I don’t think so. But I’m willing to listen, if someone can make a good case for McCaskill as DNC chair.

ACLU Sues Over Unconstitutional Dragnet Wiretapping Law (7/10/2008)

Group Also Asks Secret Intelligence Court Not To Exclude Public From Any Proceedings On New Law’s Constitutionality

FOR IMMEDIATE RELEASE

CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The American Civil Liberties Union filed a landmark lawsuit today to stop the government from conducting surveillance under a new wiretapping law that gives the Bush administration virtually unchecked power to intercept Americans’ international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work – which relies on confidential communications – will be greatly compromised by the new law…

…The FISA Amendments Act of 2008, passed by Congress on Wednesday and signed by President Bush today, not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans’ international communications.

“Spying on Americans without warrants or judicial approval is an abuse of government power – and that’s exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged,” said ACLU Executive Director Anthony D. Romero. “Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights. The new wiretapping law fails to provide fundamental safeguards that the Constitution unambiguously requires.”

In today’s legal challenge, the ACLU argues that the new spying law violates Americans’ rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it’s conducting the surveillance or whether it suspects any party to the communication of wrongdoing.

Plaintiffs in today’s case are:

   * The Nation and its contributing journalists Naomi Klein and Chris Hedges

   * Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America, and the International Criminal Defence Attorneys Association

   * Defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce

“As a journalist, my job requires communication with people in all parts of the world – from Iraq to Argentina. If the U.S. government is given unchecked surveillance power to monitor reporters’ confidential sources, my ability to do this work will be seriously compromised,” said Naomi Klein, an award-winning columnist and best-selling author who is a plaintiff in today’s lawsuit. “I cannot in good conscience accept that my conversations with people who live outside the U.S. will put them in harm’s way as a result of overzealous government spying. Privacy in my communications is not simply an expectation, it’s a right.”

The ACLU’s legal challenge, which was filed in the U.S. District Court for the Southern District of New York today, seeks a court order declaring that the new law is unconstitutional and ordering its immediate and permanent halt.

In a separate filing, the ACLU asked the Foreign Intelligence Surveillance Court (FISC) to ensure that any proceedings relating to the scope, meaning or constitutionality of the new law be open to the public to the extent possible. The ACLU also asked the secret court to allow it to file a brief and participate in oral arguments, to order the government to file a public version of its briefs addressing the law’s constitutionality, and to publish any judicial decision that is ultimately issued.

“The new law allows the mass acquisition of Americans’ international e-mails and telephone calls,” said Jameel Jaffer, Director of the ACLU National Security Project. “The administration has argued that the law is necessary to address the threat of terrorism, but the truth is that the law sweeps much more broadly and implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind.”

In 2006, the ACLU filed a lawsuit against the National Security Agency (NSA) to stop its illegal, warrantless spying program. A federal district court sided with the ACLU, ruling that warrantless wiretapping by the NSA violated Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution, ran counter to the Foreign Intelligence Surveillance Act and violated the principle of separation of powers. The Bush administration appealed the ruling, and an appeals court panel dismissed the case. However, the court did not uphold the legality of the government’s warrantless surveillance activity and the only judge to discuss the merits of the case clearly and unequivocally declared that the warrantless spying was unlawful. The Supreme Court declined to hear the case earlier this year.

“A democratic system depends on the rule of law, and not even the president or Congress can authorize a law that violates core constitutional principles,” said Christopher Dunn, Associate Legal Director of the New York Civil Liberties Union. “The only thing compromised in this so-called ‘compromise’ law is the Constitution.”

Attorneys on the lawsuit Amnesty v. McConnell are Jaffer, Melissa Goodman and L. Danielle Tully of the ACLU National Security Project and Dunn and Arthur Eisenberg of the NYCLU. Attorneys on the motion filed with the FISC are Jaffer, Goodman, Tully, as well as Arthur Spitzer of the ACLU of the National Capital Area.

More information, including today’s complaint, a video discussing the ACLU’s legal challenge, plaintiff statements in support of the lawsuit and the FISC motion, is available at: www­.aclu.org/faa

Brett Penrose wonders about the Bill of Rights.

Granted, the one from Connecticut has Joe Lieberman as a colleague and that more than balances things out.

Look who co-sponsored the amendment to remove retroactive telecom immunity from the FISA bill:

S.AMDT.5064

Amends: H.R.6304

Sponsor: Sen Dodd, Christopher J. [CT] (submitted 6/26/2008) (proposed 7/8/2008)

AMENDMENT PURPOSE:

To strike title II.

TEXT OF AMENDMENT AS SUBMITTED: CR S6299

STATUS:

7/8/2008:

Amendment SA 5064 proposed by Senator Dodd.

COSPONSORS(11):

Sen Feingold, Russell D. [WI] – 6/26/2008

Sen Leahy, Patrick J. [VT] – 6/26/2008

Sen Reid, Harry [NV] – 6/26/2008

Sen Harkin, Tom [IA] – 6/26/2008

Sen Boxer, Barbara [CA] – 6/26/2008

Sen Sanders, Bernard [VT] – 6/26/2008

Sen Wyden, Ron [OR] – 6/26/2008

Sen Kennedy, Edward M. [MA] – 6/26/2008

Sen Durbin, Richard [IL] – 6/26/2008

Sen Kerry, John F. [MA] – 7/8/2008

Sen Clinton, Hillary Rodham [NY] – 7/8/2008

[emphasis added]

There are just a few senators who are conspicuous by their absence, eh Claire?

They’ll be voting on the amendments today. The prognosis is not good.

Here’s the release of Senator Dodd’s prepared text:

Floor Statement of Senator Christopher J. Dodd

On the Amendment to Strike Retroactive Immunity from the Foreign Intelligence Surveillance Act

As Prepared For Delivery

Mr. President, I rise to offer an amendment to strike Title II, which would provide retroactive immunity to telecommunications companies

Mr. President, for many Americans, this issue may seem very difficult to follow – it may seem like just another squabble over corporate lawsuits.

But in reality, it is so much more than that.  This is about choosing between the rule of law and the rule of men.

For more than seven years, President Bush has demonstrated time and time again that he neither respects the role of the Congress, nor does he respect the rule of law.

Today, we are considering legislation which will grant retroactive immunity to telecommunications companies who are alleged to have handed over to this Administration the personal information of every American-everyone phone call, every email, every fax and every text message.  And all without a warrant.

Some may argue that in fact the companies received documentation from the Administration stating that the President authorized the wiretapping program and that therefore it was legal.

These advocates will argue that the mere existence of documentation justifies retroactive immunity– that because a document was received, companies should be retroactively exonerated of all wrong-doing.

But, as the Intelligence Committee has already made clear, we already KNOW that the companies received some form of documentation, with some sort of legal determination.

But that logic is deeply flawed Mr. President.

Because the question is not whether companies received a “document” from the White House. The question is, were there actions legal?  It’s a rather straightforward and surprisingly uncomplicated question.  Did the companies break the law?

Either the companies complied with the law as it was at the time, or they didn’t.

Either the companies and the President acted outside of the rule of law, or they followed it.

Either the underlying program was legal or it wasn’t.

If we pass retroactive immunity, none of these questions will ever be answered.  Because of this so-called “compromise,” the judge’s hands will be tied, and the outcome of these cases will be predetermined.  Retroactive immunity will be granted.

So Mr. President, this is about finding out what actually happened between these companies and the Administration.

It is about holding this Administration to account for violating the rule of law and our Constitution.  It is about reminding this Administration that, “Where law ends, tyranny begins.”

And those aren’t my words, Mr. President – those words were spoken by British Prime Minister Margaret Thatcher.

Mr. President, it is time to say “no more.”

No more trampling our Constitution.

No more excusing those who violate the rule of law.

No more.

These are our principles.

They have been around at least since the Magna Carta.

They are enduring.

What they are not is temporary.  And what we should not do in a time where our country is at risk, is abandon them.  That is what is at stake here today.  Allowing retroactive immunity to go forward is by its very nature an abandonment of these principles.  

Like generations of American leaders before us, we too are confronted with a choice.

Does America stand for all that is still right with our world?  Or do we retreat in fear?

Do we stand for justice that secures America?  Or do we act out of vengeance that weakens us?

Mr. President, whatever our political party-Republican, Democrat-we were all elected to ensure that this nation adheres to the rule of law.  That is our must fundamental obligation – not as partisans but as patriots serving their country.

The rule of law is not the provenance of any one political party – but of every American who has been safer because of it.

President Bush is right about one thing: this debate is about security.  But not in the way he imagines.

He believes we have to give up our rights to be safe.

I believe the choice between moral authority and security is a false choice.

I believe it is precisely when you stand up and protect your rights that you become stronger, not weaker.

The damage that was done to our country on 9/11 was both tragic and stunning.

But when you start diminishing our rights as a people, you compound that tragedy.  You cannot protect America in the long run if you fail to protect our Constitution.  It is that simple.

As Dwight D. Eisenhower who served our country both as President and as leader of the Allied Forces in Europe during World War Two, said:

“The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

That is why I believe history will judge this President harshly for his disregard for our most cherished principles.

And if we do not change course and stand up for our Constitution, for what is best in America, for what we know is right and just, then history will most certainly decide that that it was those of us in this body who bare equal responsibility for the President’s decisions-for it was us who looked the other way, time and time again.

Mr. President, this is the moment.  At long last, let us rise to it.

Support this amendment.

Stop retroactive immunity.

Stand up for the rule of law.

Mr. President, I yield the floor.

###

Here’s the text from the FISA bill that the Dodd amendment would remove:

H.R.6304

FISA Amendments Act of 2008 (Placed on Calendar in Senate)

TITLE II–PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

SEC. 201. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

     The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by section 101, is further amended by adding at the end the following new title:

`TITLE VIII–PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

`SEC. 801. DEFINITIONS.

     `In this title:

           `(1) ASSISTANCE- The term `assistance’ means the provision of, or the provision of access to, information (including communication contents, communications record
s, or other information relating to a customer or communication), facilities, or another form of assistance.

           `(2) CIVIL ACTION- The term `civil action’ includes a covered civil action.

           `(3) CONGRESSIONAL INTELLIGENCE COMMITTEES- The term `congressional intelligence committees’ means–

                 `(A) the Select Committee on Intelligence of the Senate; and

                 `(B) the Permanent Select Committee on Intelligence of the House of Representatives.

           `(4) CONTENTS- The term `contents’ has the meaning given that term in section 101(n).

           `(5) COVERED CIVIL ACTION- The term `covered civil action’ means a civil action filed in a Federal or State court that–

                 `(A) alleges that an electronic communication service provider furnished assistance to an element of the intelligence community; and

                 `(B) seeks monetary or other relief from the electronic communication service provider related to the provision of such assistance.

           `(6) ELECTRONIC COMMUNICATION SERVICE PROVIDER- The term `electronic communication service provider’ means–

                 `(A) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);

                 `(B) a provider of electronic communication service, as that term is defined in section 2510 of title 18, United States Code;

                 `(C) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code;

                 `(D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored;

                 `(E) a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B), (C), or (D); or

                 `(F) an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E).

           `(7) INTELLIGENCE COMMUNITY- The term `intelligence community’ has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

           `(8) PERSON- The term `person’ means–

                 `(A) an electronic communication service provider; or

                 `(B) a landlord, custodian, or other person who may be authorized or required to furnish assistance pursuant to–

                       `(i) an order of the court established under section 103(a) directing such assistance;

                       `(ii) a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; or

                       `(iii) a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h).

           `(9) STATE- The term `State’ means any State, political subdivision of a State, the Commonwealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States, and includes any officer, public utility commission, or other body authorized to regulate an electronic communication service provider.

`SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.

     `(a) Requirement for Certification- 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, if the Attorney General certifies to the district court of the United States in which such action is pending that—

           `(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;

           `(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;

           `(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;

           `(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was–

                 `(A) in connection with an intelligence activity involving communications that was–

                       `(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

                       `(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

                 `(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was–

                       `(i) authorized by the President; and

                       `(ii) determined to be lawful; or

           `(5) the person did not provide the alleged assistance.

     `(b) Judicial Review-

           `(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

           `(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

     `(c) Limitations on Disclosure- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall–

           `(1) review such certification and the supplemental materials in camera and ex parte; and

           `(2) limit any public disclosure concerning such certification and the supplemental materi
als, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.

     `(d) Role of the Parties- Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court’s written order that would reveal classified information in camera and ex parte and maintain such part under seal.

     `(e) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.

     `(f) Appeal- The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.

     `(g) Removal- A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.

     `(h) Relationship to Other Laws- Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.

     `(i) Applicability- This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.

`SEC. 803. PREEMPTION.

     `(a) In General- No State shall have authority to–

           `(1) conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community;

           `(2) require through regulation or any other means the disclosure of information about an electronic communication service provider’s alleged assistance to an element of the intelligence community;

           `(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or

           `(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.

     `(b) Suits by the United States- The United States may bring suit to enforce the provisions of this section.

     `(c) Jurisdiction- The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.

     `(d) Application- This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.

`SEC. 804. REPORTING.

     `(a) Semiannual Report- Not less frequently than once every 6 months, the Attorney General shall, in a manner consistent with national security, the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title.

     `(b) Content- Each report made under subsection (a) shall include–

           `(1) any certifications made under section 802;

           `(2) a description of the judicial review of the certifications made under section 802; and

           `(3) any actions taken to enforce the provisions of section 803.’.

SEC. 202. TECHNICAL AMENDMENTS.

     The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by section 101(b), is further amended by adding at the end the following:

`TITLE VIII–PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

           `Sec. 801. Definitions.

           `Sec. 802. Procedures for implementing statutory defenses.

           `Sec. 803. Preemption.

           `Sec. 804. Reporting.’.

TITLE III–REVIEW OF PREVIOUS ACTIONS

SEC. 301. REVIEW OF PREVIOUS ACTIONS.

     (a) Definitions- In this section:

           (1) APPROPRIATE COMMITTEES OF CONGRESS- The term `appropriate committees of Congress’ means–

                 (A) the Select Committee on Intelligence and the Committee on the Judiciary of the Senate; and

                 (B) the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.

           (2) FOREIGN INTELLIGENCE SURVEILLANCE COURT- The term `Foreign Intelligence Surveillance Court’ means the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).

           (3) President’S SURVEILLANCE PROGRAM AND PROGRAM- The terms `President’s Surveillance Program’ and `Program’ mean the intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007, including the program referred to by the President in a radio address on December 17, 2005 (commonly known as the Terrorist Surveillance Program).

     (b) Reviews-

           (1) REQUIREMENT TO CONDUCT- The Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other element of the intelligence community that participated in the President’s Surveillance Program, shall complete a comprehensive review of, with respect to the oversight authority and responsibility of each such Inspector General–

                 (A) all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program;

                 (B) access to legal reviews of the Program and access to information about the Program;

                 (C) communications with, and participation of, individuals and entities in the private sector related to the Program;

                 (D) interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and

                 (E) any other matters ident
ified by any such Inspector General that would enable that Inspector General to complete a review of the Program, with respect to such Department or element.

           (2) COOPERATION AND COORDINATION-

                 (A) COOPERATION- Each Inspector General required to conduct a review under paragraph (1) shall–

                       (i) work in conjunction, to the extent practicable, with any other Inspector General required to conduct such a review; and

                       (ii) utilize, to the extent practicable, and not unnecessarily duplicate or delay, such reviews or audits that have been completed or are being undertaken by any such Inspector General or by any other office of the Executive Branch related to the Program.

                 (B) INTEGRATION OF OTHER REVIEWS- The Counsel of the Office of Professional Responsibility of the Department of Justice shall provide the report of any investigation conducted by such Office on matters relating to the Program, including any investigation of the process through which legal reviews of the Program were conducted and the substance of such reviews, to the Inspector General of the Department of Justice, who shall integrate the factual findings and conclusions of such investigation into its review.

                 (C) COORDINATION- The Inspectors General shall designate one of the Inspectors General required to conduct a review under paragraph (1) that is appointed by the President, by and with the advice and consent of the Senate, to coordinate the conduct of the reviews and the preparation of the reports.

     (c) Reports-

           (1) PRELIMINARY REPORTS- Not later than 60 days after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other Inspector General required to conduct a review under subsection (b)(1), shall submit to the appropriate committees of Congress an interim report that describes the planned scope of such review.

           (2) FINAL REPORT- Not later than 1 year after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other Inspector General required to conduct a review under subsection (b)(1), shall submit to the appropriate committees of Congress, in a manner consistent with national security, a comprehensive report on such reviews that includes any recommendations of any such Inspectors General within the oversight authority and responsibility of any such Inspector General with respect to the reviews.

           (3) FORM- A report under this subsection shall be submitted in unclassified form, but may include a classified annex. The unclassified report shall not disclose the name or identity of any individual or entity of the private sector that participated in the Program or with whom there was communication about the Program, to the extent that information is classified.

     (d) Resources-

           (1) EXPEDITED SECURITY CLEARANCE- The Director of National Intelligence shall ensure that the process for the investigation and adjudication of an application by an Inspector General or any appropriate staff of an Inspector General for a security clearance necessary for the conduct of the review under subsection (b)(1) is carried out as expeditiously as possible.

           (2) ADDITIONAL PERSONNEL FOR THE INSPECTORS GENERAL- An Inspector General required to conduct a review under subsection (b)(1) and submit a report under subsection (c) is authorized to hire such additional personnel as may be necessary to carry out such review and prepare such report in a prompt and timely manner. Personnel authorized to be hired under this paragraph–

                 (A) shall perform such duties relating to such a review as the relevant Inspector General shall direct; and

                 (B) are in addition to any other personnel authorized by law.

           (3) TRANSFER OF PERSONNEL- The Attorney General, the Secretary of Defense, the Director of National Intelligence, the Director of the National Security Agency, or the head of any other element of the intelligence community may transfer personnel to the relevant Office of the Inspector General required to conduct a review under subsection (b)(1) and submit a report under subsection (c) and, in addition to any other personnel authorized by law, are authorized to fill any vacancy caused by such a transfer.

[emphasis added]

Go ahead, give Claire McCaskill a call today. (202) 224-6154  

Glen Greenwald hits another one out of the park:

…So much of this comes from the constant fetishizing of the President as the Supreme Leader, “our” Commander-in-Chief, rather than — as the Constitution explicitly states — “commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” In the U.S., private actors don’t have government “commanders” who can “order” or “direct” them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg — in tandem with the rest of the political establishment — claiming that private telecoms were justified, even compelled, to obey unlawful “orders” from the President, and are therefore entitled to be immunized from consequences…

[emphasis added]

Now that’s America. As for Glen Greenwald? We are not worthy.

And some people want to hand over the keys to the store to McSame…

First, a little bit ‘o background courtesy of Glenn Greenwald:

…FISA — enacted in 1978 and amended many times to accommodate modern communications technology — has no expiration date. The Protect America Act, which Congress enacted last August to legalize warrantless eavesdropping on Americans, had a 6-month sunset provision and thus already expired back in February, restoring FISA as the governing law. Thus, if Congress does nothing now, FISA will continue indefinitely to govern the Government’s power to spy on the communications of Americans. It doesn’t expire….

You got that, Claire?

Now, to the latest interesting development, via EFF:

Breaking News: Court Holds That FISA Preempts State Secret Privilege

Posted by Kurt Opsahl

New NSA Spying Decision Undermines Arguments for Telecom Immunity

Today, Chief Judge Vaughn Walker of the Northern District of California, issued an opinion in Al Haramain v. Bush, one of the cases challenging the NSA warrantless wiretapping program. The Court found that the Foreign Intelligence Surveillance Act (FISA) preempted the state secret privilege. This important decision is particularly timely, as it undermines key arguments for telecom immunity on the eve of the Senate vote on a FISA bill, set for next week.

[emphasis added]

You got that, Claire?

The United States District Court for the Northern District of California issued an order day, on remand from the court of appeals:

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

IN RE:

NATIONAL SECURITY AGENCY

TELECOMMUNICATIONS RECORDS

LITIGATION

MDL Docket No 06-1791 VRW

ORDER (pdf)

This order pertains to:

Al-Haramain Islamic Foundation et

al v Bush et al (C-07-0109 VRW)…

And what did the order actually state?:

…The lack of precedents under section 1810 complicates the task of charting a path forward. The court of appeals reversed the Oregon district court’s plan for allowing plaintiffs to proceed with their suit, but did not suggest a way for plaintiffs to proceed without using the Sealed Document. Nonetheless, the court believes that dismissal with prejudice is not appropriate. Accordingly, plaintiffs’ FISA claim will be dismissed with leave to amend. Plaintiffs should have the opportunity to amend their claim to establish that they are “aggrieved persons” within the meaning of 50 USC § 1801(k). In the event plaintiffs meet this hurdle, the court will have occasion to consider the treatment of the Sealed Document under section 1806(f) and the significant practical challenges of adjudicating plaintiffs’ claim under section 1810.

For the reasons stated herein, plaintiffs’ claim under FISA is DISMISSED with leave to amend. Plaintiffs shall have thirty (30) days to amend their complaint in accordance with this order. Should plaintiffs seek to amend their non-FISA claims, they shall do so by means of a noticed motion before this court in accordance with the local rules.

IT IS SO ORDERED.

What had the government argued (earlier in the text of the order)?:

…Having thus dealt with the first issue, the court of appeals turned to the government’s second issue on appeal–Al-

Haramain’s standing–and held that plaintiffs could not establish standing to proceed with their lawsuit without the Sealed Document because they could not establish a “concrete and particularized” injury-in-fact under the principles of Lujan v Defenders of Wildlife, 504 US 555 (1992): “Al-Haramain cannot establish that it has standing, and its claims must be dismissed, unless FISA preempts the state secrets privilege.” 507 F3d 1205…

Oopsie.

You got that, Claire?

U.S. Senate Roll Call Votes 110th Congress – 2nd Session

as compiled through Senate LIS by the Senate Bill Clerk under the direction of the Secretary of the Senate

Vote Summary

Question: On Cloture on the Motion to Proceed (Motion to Invoke Cloture on the Motion to Proceed to H.R. 6304 )

Vote Number: 158 Vote Date: June 25, 2008, 06:25 PM

Required For Majority: 3/5 Vote Result: Cloture on the Motion to Proceed Agreed to

Measure Number: H.R. 6304 (Foreign Intelligence Surveillance Act of 1978 )

Measure Title: A bill to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

Vote Counts: YEAs 80

NAYs 15

Not Voting 5

Vote Summary By Senator Name By Vote Position By Home State

Alphabetical by Senator Name

Akaka (D-HI), Yea

Alexander (R-TN), Yea

Allard (R-CO), Yea

Barrasso (R-WY), Yea

Baucus (D-MT), Yea

Bayh (D-IN), Yea

Bennett (R-UT), Yea

Biden (D-DE), Nay

Bingaman (D-NM), Yea

Bond (R-MO), Yea

Boxer (D-CA), Nay

Brown (D-OH), Nay

Brownback (R-KS), Yea

Bunning (R-KY), Yea

Burr (R-NC), Yea

Byrd (D-WV), Not Voting

Cantwell (D-WA), Nay

Cardin (D-MD), Yea

Carper (D-DE), Yea

Casey (D-PA), Yea

Chambliss (R-GA), Yea

Clinton (D-NY), Not Voting

Coburn (R-OK), Yea

Cochran (R-MS), Yea

Coleman (R-MN), Yea

Collins (R-ME), Yea

Conrad (D-ND), Yea

Corker (R-TN), Yea

Cornyn (R-TX), Yea

Craig (R-ID), Yea

Crapo (R-ID), Yea

DeMint (R-SC), Yea

Dodd (D-CT), Nay

Dole (R-NC), Yea

Domenici (R-NM), Yea

Dorgan (D-ND), Yea

Durbin (D-IL), Nay

Ensign (R-NV), Yea

Enzi (R-WY), Yea

Feingold (D-WI), Nay

Feinstein (D-CA), Yea

Graham (R-SC), Yea

Grassley (R-IA), Yea

Gregg (R-NH), Yea

Hagel (R-NE), Yea

Harkin (D-IA), Nay

Hatch (R-UT), Yea

Hutchison (R-TX), Yea

Inhofe (R-OK), Yea

Inouye (D-HI), Yea

Isakson (R-GA), Yea

Johnson (D-SD), Yea

Kennedy (D-MA), Not Voting

Kerry (D-MA), Nay

Klobuchar (D-MN), Yea

Kohl (D-WI), Yea

Kyl (R-AZ), Yea

Landrieu (D-LA), Yea

Lautenberg (D-NJ), Nay

Leahy (D-VT), Nay

Levin (D-MI), Yea

Lieberman (ID-CT), Yea

Lincoln (D-AR), Yea

Lugar (R-IN), Yea

Martinez (R-FL), Yea

McCain (R-AZ), Not Voting

McCaskill (D-MO), Yea

McConnell (R-KY), Yea

Menendez (D-NJ), Nay

Mikulski (D-MD), Yea

Murkowski (R-AK), Yea

Murray (D-WA), Yea

Nelson (D-FL), Yea

Nelson (D-NE), Yea

Obama (D-IL), Not Voting

Pryor (D-AR), Yea

Reed (D-RI), Yea

Reid (D-NV), Yea

Roberts (R-KS), Yea

Rockefeller (D-WV), Yea

Salazar (D-CO), Yea

Sanders (I-VT), Nay

Schumer (D-NY), Nay

Sessions (R-AL), Yea

Shelby (R-AL), Yea

Smith (R-OR), Yea

Snowe (R-ME), Yea

Specter (R-PA), Yea

Stabenow (D-MI), Yea

Stevens (R-AK), Yea

Sununu (R-NH), Yea

Tester (D-MT), Yea

Thune (R-SD), Yea

Vitter (R-LA), Yea

Voinovich (R-OH), Yea

Warner (R-VA), Yea

Webb (D-VA), Yea

Whitehouse (D-RI), Yea

Wicker (R-MS), Yea

Wyden (D-OR), Nay  

I got the following e-mail from Jane Hamsher at Firedoglake with some good advice:

Dear Clark,

The House passed a version of the Foreign Intelligence Surveillance Act (FISA) last week that included retroactive immunity to the telecom companies that conspired in Bush’s warrantless wiretapping program. And now, as the bill heads to the Senate, it looks like we have one last chance to stop this massive erosion of the rule of law.

Thankfully, we have a few champions, like Russ Feingold and Chris Dodd, who look poised to fight this to the very end, but they can’t do it alone. They need both strong support from progressive senators and the vote of those senators currently sitting on the fence. This is where you come in.

Sen. McCaskill could be the deciding voice and vote on stopping retroactive immunity. Please take a minute right now to give her a call and ask her to strip the retroactive immunity provision of FISA.

You can call either by dialing the Capitol switchboard at (202) 224-3121, or by using our list of direct number for target senators.

After you are done with the call, please take a moment to let us know how the call went.

Senator Feingold effectively summed up the insanity of retroactive immunity yesterday by saying, “It doesn’t simply have the impact of potentially allowing telephone companies to break the law. It may prevent us from ever getting to the core issue…which is the president ran an illegal program that could’ve been an impeachable offense.”

I hope that you’ll join me and do what you can to help prevent this from happening.

Thank you,

Jane Hamsher, Firedoglake

Thanks to everyone for all their hard work over the last week in stopping the Telecom Immunity Bill in the Senate. Because you kept up the pressure on McCaskill, she voted “No” on the telecom immunity bill before Congress on Monday. And believe me, all your calls and faxes had an effect. Early on, the staffers answering the phones hardly offered to take down your contact information, and didn’t really seem to know why changes to FISA were a big deal. Now, they’re polite and much more apt to listen to your concerns about government spying. It’s crazy that any effort at all is required to open a government official’s eyes and ears, but that makes our effort all the more urgent.

Unfortunately, McCaskill’s going to need to hear a little more from us. I have it on good authority that while McCaskill opposed the McConnell version of telecom immunity, she favors the “compromise” Feinstein or Specter version of telecom community.

More below the flip.

The Courage Campaign has outlined the reasons why Feinstein’s and Specter’s amendments aren’t worth the paper they are printed on.

First, the Feinstein amendment kicks the question of whether or not telecom companies were guilty of cooperating with Bush’s illegal wiretaps to the FISA court. In other words, a secret court with no public scrutiny or accountability will determine the question of immunity, and we may never even know which way the court decided.

Second, the amendment establishes a “good faith” test to determine whether a company was guilty. In other words, a telecom company could be found guilty of illegal behavior, but let off the hook if they can demonstrate that they didn’t know that they were doing wrong. Gee – I’d love to be held to that standard. I could pay half my taxes and plead that I had made a effort in good faith to total them up correctly, but my math isn’t so good.

The Specter amendment, which would substitute the goverment as the defendant instead of the telecom companies should a case be brought, is also a raw deal for Americans. The US government can bring a lot more to bear in its defense, like as invoking state secrets privileges, than a private entity like a corporation. The ACLU opposes both amendments, because they are both really just splitting the baby. Either you support holding Americans accountable for complicity in illegal acts, or you don’t.

I really don’t understand why, when forced to choose between Sprint and the people of Missouri, McCaskill would side with Sprint. I think we outnumber Sprint a great deal in both votes and donations.

Please contact McCaskill right away:

D.C.

Phone:(202) 224-6154

Fax:(202)228-6326

Kansas City

Phone: (816) 421-1639

Fax: (816) 421-2562

Address:

400 East 9th Street, Suite 40 Plaza Level

Kansas City, MO 64106

Cape Girardeau

Phone: (573) 651-0964

Fax:

Address:

339 Broadway, Room 136

Cape Girardeau, MO 63701

St. Louis

Phone: (314) 367-1364

Fax: (314) 361-8649

Address:

5850 A Delmar Blvd.

St. Louis, MO 63103

Columbia

Phone: (573) 442-7130

Fax: (573) 442-7140

Address:

915 E. Ash St.

Columbia, MO 65201

Springfield

Phone: (417) 291-1475

Fax:

Address:

324 Park Central West, Ste. 101

Springfield, MO 65806

UPDATE: Victory! For now at least. I’ve got some more news on this front later.

Today at 4:30 PM, senators will be voting on Sen. Mitch McConnell’s cloture motion on the new FISA bill. The Republican Minority Leader’s bill preserves immunity for telecom companies that allowed illegal wiretaps. A “No” vote on cloture stops the bill dead in its tracks. (If you’re confused as to why stopping telecom immunity is important, StopTheSpying.com has a great summary here.

Let’s keep the pressure on McCaskill to vote “No”. A good source has informed me that over McCaskill’s office received 1000 calls opposing telecom immunity by early Friday. But now is no time to stop. We need to whip up some more calls and faxes by 2:00 PM Eastern time, when Sen. McCaskill is due to take the Senate floor.

Senator McCaskill’s DC office contact info:

Phone: (202) 224-6154  Fax: (202) 228-6326  

Local office contact info below the flip:

Kansas City

Phone: (816) 421-1639

Fax: (816) 421-2562

Address:

400 East 9th Street, Suite 40 Plaza Level

Kansas City, MO 64106

Cape Girardeau

Phone: (573) 651-0964

Fax:

Address:

339 Broadway, Room 136

Cape Girardeau, MO 63701

St. Louis

Phone: (314) 367-1364

Fax: (314) 361-8649

Address:

5850 A Delmar Blvd.

St. Louis, MO 63103

Columbia

Phone: (573) 442-7130

Fax: (573) 442-7140

Address:

915 E. Ash St.

Columbia, MO 65201

Springfield

Phone: (417) 291-1475

Fax:

Address:

324 Park Central West, Ste. 101

Springfield, MO 65806