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August 8, 1974 v. July 9, 2008
The votes in the Senate on various amendments to the FISA "compromise" bill and to the underlying bill itself were originally scheduled for today, but have been postponed until tomorrow (Wednesday, July 9) to enable Senators to attend the funeral of Jesse Helms. Rejection of the amendments -- including the Dodd-Feingold-Leahy amendment to strip telecom immunity from the bill -- is all but certain, and final passage of the bill (with the support of both presidential candidates) is guaranteed.
Once passed by the Senate, the FISA bill will then immediately be sent by the Democratic Congress to an eagerly awaiting and immensely pleased President Bush, who will sign it into law, thereby putting a permanent and happy end to the scandal that began when -- in December, 2005 -- he was caught spying on the communications of American citizens in violation of the law. The only real remaining questions are (a) whether Bush will host Steny Hoyer and Jay Rockefeller at a festive, bipartisan White House signing ceremony to celebrate the evisceration of the Fourth Amendment and the rule of law, and (b) whether Bush, when he signs the bill into law, will append a signing statement decreeing that even its minimal restraints on presidential spying are invalid.
As part of the campaign to target those responsible for the ongoing destruction of core civil liberties and the endless expansion of America's lawless surveillance state, we have a full-page ad in the "A" Section of this morning's Washington Post, the purpose of which is to serve as a final argument directed to the Beltway class, a clear statement of exactly what it is that they are really about to do this week (click on both parts below to read the ad with large print or click here to read the full ad in somewhat smaller print):
If nothing else, as the Democratic-led Senate follows in the footsteps of the Democratic-led House this week by passing a bill demanded by George Bush and Dick Cheney to cover up and retroactively legalize their surveillance crimes and protect the lawbreakers, there will be a clear record -- delivered to their front doors -- of what they're really doing, along with an accounting of the deceitful propaganda they are disseminating to mask and justify it. * * * * *
As I have described previously, the campaign we have been conducting is intended to be only the first step -- not the last -- in taking a stand against the endless erosion of core constitutional protections and the rapidly expanding Lawless Surveillance State. We have created a new organization, Accountability Now, to conduct the ongoing battle to target and remove from power those who enable these abuses; to force these issues into our political discourse; and to prevent the Washington Establishment from continuing to trample on basic constitutional protections with impunity.
The first campaign of this new organization is the formation of Strange Bedfellows, the ideologically diverse coalition we have formed with liberals, libertarians and others who are devoted to the preservation of our core constitutional liberties and the rule of law. Before it has even begun, The Wall St. Journal and numerous online venues have written about this unique coalition. To initiate and fund our new campaign, we have teamed with the individual who was behind the innovative and extraordinarily successful Ron Paul "money bombs" -- Trevor Lyman, along with Rick Williams and Break the Matrix -- to plan an "Accountability Money Bomb" for August 8. That is the day in 1974 when Richard Nixon was forced to resign from office for his lawbreaking and surveillance abuses. That day illustrates how far we have fallen in this country in less than 35 years, as we now not only permit rampant presidential lawbreaking and a limitless surveillance state, but have a bipartisan political class that endorses it and even retroactively protects the lawbreakers.
To participate in the money bomb and support our new organization, you can pledge to donate here -- or by clicking on the logo above. On August 8, those who pledged will make their actual donations in whatever amount they choose, and the results will then be announced. This type of ideologically diverse coalition devoted to the preservation of basic constitutional protections and the rule of law -- modeled after the still-growing and increasingly potent left-right coalition that has spontaneously arisen in Britain to fight against their Establishment's corrupt seizure of limitless surveillance and detention powers -- can be a new and powerful force. Those who are responsible for these erosions need to be undermined and the nature of the debate over these issues needs to be changed. A successful start and the support of as many people as possible is vital to launching this effort the right way -- in a way that will enable its presence to be heard and felt in the Beltway precincts that need to hear and feel it. * * * * *
With regard to the Senate FISA vote, a new event occurred yesterday that underscores the pure lawlessness of what our Congress will do this week. One of the pending Senate amendments -- the only one with any remote chance of passing -- is an amendment (.pdf) sponsored by Sen. Jeff Bingaman (co-sponsored by GOP Sen. Arlen Specter and Democratic Sen. Bob Casey). The Bingaman amendment would merely postpone the granting of telecom immunity until 90 days after Congress receives the Inspector General's audits of the President's NSA spying program which the new FISA bill mandates, and would freeze the telecom lawsuits in place until then.
The rationale behind the amendment is clear and simple: namely, members of Congress, the vast majority of whom know virtually nothing about what the telecoms did, shouldn't grant immunity unless they know what this illegal spying program entailed. If the IG Report reveals that the program (even though illegal) was devoted to a benign and proper purpose, then Congress (if it is so inclined) can grant immunity then. But if the IG Report reveals the spying program to be something other than what the President and the telecoms claim it to be -- if it entails far more invasive surveillance of Americans or was abused for improper purposes -- then immunity would obviously be wildly inappropriate. Even the ACLU and EFF, the lead organizations behind the telecom lawsuits, favor the Bingaman Amendment. That amendment is a true compromise. It rests on what should be the completely uncontroversial proposition that Congress shouldn't immunize the lawbreakers until they at least know what was done. In the meantime, the lawsuits are frozen so that telecoms are spared the tragic burdens of having to account for their behavior in a court of law like everyone else does.
Revealing what telecom immunity is really about -- ensuring a permanent cover-up of Bush surveillance crimes -- Bush DNI Mike McConnell (who previously worked on behalf of the telecom industry to increase their government surveillance contracts) and Attorney General Michael Mukasey sent a joint letter to the Senate yesterday vowing that the President would veto the entire FISA bill if the Bingaman amendment were included, and issued this standard fear-mongering decree:
So not only does our Safety require that telecoms be immunized from lawsuits over their lawbreaking, but we can't even wait until we know what was done before immunizing them. Even waiting to immunize telecoms will gravely imperil "national security." Frightening. Immunize telecoms -- now, not later -- or prepare to be slaughtered by the Terrorists. And that's all Congress needs to know. McConnell and Mukasey end the letter by advising that they "strongly support the prompt passage" of the House FISA bill. I bet they do.
Manipulative appeals to "national security" are, of course, exactly what has enabled the Bush administration to bully Congress into giving them everything they want for years -- "give us the powers we want and immunize our lawbreaking or be killed by Terrorists." That's how our country has been "governed" in the Bush era -- with heavy-handed, authoritarian decrees that we must comply with our Leader's secretly-formed judgments if we want to survive -- and it's likely how it will continue to be governed. And that is the mentality -- in an even more absurd formulation than is typical -- that is likely to lead the Congress yet again to comply this week with the President's orders in full. * * * * *
Yesterday, Andrew Sullivan noted the post I wrote this weekend regarding why telecom immunity is so destructive and corrupt, but Sullivan then wrote: "In the period after 9/11 in question, I do not find these cardinal sins. Venial maybe." Had this surveillance lawbreaking been confined to the weeks or even months after the 9/11 attack, that might be true. Even EFF's lead counsel, Cindy Cohn, said that had the illegal spying occurred only during that time period, it's unlikely that even they would have objected and sued.
But the reality is that the Government and the telecoms broke the law not for weeks or months, but for years -- well into 2007. They continued to do so even after the NYT exposed what they were doing. They could have brought their spying activities into a legal framework at any time, but chose instead to spy on Americans in exactly the way our laws criminalize. Manifestly, then, national security had nothing to do with why they did it. The Bush administration chose to do so because they wanted to eavesdrop without oversight and to establish that neither Congress nor the courts can limit what the President does, and telecoms did not want to jeopardize the massive government surveillance contracts they have by refusing. This was rampant, deliberate lawbreaking that lasted for many years. We either live under the rule of law or we don't. In a New York Times Op-Ed today jointly written by James Baker and Warren Christopher on the need to amend the War Powers Act to clarify Congress' role when the President commits troops to battle, they point out: "the 1973 statute has been regularly ignored -- a situation that undermines the rule of law, the centerpiece of American democracy." The Bush administration and the telecoms trampled upon that "centerpiece of American democracy," and the Democratic-led Congress is about to do the same.
A quite good Editorial in the NYT this morning -- entitled "Compromising the Constitution" -- notes that the real effects of this FISA bill are to make it "much easier to spy on Americans at home, reduce the courts' powers and grant immunity to the companies that turned over Americans' private communications without a warrant." And: "The real reason this bill exists is because Mr. Bush decided after 9/11 that he was above the law." Those who support this bill, by definition, support both warrantless eavesdropping on Americans and the right of the President and private corporations to break our laws with impunity. As the NYT Editorial puts it:
Proponents of the FISA deal say companies should not be "punished" for cooperating with the government. That's Washington-speak for a cover-up. The purpose of withholding immunity is not to punish but to preserve the only chance of unearthing the details of Mr. Bush's outlaw eavesdropping. Only a few senators, by the way, know just what those companies did.
Restoring some of the protections taken away by an earlier law while creating new loopholes in the Constitution is not a compromise. It is a failure of leadership.
The political class has made as clear as can be that it is intent on supporting a limitless erosion of core constitutional liberties and the creation of a two-tiered justice system that exempts the political elite from the rule of law. Neither the "opposition party" nor the establishment media are the slightest bit interested in, or capable of, stopping any of that. Battling against that is the responsibility of citizens who find these political trends dangerous and intolerable.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.