherish.

This is not a partisan battle, although many have fought to make it one.  It is a fight for the right of every American citizen to be free of oppression and the infringement of their personal privacy.  I am saddened that we could not reach a compromise that preserved these rights while still allowing our law enforcement professionals broad latitude to do their jobs.

Granting too much power and oversight to one branch of government shakes the very foundation of our country.  While the spirit of compromise and reasoned debate are often the best tools in a democracy, there are unalienable rights which cannot be compromised. and these rights are the reason I cannot support this legislation.

If people have other good statements on FISA from CA Reps, please throw them in this thread/diary.

[UPDATE by Dave]: On the other hand, these 11 CA Reps., who voted to provide amnesty for lawbreaking and allow illegal spying, have no conscience whatsoever, no understanding of the Constitution or the Bill of Rights, and are a complete embarrassment to the Democratic Party and should be kindly asked to leave.

Baca

Berman

Cardoza

Costa

Harman

McNerney

Pelosi

Richardson

Schiff

Sherman

Tauscher

If you can’t stand up for Constitutional rights and civil liberties, you are worthless and contemptible.  And stop asking me for money.  And don’t expect a warm reception if you should ever come around here to apologize.

We’re seeing a real separation of those on the side of justice and those on the side of cover-ups in the FISA fallout.  On the side of justice, for example, is Patrick Leahy:

But after months of negotiations, the House today unveiled a new FISA bill that I cannot support. While I applaud the fact that this legislation includes some of the important surveillance protections we wrote into the Senate Judiciary Committee bill last year, it fails to hold the Bush-Cheney Administration accountable for its illegal wiretapping program.

I will oppose this new FISA bill when the Senate votes on it next week. We must do everything we can to protect Americans from the Bush-Cheney Administration’s erosion of our civil liberties and callous disregard for the rule of law — and this new FISA bill fails that test.

Of course, he was cut out of the decision-making on this “deal.”

On the side of cover-ups is Nancy Pelosi (over):

Tomorrow, we will be taking up the FISA bill.  As you probably know, the bill has been filed.  It is a balanced bill.  I could argue it either way, not being a lawyer, but nonetheless, I could argue it either way.  But I have to say this about it: it’s an improvement over the Senate bill and I say that as a strong statement.  The Senate bill is unacceptable.  Totally unacceptable.  This bill improves upon the Senate bill.  

But you probably know that.  What you may not know is that it’s improvement over the original FISA bill as well.  So it makes progress in the right direction.  But these bills depend on the commitment to the Constitution of the President of the United States and of his Justice Department.  So while some may have some complaints about this, that, or the other about the bill, it is about the enforcement, it is about the implementation of the law where our constitutional rights are protected.  

But I’m pleased that in Title I, there is enhancement over the existing FISA law.  Reaffirmation, I guess that’s the word I’d looking for.  A reaffirmation that FISA and Title III of the Criminal Code are the authorities under which Americans can be collected upon.  It makes an improvement over current law and the Senate bill in terms of how you can collect on Americans overseas.  

It’s an improvement over the Senate bill in terms of – the Senate wanted to say, “Okay, we will agree to exclusivity,” which is, in my view, the biggest issue in the bill, that the law is the exclusive authority and not the whim of the President of the United States.  They said, “We will agree to exclusivity, but only a narrow collection of things will fall that that category.  Under the rest, the President has inherent authority under the Constitution.”   That’s out.  That’s out, thank heavens.  

And it is again in Title II, an improvement over the Senate bill in that it empowers the District Court, not the FISA Court, to look into issues that relate to immunity.  It has a strong language in terms of an Inspector General to investigate how the law has been used, is being used, will be used.  

So that will be legislation that we take up tomorrow.  We will have a lively debate I’m sure within our caucus on this subject and in the Congress.  It has bipartisan support.

She’s out of her mind.  She says that the problem was with implementation of the bill, yet the bill lets the White House off the hook for 7 years’ worth of illegal implementation of warrantless spying.  She won’t say that the District Court will assuredly immunize the telecoms because they are empowered only to see if the President gave them a piece of paper which said “this is legal.”  She thinks exclusivity is the most important part because that’s what Feinstein told her, but if the President can hand over a piece of paper and make the illegal suddenly legal, there’s nothing exclusive about FISA.

Before Pelosi became the Minority Leader in 2003 she was the ranking member of the Intelligence Committee.  She was briefed on these activities and knew at least the colors of what was taking place, if not the details.  She’s protecting her capo Steny Hoyer and protecting herself.  This is what Nancy’s allowing to go forward:

Reports of the newest FISA compromise indicate that, on telecom immunity, a federal court would be compelled to grant the telecoms immunity if there was substantial evidence that the Bush administration assured them that the warrantless surveillance program was legal. Doesn’t that actually endorse and extend to private actors the Nixonian view that if the president says it’s legal, it’s legal, regardless of what the law says and the Constitution says? Wouldn’t that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?

Despite authorizing a monarchy today, Pelosi managed to swear in Rep. Donna Edwards, a real progressive that tossed out her telecom-money-besotted chum Al Wynn, and actually used the words “Do you solemnly swear to support and defend the Constitution of the United States?”  

To which I would have said, “I don’t know, Madam Speaker.  Do you?”

…incidentally, we’re hearing that Sen. Obama’s staff is reviewing the FISA issue.  His staff has known what was about to happen for some time.  He can still end this tomorrow.  He can make sure this never sees the light of day in the Senate.  I know it would be terribly partisan to stand up for the rule of law and the Constitution, but it’s well within his capacity.  We’ll have that test of his conscience in the coming days.

The handshakes have been made, the contribution checks have been written, and the telecom industry and corporate shill Democrats have joined forces to immunize lawbreaking and undermine the rule of law.  This time, for real.

A final deal has been reached on a rewrite of electronic surveillance rules and will be announced Thursday, two congressional aides said.

The aides said the House is likely to take up the legislation Friday….

As of Wednesday, sources said the new bill would allow a federal district court to decide whether to provide retroactive legal immunity to telecommunications companies being sued for their role in the Bush administration’s warrantless surveillance program….One source said the federal district court deciding on retroactive immunity would review whether there was “substantial evidence” the companies had received assurances from the government that the administration’s program was legal.

Absolutely absurd.  Not only does this bill still allow for mass surveillance on American citizens, but according to its provisions, if the Attorney General wrote a “get out of the Constitution free” note to its telecom partners, which we alrady know they did, then they are allowed to violate federal statutes.  The telecoms don’t have any lawyers who can provide their own analysis, apparently.  I guess all the money goes into lobbying.  This is total amnesty without any way of discovering who broke the law and when.  The entire point of telecom immunity was to shut down any investigations into spying on Americans.  Democrats are cupable for having not spoken up to stop this when they had the chance and the Hoyer-Rockefeller axis wants to just bury the bodies.

This will come up for a vote as soon as TOMORROW in the House, despite being just released today.  Your representative needs a call.  Joe Baca is a Blue Dog who supported the good FISA bill, the one without amnesty.  He in particular needs some attention.

Rep. Joe Baca, D-Calif. — Phone: (202) 225-6161, Fax: (202) 225-8671

When this reaches the Senate, it will be another accountability moment for Dianne Feinstein.  She has tried to duck this debate repeatedly, but she can tell us by her vote where she stands – with corporate execs and lobbyists, or with the rule of law and the right to privacy.

It is well-known that, shortly after elements of President Bush’s illegal warrantless wiretapping program was divulged by the New York Times in December 2005, Rep. Jane Harman wasn’t happy.  She went on Meet The Press shortly thereafter and blasted the paper for leaking the details.  But we did not know that she actively sought to cover up contents of the program PRIOR to the Pulitzer Prize-winning story.

Eric Lichtblau, who along with James Risen broke the story, has a new book coming out which details the wrangling between the NYT and the Administration which caused a one-year delay in the revelation of the warrantless wiretapping program in the press.  During that time, Lichtblau ran into Jane Harman in the Capitol.

In his book, Lichtblau tells how a few months after the story was held, he happened to be covering a House hearing where he heard Rep. Jane Harman (D-CA) argue passionately for stronger civil liberties safeguards in the reauthorization of the Patriot Act.

Lichtblau saw this as an opportunity to question Harman about the warrantless wiretapping program, since Harman, as a member of the “gang of eight,” was one of the four Democrats who’d been briefed on it. He writes:

I approached Harman with notepad in hand and told her that I’d been involved in our reporting the year before on the NSA eavesdropping program. “I’m trying to square what I heard in there,” I said, “with what we know about that program.” Harman’s golden California tan turned a brighter shade of red. She knew exactly what I was talking about. Shooing away her aides, she grabbed me by the arm and drew me a few feet away to a more remote section of the Capitol corridor.

“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. This was clearly as far as she was willing to take the conversation, and we didn’t speak again until months later, after the NSA story had already run. By then, Harman’s position had undergone a dramatic transformation. When the story broke publicly, she was among the first in line on Capitol Hill to denounce the administration’s handling of the wiretapping program, declaring that what the NSA was doing could have been done under the existing FISA law.

What comes through in this exchange is that the elites in Washington have far more fealty to each other than the public.  Harman has come around; she argued strongly against the program and was one of the leaders in the House fight to amend FISA responsibly last week.  Now we’re seeing a likely stalemate on that issue, and George Bush is almost certain not to get what he desperately wants, amnesty for the telecom companies and a rejection of the lawsuits against them which could reveal even more about the program.

Still, we have this portrait of Harman, eager to cover up, convinced that what she is told must stay secret has to stay secret, untrained in the Constitution enough to see that warrantless wiretapping is unnecessary under FISA and in defiance of the Fourth Amendment.  It’s relieving a bit that the past few years, with the help of the blogosphere, have given many in the Congress an education on the document they swear to uphold and defend.  It’s also completely sad.