FISA and Dems by the Numbers

[Bennet Kelley]

FISA and Beltway Dems Strictly by the Numbers

by Bennet Kelley

The current disconnect between the Democratic Congressional leadership and the party base over amendments to the Foreign Intelligence Surveillance Act (FISA) can be best summarized numerically since,like pictures, numbers too can speak a thousand words.

1,463
Over the past few years, faithful Democrats have stood by while many Congressional Democrats aided President Bush in passing the Patriot Act, authorizing the Iraq War and continuing to fund it without restriction, endorsing torture and confirming an attorney general who refused to take a stand on water-boarding. Democrats finally had reason to cheer when, earlier this year, House Democrats refused to rubber stamp the White House' attempt to gut FISA's protections, recognizing that, in the words of Congressman Silvestre Reyes, "we are a strong nation (and) cannot allow ourselves to be scared into suspending the Constitution."

Unfortunately, an outraged base would soon discover that this moment of courage was short-lived as party leaders were eager to once again get in bed with the administration on this issue. The base's dissatisfaction is illustrated by the number 1,463 which is the result of a Google blog search using the term "Democrats cave" (the number for "Republicans cave" is only to 155).

57 and 14
What is especially galling to the Democratic base is that their leaders refused to stand up to a president whose approval rating among non-Republicans is only 14 percent (and only 25 percent overall according to a recent CBS poll) but were willing to defy the voters and support a bill that at least 57 percent of Americans opposed. That may explain why the only people less popular in America today than President Bush are O.J. Simpson, the MySpace mom who drove a girl to suicide and Congress.

2,300 and 5,000
The impact of these poll numbers on party leaders may be muted by a different set of numbers -- $2,300 and $5,000 which are the contribution limits for individual donors and PACs -- as some reports speculated that the FISA vote was intended to placate the party's donor base. This focus on fundraising creates a further disconnect with the political base since not only does it lead to poor policy choices, it is leading party brass to choose candidates favored by donors and not the grassroots.

This is exactly what is happening in Arizona's First Congressional District where activists are up in arms because the party is pushing a candidate who did not even have a position on Iraq or abortion when she entered the race simply because of her edge in fundraising (largely due to Emily's List) over a candidate that has the support of the grass roots.

ZERO
The other problem is that too often since 9/11 (if not before), Democrats have voted out of fear on national security issues in order to insulate themselves from Republican attacks. Consider the fact that in the vote for the first Gulf War in 1991, 46 Senate Democrats voted against the war powers resolutions and yet, while only two would later be defeated and almost half were still members when the vote came in 2002 for the Iraq War, political consultants managed to convince Democrats that voting against the war would be political suicide. As a result, only 21 Senate Democrats voted against the war (with 9 Democrats who had voted against the first war switching sides).

There is an old proverb that he who fears something gives it power over him. In 2002, Democrats acted out of fear in the hope that they could put the war vote behind them and steer the election back to the economic issues, but President Bush had other plans. Bush has continued to prey on that fear time and time again and will continue to do so until November.

The key number here is zero, since Democrats must recognize that is precisely their chance of winning the national security debate if all they do is mimic Republican positions and do not put forth their own. Seven years after 9/11, we are still mired in an unnecessary war in Iraq, the Taliban is growing stronger, bin Laden remains at large and our standing in the world has never been lower. It is time that the party summoned the courage to go toe-to-toe with Republicans on national security.

73
This is the most critical number, since it represents the number of words in the oath of office in which each member of Congress swears to "support and defend the Constitution of the United States against all enemies, foreign and domestic." That is the number history will judge them by. As Congress recesses and members return to their districts for the upcoming holiday they may be unpleasantly surprised to find that some of that judging is already occurring.

Originally published in the Santa Monica Daily Press

[merh]

1. okay Bennet

tell me where the proposed legislation violates the constitution.

[Mojorabbit]

2. There have been a plethora

of threads that detail why this bill is bad and you show up in all of them saying it isn't but do not put anything concrete on the table to support your position. I'd love to hear in detail why you think this is a good bill since most of the experts seem to disagree with your stance.

[merh]

7. To begin with

http://journals.democraticunderground.com/merh/118

Now, to properly discuss the bill you should be able to give me language from the bill that makes you reach the conclusions you have reached. Not someone else's concerns, your own. You post your concerns and I will tell you why I think your concerns are missplaced.

Oh, and about that "GWB needs it for telecome immunity" - he doesn't need it, he can go one better at the end of his term and pardon all from both civil and criminal.

[Phred42]

11. GWB can only pardon from Federal Crimes not State

[merh]

13. The telecoms violating the rights of US citizens would be federal

crimes. What state crimes are you referring to?

[Phred42]

19. Correct.

Illegal Spying is a Federal Crime.

I wasn't referring to state crimes just making the point that a Presidential Pardon is only good for Federal Crimes.

[robinlynne]

4. stupid question this one. do your homework.

[merh]

6. Not a stupid question - there are no violations in the law, as

a matter of fact, it specifically refers to the 1st and 4th amendment and states that nothing allowed by the law shall violate either.

Stupid response maybe you want to take a minute and use your brain and think that maybe there is a reason the question was asked.

The law is not perfect, but folks are making it more than what it is. So you go to the actual legislation, to the actual language that does as you say or as the author says and explain to me the violations. Don't use someone eles's opinion, use your own, think for yourself.

[midnight]

5. Here is a little bit of information to read if your interested in why

this FISA bill is considered unconsitiutional:No warrants would be needed in such cases, and the intelligence community could begin its warrantless surveillance program before the FISA court review in “exigent,” or urgent, circumstances
http://public.cq.com/docs/cqt/news110-000002897330.html

[merh]

8. What part of this provision leads you to believe that?

‘(2) REQUIREMENTS- A certification made under this subsection shall--

‘(A) attest that--

‘(i) there are procedures in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court that are reasonably designed to--

‘(I) ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

‘(II) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

‘(ii) the minimization procedures to be used with respect to such acquisition--

(snip)

‘(iv) the procedures and guidelines referred to in clauses (i), (ii), and (iii) are consistent with the requirements of the fourth amendment to the Constitution of the United States;

The requirements of the 4th is that probable cause exist and this legislation specifically refers to the 4th amendment rights of US citizens and probable cause. Hell, it evens protects the 1st amendment rights of folks and you guys haven't any bothered to be worried about those.

‘(3) ORDERS-

‘(A) APPROVAL- If the Court finds that a certification submitted in accordance with subsection (g) contains all the required elements and that the targeting and minimization procedures adopted in accordance with subsections (d) and (e) are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States, the Court shall enter an order approving the certification and the use, or continued use in the case of an acquisition authorized pursuant to a determination under subsection (c)(2), of the procedures for the acquisition.

‘(c) Order-

‘(1) FINDINGS- Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court approving the acquisition if the Court finds that--

‘(A) the application has been made by a Federal officer and approved by the Attorney General;

‘(B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is--

‘(i) a person reasonably believed to be located outside the United States; and

‘(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

‘(C) the proposed minimization procedures meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

‘(D) the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3).

‘(2) PROBABLE CAUSE- In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

[merh]

10. I try to do my own thinking and that is why I go to the language of the

legislation in question. Your article is outdated, this proposed legislation does require that the district court hearing the civil action do consider the defenses as presented. The AG may certify, but the court reviews the certification to determine if the defenses absolve the telecom.

Notice also that the legislation contains the language about unintentional targeting of US citizens and does not allow it. No court is going to allow the surveillance of US citizens just because the foreign target calls the US, if US citizens are involved then the requirements regarding same come into play.

[Bennet Kelley]

14. Fair Enough, Section 109

SEC. 109. Foreign Intelligence Surveillance Court.

(c) Stay or modification during an appeal.—Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended—

(1) by redesignating subsection (f) as subsection (g); and

(2) by inserting after subsection (e) the following new subsection:

(f) (1) A judge of the court established under subsection (a), the court established under subsection (b) or a judge of that court, or the Supreme Court of the United States or a justice of that court, may, in accordance with the rules of their respective courts, enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection (b) entered under any title of this Act, while the court established under subsection (a) conducts a rehearing, while an appeal is pending to the court established under subsection (b), or while a petition of certiorari is pending in the Supreme Court of the United States, or during the pendency of any review by that court.

(2) The authority described in paragraph (1) shall apply to an order entered under any provision of this Act.

No FISA request was ever denied until the Bush administration and even then less than 0.1% are denied. Under this bill, if that 0.1% happens and there has not been an adequate showing to justify such a search, the surveillance may continue until all appeals have been exhausted.

In addition, the act legitimizes past warrantless searches by giving immunity to the telecoms that enabled them.

[merh]

16. The provision you quote does not establish what you claim.

"enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection" - stays mean that the action will not continue, modify may mean that the surveillance continue but it does not necessarily mean that it will continue as ordered, that it be modified to comport with the 4th amendment as required by the legislation.

And again, nothing in this bill grants immunity. If the search was warrantless, without probable cause it was unlawful, it was not legal and that is a specific that negates the defenses available.

[Bennet Kelley]

17. the stay/modification refers to the denial not the application

The language permits "a stay of an order or an order modifying an order of the court". The stay applies to the order denying the application, it does not stay the activity. So even if the government can't satisfy the minimal requirements under FISA, this provision allows searches that do satisfy the 4th Amendment to continue.

On the question of immunity:

Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed . . .

Call it what you will, but it absolves the telecomms from civil liability. For searches 2001-2007, there will be immunity so long as the AG asserts the searches were lawful. Under this administration's unitary executive theory, anything it does in national security is lawful, so the telecomms get a pass.

I'm afraid that I won't be able to respond to any response you may have since I am jammed the next few days.

[merh]

18. Wrong, the activity cannot begin without the order authorizing it.

except in case of an emergency and even then the judge has to be notified and within 7 days a certificate must be presented to the court for approval or denial.

[bjobotts]

3. Excellent post. Raises the question that on main issues it's the same as if Repubs held the majority

[NorthCarolina]

9. The Democratic Party is loaded with DLC'ers and Blue Dogs,

corporate conservatives all. It isn't really the case that the Dems are "caving" to the Repubs, but rather they are essentially of the same ilk. Reject these DLC members and Blue Dogs at every opportunity and replace them with true progressives. Only then will we once again to see two distinct political parties, instead of two based on the same set of Corporate ideals that operate as one.

[Phred42]

12. EXACTLY !

With DLC and Blue Dogs - Rove HAS his permanent Republican majority.

They are the Judas Goats and MUST be purged from the Party if the Democrats are to be anything other than.....The Republican-lite Party,

The Other White Meat.

[defendandprotect]

21. True . . . how many realize it's a fight to take back control of the party . . . ???

[NorthCarolina]

24. Not nearly enough realize that it seems. n/t

[Bennet Kelley]

15. that's a gross over simplification

Just ask the millions get a minimum wage increase for the first time since Clinton.

[eridani]

20. Linky, linky?

I'd like to send this around.

[defendandprotect]

22. The original FISA is a violation of our Constitutional rights . . .

[defendandprotect]

23. ...and where are people lining up to celebrate it as a victory for freedom-???

Skipping the tortured legalese, clearly it is only a "victory" for neo-cons and those

who like Nixon are following in his footsteps, now in even deeper conspiracy with

corporations who control the gates ---