Anything sound familiar?

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation....

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world....

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them....

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries....

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
...

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Over two centuries ago, colonial America reacted to the abuses of their leaders in the most drastic and violent way open to them, by taking up arms against their oppressors. Revolution is not to be taken lightly, and wasn't by those men and women. Perhaps recognizing within themselves the potential to create a grand experiment that would alter world history, or perhaps just fed up with the status quo, they acted.

And out of their actions was built something indescribably profound. A simple piece of paper that recognized both the strengthens and the foibles of human beings, that allowed the best of what's in us to flourish, while providing a stop against the natural tendency of those in power to abuse their rule. The philosophy of these men and women when approaching governance was best summed up by John Adams:

"There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty."

The shred of paper that grew out of the experience of colonization, oppression, violence and revolution has proven remarkably durable over these 219 years. It's weathered foreign war, civil war, four presidential assassinations, two presidential impeachments, and many a misguided Congress. It's also been supported by some extraordinarily brave men and women who served in that body and who elevated it.

In response to the revelations that a president had violated the 4th amendments stricture against "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures," the first branch of government stood up to that president, led by Senator Frank Church:

Personal privacy is protected because it is essential to liberty and the pursuit of happiness. Our Constitution checks the power of Government for purposes of protecting the rights of individuals, in order that all our citizens may live in a free and decent society. Unlike totalitarian states, we do not believe that any government has a monopoly on truth.

When government infringes those right instead of nurturing and protecting them, the injury spreads far beyond the particular citizens targeted to untold numbers of other Americans who may be intimidated...

The natural tendency of government is toward abuse of power. Men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty.

Our constitutional system guards against this tendency. It establishes many different checks upon power. It is those wise restraints which keep men free. In the field of intelligence those restraints have too often been ignored....

The United States must not adopt the tactics of the enemy. Means are important, as ends. Crisis makes it tempting to ignore the wise restraints that make men free. But each time we do so, each time the means we use are wrong, our inner strength, the strength which makes us free, is lessened.

And thus the Foreign Intelligence Surveillance Act, the sole and exclusive means by which the government could conduct surveillance against Americans, was born. How ironic that the major battle against what is undoubtedly the worst and most dangerous executive this nation has ever seen would be over this, and that this Congress would so abjectly fail this test their forebearers set. They try to dangle in front of us the shiny object of a "new" law that has been in effect for thirty years as some great achievement, hoping that we won't notice that with their other hand, they are vastly expanding the president's power to ignore the 4th Amendment of that remarkable piece of paper.

The most important political office is that of private citizen.
-Louis D. Brandeis

Don't let them get away with it. This terrible law will almost certainly pass, but don't let it happen quietly. And don't let them think they got away with their ruse. Celebrate your 4th of July by finding your nearest Senator. Remind them that they work for you. Remind them that their oath of office admonishes them not to "support and defend my next election campaign," but says "support and defend the Constitution."

While you are doing so, give thanks to an incredible Patriot, Christy Hardin Smith, who has marshalled her vast organizing skills for a campaign to make doing your job as a private citizen easier. Click on this link to take action.

Rasmussen recently polled on wiretapping, finding that "Voters appear satisfied that a proper balance has been struck between individual rights and national security."

The vast majority--75%--also think that they never would be the target of a government phone wiretap. Of course, the problem with the Bush/Cheney administration's warrantless surveillance program is that there's apparently no real targeting, either of collected phone calls swept up, or other private data they've been collecting. That means just about anybody can get caught up in the massive vacuuming of data.

Consider the case of Stephen Sprouse and Kristin Douglas, highlighted last year in an episode of Frontline:

HEDRICK SMITH, Correspondent: [voice-over] Las Vegas. It was the week before New Year's 2004 when Stephen Sprouse and Kristin Douglas flew in from Kansas City to get married.

KRISTIN DOUGLAS, Las Vegas Tourist: Stephen always wanted to get married in Vegas. I mean, that was sort of a joke.

HEDRICK SMITH: Stephen and Kristin exchanged vows in front of friends, family-

"ELVIS": Ladies and gentlemen, it is show time!

HEDRICK SMITH: -and Elvis.

STEPHEN SPROUSE, Las Vegas Tourist: You come in and you're thinking, "OK, I'm going to get married." And you know, Elvis comes down the aisle. Then you're kind of up there, and all of a sudden, you're thinking, "Wow, I'm really getting married." Then they're doing the vows, and you're, like, "Oh, this is for real."

WEDDING OFFICIAL: You may kiss your bride.

KRISTIN DOUGLAS: And then you're singing "Viva Las Vegas."

STEPHEN SPROUSE: And then you're singing "Viva Las Vegas."

HEDRICK SMITH: But in fact, things in Vegas weren't looking so good. There was disturbing news.

BILL YOUNG, Fmr. Sheriff, Clark County, Nevada: Tom Ridge was on national TV, and you know, he said, "Hey, there's three cities that," you know, "we got to really pay attention to- Washington, D.C., New York and Las Vegas." And whew! You know, when that happens, then the whole eyes of the world come on you.
....
STEPHEN SPROUSE: When you were out there, that's when you kind of notice that you don't see any of the planes flying and you see helicopters off in the distance, kind of circling around. That's when it kind of seemed a little weird, a little odd.

KRISTIN DOUGLAS: Yeah. It was a little creepy.

STEPHEN SPROUSE: Yeah.

HEDRICK SMITH: [voice-over] The clock was ticking, just 11 days until New Year's. They needed to act fast.
....
HEDRICK SMITH: [voice-over] Long after the celebrations were over, Stephen Sprouse and Kristin Douglas received the disquieting news that they had been swept up in that FBI data dragnet.

[on camera] You found out afterwards that all the hotel records were collected. What went through your head when you heard that?

KRISTIN DOUGLAS: They have no reason to be looking at me. I don't think that I've done anything to raise any suspicion. So I mean, just being in Las Vegas on New Year's shouldn't be enough for them to say, "Well, you know, she might be a terrorist."

ELLEN KNOWLTON, FBI Chief, Las Vegas, 2002-06: I just tell people that we made every effort to safeguard the privacy of everyone whose records were accessed. There was no breach. The information was closely safeguarded.

HEDRICK SMITH: [voice-over] The FBI says it held all the data from Vegas for more than two years but has now destroyed it all.

STEPHEN SPROUSE: I work with data. I mean, you know, if it's on the computer, it's not really ever gone. It's on a tape. It's on a back-up. It's on a drive somewhere.

HEDRICK SMITH: A more fundamental question confronts all of us. The 4th Amendment protects us against unreasonable search and seizure without probable cause. So does the strategy of prevention collide with the Constitution?

[on camera] When the government is doing this kind of data mining, has it moved from individualized suspicion, getting an individual warrant, to generalized suspicion, to check everybody to find out who are the bad guys?

PETER SWIRE, White House Privacy Counsel, 1999-01: Yeah. Check everybody. Everybody's a suspect. Everybody's phone records, everybody's email is subject to government scrutiny. And if you're good, we won't bother you, and if you look a little strange, then you might get on a watch list.

HEDRICK SMITH: Isn't that a huge change in Anglo-Saxon law? I mean, Anglo-Saxon law is based on "Get a warrant." The 4th Amendment is based on individual suspicion.

PETER SWIRE: Right. General warrants was part of the reason for the American Revolution. It was that the king's agent could go in and search a house everywhere, search a whole neighborhood with one warrant. And the Boston people said, "We don't like that. We'll have a tea party. We'll fight you." We said no.

"We said no."

Say no now. Blue America has set up two great tools for you to use to do just that. The first is a "Whip Count" tool that  

allows you to directly contact Senators to tell them to stand up for the rule of law and vote in favor of the Dodd-Feingold-Leahy amendment.  (That's S.A.5064 to H.R. 6304 which will come up for a vote on July 8th, 2008.)  Not only will this tool help you phone your Senators -- including connecting your call -- but it also gives us the ability to track positions on FISA given your input on what you ascertain during your conversations.

The second will help you find out where your Senators are during this recess, so that you can use it to find out if they're near you to set up a meeting or attend a public event. Talk to your Senators. Ask them to read the bill, and use the Blue America tools to track responses and events.

Celebrate the 4th of July in a manner that would make our founders proud.

Back in March, I wrote a story laying out the rationale for drawing out a FISA fight that everyone expected us eventually to lose. ("We don't have the votes!") The basic premise:

Every time Congressional Dems actually slow down and take stock of the situation -- from Senator Chris Dodd's brave (and lonely and seemingly futile) stand, to the cautious maneuvering of House Dems today -- new revelations arise that should make all Americans who value our freedoms glad they did.

Well, the House stopped slowing down recently, and have handed an all-too-willing Senate (which has all along been more willing than the House, it must be noted) a bill that puts retroactive immunity for the pay-for-play telecom spies back on the table. Now it's back in the Senate's lap, with a few brave souls preparing to do what they can to keep the train wreck in slow motion.

Is that worth doing? Sure. And for all the same reasons, which perhaps deserve mention again as Senators prepare to vote on this mess when they come back to work next week. And it couldn't hurt for you to be armed with this list if you see your Senators or Representatives at your local Fourth of July festivities.

So, over the years since we first learned of the Bush domestic spying scheme, and in the six month reprieve that the extended FISA fight has given us, what have we learned about the security and surveillance practices of the "administration" that we supposedly should trust with these new powers?

• We learned that:

  A U.S. government office in Quantico, Virginia, has direct, high-speed access to a major wireless carrier's systems, exposing customers' voice calls, data packets and physical movements to uncontrolled surveillance

• We learned that they resurrected and hid Total Information Awareness:

  Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans' privacy, even after the Sept. 11 terrorist attacks.

  But the data-sifting effort didn't disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.

• We learned that all the lines are being erased, with the national security apparatus monitoring domestic data traffic and the FBI becoming a foreign intelligence outfit.

• We've learned that the FBI has committed massive abuses of its powers::

  The Justice Department's inspector general told a committee of angry House members yesterday that the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here.

• We've learned that the FBI still gets it wrong pretty often, too:

  A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

• And of course, we've not forgotten the good, old "No-Fly List"

  The Transportation Security Administration's secret no-fly list includes some very unlikely terror suspects -- Bolivian President Evo Morales, 14 of the 19 dead 9/11 hijackers, and every single person named "Robert Johnson."

• We learned that the argument still frequently made that foreign-to-foreign phone calls that pass through the U.S. can't be monitored without the PAA and the new FISA changes, and which are constantly pointed to as the proximate cause of the deaths of American soldiers was... a lie:

  The fight in Congress and the big push for expanded wiretapping powers has nothing to do with intercepting foreign-to-foreign phone calls inside the United States without a court order. In fact, it turns out that the nation's secret wiretapping court is fine with that.

• We learned that the "administration" believes the AUMF rendered the fourth amendment a nullity:

  ... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001).

• We learned that that might not even matter, since the head of the NSA is dead certain there's no probable cause standard in the fourth amendment, anyway:

• We learned that the DOJ may be using your cell phone to track your physical movements without a warrant, or any court oversight.

• We learned that the "administration" says it can read your mail without a warrant:

  President Bush quietly has claimed sweeping new powers to open Americans' mail without a judge's warrant.

  Bush asserted the new authority Dec. 20 after signing legislation that overhauls some postal regulations. He then issued a "signing statement" that declared his right to open mail under emergency conditions, contrary to existing law and contradicting the bill he had just signed, according to experts who have reviewed it.

  A White House spokeswoman disputed claims that the move gives Bush any new powers, saying the Constitution allows such searches.

• We learned that racial profiling is back at the FBI, and this time, it's a-ok:

  Nearly 40 years ago, the FBI was roundly criticized for investigating Americans without evidence they had broken any laws. Now, critics fear the FBI may be gearing up to do it again.

  Tentative Justice Department guidelines, to be released later this summer, would let agents investigate people whose backgrounds — and potentially their race or ethnicity — match the traits of terrorists.

  Such profiling faintly echoes the FBI's now-defunct COINTELPRO, an operation under Director J. Edgar Hoover in the 1950s and 1960s to monitor and disrupt groups with communist and socialist ties.

  Before it was shut down in 1971, the domestic spying operation — formally known as Counterintelligence Programs — had expanded to include civil rights groups, anti-war activists, the Ku Klux Klan, state legislators and journalists.

  Among the FBI's targets were Martin Luther King Jr., Malcolm X, and John Lennon, along with members of black extremist groups, Fidel Castro sympathizers and student protesters.

And of course, all of these unchecked expansions of executive spying power are occurring in a context in which the Congress has found itself almost completely without power to compel any compliance at all with its most serious oversight responsibilities. Despite the assurances they're scrambling to give that all will be well and closely-watched, the reality is that this Congress has been unwilling and/or unable to exercise any serious control over the executive in the way it interprets or implements these powers, even when such implementation is clearly outside the law. In fact, it is precisely because the implementation was outside the law that we're even having this debate, and incredibly, it's a debate about retroactively legalizing it.

In the face of all of these absurdities, rely on the Washington Post to tell us that opposition to this bill at this time -- in the hands of this president, too -- is inherently unreasonable:

Reasonable people can differ on the issue of immunity, but the FISA debate hasn't been overpopulated by reasonable people. As a result, the immunity issue has assumed a significance in the legislative process that far exceeds its underlying importance. We understand the heartfelt arguments of those who believe that closing the courthouse door to Americans who claim the warrantless wiretapping invaded their privacy rights represents "an abandonment of the rule of law," as Sen. Christopher J. Dodd (D-Conn.) said last month.

The editorial actually has passages in it that are considerably worse, and some which are outright false. For example, the assertion that "no one can claim with certainty that his or her communications were monitored." Untrue, as the parties in the Al-Haramain case (as well as that class of people in possession of eyeballs used for reading) well know, but the Washington Post apparently does not.

But if it's true, as the editorial whines, that immunity "is the least -- not the most -- important aspect of the complex FISA debate," you couldn't tell from the traditional media coverage of that debate. Crocodile tears from the Post editorial board are no substitute for the media's missed opportunity to discuss those "most important" aspects of the complex FISA debate. But they've been AWOL on those issues, and it took bloggers latching onto the most politically explosive of the issues to even slow the runaway train long enough for the more important issues -- and I agree there are plenty of them -- to even get a second look.

The Post, of course, would have you flush that opportunity down the toilet in the mad rush to inscribe the mistakes being made on those more important issues on the books. How "reasonable," indeed.

Unchecked expansion of spying powers. A complete lack of enforceability of Congressional oversight. A lapdog press that actually can't wait to cheerlead for the collapse of all controls.

Has there been any point in our history when it's made less sense for the Congress to cede even broader powers to the executive?

In one last, great irony, you and your representatives in Congress are given one last chance to think this over: the Independence Day holiday. I urge you to think more deeply and seriously about it than the Washington Post has.

Yesterday 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. EFF has the decision, which is a clear a repudiation of what the Democratic Congress of the United States is doing with the FISA Amendments Act as any post any left blogger has written.

First, the court's holding, as described by EFF:

The good news is that the Court held that "FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims." The Court rejected the expansive view of executive power promoted by the government, holding that the President's authorities under Article II of the Constitution do not give him the power to overrule FISA.

The bad news is that "FISA nonetheless does not appear to provide plaintiffs a viable remedy unless they can show that they are 'aggrieved persons' within the meaning of FISA." The Court ultimately found that Al Haramain had not provided a sufficient showing that they were "aggrieved," but gave permission to re-file the complaint with more information.

The state secrets privilege is the Catch-22 of these cases--how can an aggrieved person prove that they are aggrieved if the necessary documents are unavailable because they are classified? On the other hand, how can the telcos defend themselves if the information they require to exonerate them is also classified? This decision, in part, addresses that.

How does this effect FISA in the short term? EFF argues:

[S]o long as the telecom plaintiffs have unclassified evidence tending to establish that they were surveilled--which exists, for example, in Hepting v. AT&T, via AT&T documents provided by whistleblower Mark Klein--FISA's procedures kick into effect and the Bush Administration cannot unilaterally get rid of the telecom cases pursuant to the state secret privilege.

Moreover, this ruling would allow the telecoms to present their defenses. A major talking point for telecom apologists is that the the telcos were unfairly prevented from mounting a defense by the state secret privilege. By holding that FISA's existing evidence security procedures preempt the state secrets privilege, the decision belies telecom immunity proponents' claims that the litigation was unfair because the privilege prevented the telecoms from defending themselves. It also refutes claims that the lawsuits against the telecoms weren't going to go anywhere anyway.

At the very least, this ruling should compel our Senate to take the step of passing the Bingaman amendment to the FAA to push this mess of into the next Congress under a different president.

But, almost more importantly, this opinion should shame a Democratic Congress which has been absolutely negligent in its duty of oversight over the executive.

Walker has a masterful discussion of the legislative history of FISA, settling the question once and for all that the intent of the Church Commission, the intent of the SSCI in developing this legislation, and the intent of the Congress which passed it was to establish FISA as the exclusive means of lawful surveillance, as well as the separation of powers and limits of executive power in domestic surveillance.

Of special relevance to the court’s present inquiry, Congress included in the FISA bill a declaration that the FISA regime, together with the Omnibus Crime Control and Safe Streets Act of 1968 codified at chapter 119 of Title 18 of the United States Code, 18 USC §§ 2510-22 ("Title III"), were to be the "exclusive means" by which domestic electronic surveillance for national security purposes could be conducted:

procedures 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.

18 USC § 2511(2)(f). This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.

The Report of the Senate Select Committee on Intelligence stated that the FISA bill’s "exclusive means" statement "puts to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances in the United States outside of the procedures contained in chapters 119 and 120."

The argument put forth by Democrats--particularly Diane Feinstein and Nancy Pelosi--who are supporting this bill that it is so important because of its exclusivity provisions are only blowing so much smoke. That part of the bill is meaningless, and any slim good it might do is completely superseded by the expansion of executive power it allows.

Frank Church took care of exclusivity 30 years ago, and for good reason. Church and his Congress, unlike this Congress, understood the danger of an unchecked executive and to reestablish the checks and balances supposed to be inherent in the Constitution. Judge Walker:

In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner:

In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties.  This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.

H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near- total control over whether the fact of unlawful surveillance could be protected as a secret. [emphasis mine]

Finally,

The impetus for the enactment of FISA was Congressional concern about warrantless wiretapping of United States citizens conducted under a justification of inherent presidential authority under Article II. Congress squarely challenged and explicitly sought to prohibit warrantless wiretapping by the executive branch by means of FISA, as FISA’s legislative history amply documented.

In contrast, the impetus for the enactment of the FISA Amendments Act by this Congress appears to be to enable the Bush administration's efforts to hide its unlawful surveillance by granting amnesty to the telecommunication companies and thus foreclosing perhaps the only avenue open to us to finding out what has been done by this administration in our name--the existing civil cases against the telcos.

The supporters of this bill endorse that unlawful surveillance and its cover up. The supporters of this bill endorse the codification of that illegal activity, the expansion of those executive powers rejected by a more forceful and principled Congress of thirty years ago. They would do well to remember that no man is bigger than our Constitution. No political party. No political issue. No election.

Proving that you can both support a candidate and hold him or her accountable, a major effort by grassroots activists within the Obama campaign is asking for his support in opposing the bad FISA Amendments Act, and particularly, telco amnesty.

A grassroots group of activists has been organizing on MyBo, Obama's official social networking portal, to protest the Senator's recent decision to back controversial legislation granting the President more spying powers. The effort hit a big milestone on Tuesday afternoon: It is now the largest self-organized group on Obama's website, topping networks that were launched over a year ago. The spying protest, "Senator Obama - Please Vote NO on Telecom Immunity – Get FISA Right," launched last week. (See Obama Network Organizes and Revolts Over Spying, The Nation.)

Membership spiked to about 8,900 people on Tuesday, edging out a student group with roughly 8,600 members, and one organizer estimated that the growth rate reached a rapid four percent during the daytime. The group initially spread through the Obama network, since the site's platform instantly connects members through a dedicated email listserve. On Monday, for example, over 200 emails shot across the wire, reaching the roughly 2,300 members who opted to receive individual messages. The exchanges ranged from policy debates, like whether immunity was acceptable if the telephone companies acted in good faith, to organizing strategies, such as promoting the group on sharing sites like Digg. Then some activists open-sourced the project, creating a wiki-hub for additional actions -- from calling Obama's office to urging Keith Olbermann to promote the group -- and launched partner groups on other sites like Facebook.

The group's effort has also hit the NYT.

This effort shows two things: the always-expanding power of the Internet for organizing. We knew at the outset what a powerful tool the tubes were going to present, but the new iterations that people create on a daily basis is fantastic (and another reason for the Net Neutrality fight to be rejoined full force when we have our new president and Congress).

It also shows that you can fully support Barack Obama and still disagree with him on issues. That being a supporter, particularly a netroots supporter, doesn't mean setting aside your own beliefs and principles. We're not supposed to just shut up when we disagree--if we do, we're setting a very bad precedent for our role in a potential Obama presidency. I keep going back to the Louis Brandeis quote:

The most important political office is that of private citizen.
-Louis D. Brandeis

You can support a candidate and fulfill your political office of a private citizen at the same time. A huge number of Barack Obama's supporters on his site are doing just that.

Sen. Feingold has a video message for everyone who's been calling and writing about FISA:

The outpouring of support from you and across the country, in letters and e-mails and phone calls and the blogs has been absolutely fantastic. It really made a difference, as we mounted a challenge this week that almost nobody thought could work. We did stop this thing for now -- it is delayed until after the July 4th weekend.

I teased some of my colleagues...I said, we can celebrate the constitution on July 4th, and when we come back maybe you'll decide not to tear it up....I'm deeply grateful for your support.

Senators Dodd and Feingold have managed to stop this thing since last December, against all odds, and with your help. It doesn't seem like we'll be able to stop it now, but that's what it looked like every other time. So keep at it. Call your Senators. Go to the 4th of July parades this weekend that they'll surely be walking in, and take the message to them. Meet with them in person and ask them to read the bill.

Take Sen. Feingold's lead and tell them to celebrate Independece Day by resolving to fulfill their oath do support and defend the Constitution.

Tell them to vote yes on the Feingold/Dodd amendment to strip the immunity provision from the bill and yes on the Bingaman amendment to require further review before immunity is granted. Tell them to fulfill their oath do support and defend the Constitution.

Obama has my vote. It's embarrassing that I have to preface my diary this way, because many have suggested that by criticizing Obama, I'm saying McCain is better.

Others wonder, why don't I "grow the hell up" or even "Shut the #@$% UP!!!"? Nobody's perfect, after all.

Of course that's true. But I don't have to trade in my independent, critical thinking to support a candidate. Why should I need to stifle my opinions, on a blog of all places, to be a good Democrat?

Here's why I bother criticizing our nominee for president:

Something you may be used to hearing about a Democratic candidate in other states, but here in Utah, this is truly a first.  We have but one Democrat in our federal delegation, and on FISA, Matheson has proven himself a true Bush Dog.  Now it appears a new candidate is ready to step up and show true leadership on a key issue.

Morgan is the Democratic candidate for Utah's first congressional district, a seat currently held by school voucher supporting, "drill here, drill now" parroting, warrantless wiretap backing Rob Bishop.  In addition to the 2/1 odds Morgan faces unseating the corporate funded incumbent, he also faces a battle with in-state leadership as a result of Rep. Jim Matheson, our only sitting Democrat, and faithful Blue Dog.

If the government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means 'to declare that the government may commit crimes in order to secure the conviction of a private criminal' would bring terrible retribution.
[From dissenting opinion in Olmstead vs. United States, in which the court upheld the use of wiretaps in a case involving an investigation of bootlegging. Brandeis strongly defended the individual right to privacy from government intrusion.]
-Louis D. Brandeis, 1928

That's what Congress is poised to do, "to declare that the government may commit crimes in order to secure the conviction of a private criminal" with passage of the FISA Amendments Act. Except, of course, that they haven't even secured any convictions through the warrantless surveillance, at least not that they've made public--and believe me, if they had any convictions to justify the program, we'd have heard about it.

The Congress is about to severely expand the already too-extensive authority of the president in surveilling the citizens of this nation. In doing so, it is ignoring the fact that the government has become a law breaker and made the telcos accessories to the crimes.

Which brings us to the next words of wisdom from Justice Brandeis:

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.
-Louis D. Brandeis, quoted in Other People's Money and How the Bankers Use It (What Publicity Can Do, Ch 5, p. 92) (Frederick A. Stokes Co. ed.)

For the nation to regain any trust in government and respect for the rule of law, we have to know what happened. We need to know what the administration was asking Qwest to do in February of 2001, well before 9/11. We need to know who was targeted in the illegal surveillance program, and we need to know why. "National security" is not an adequate excuse. If it were, the administration and so many in Congress would not be fighting so hard for immunity for the telcos. For one thing, the Foreign Intelligence Surveillance Act already protects private parties who get a certification from the government that their actions are lawful. This provision is utterly unnecessary, unless the information about Americans intercepted, stored, and turned over to the government doesn't fall under the provisions set out in the existing FISA statute.

It's hard to believe that Congress could actually be less curious and more secretive than than the Bush/Cheney administration in trying to keep this information from ever seeing the light of day. Can it really be that they're quaking in their shoes that the Republicans will call them names in the fall so they have no choice but to capitulate? Don't they get that they're going to be attacked anyway, and gutting the Constitution isn't going to be a preventive for that. That seems to be a lesson that they are just not catching on to, despite Democratic wins in 2006 and in special elections this year. If it hasn't occurred to Barack Obama, who's made it as far as securing the nomination for presidency, then I have little hope for the rest of the current crew.

However, there's a tiny glimmer of hope in the fact that not all--and in fact a majority--of Democratic representatives in Congress have opposed retroactive amnesty. Because of that opposition, a real compromise has arisen: Sen. Bingaman has one of the three amendments that will be considered on July 8 when the Senate brings this back up. EFF, who along with the ACLU is representing plaintiffs in these wiretapping cases, has endorsed the amendment:

The Bingaman amendment would prevent Congress from granting immunity in the dark, as described in the press yesterday, by "stay[ing] pending cases against the telecoms and delay[ing] the effective date of any immunity provisions until 90 days after Congress received a report from the inspectors general of the intelligence agencies on the warrantless surveillance program". By placing a temporary hold on immunity and on the litigation until 90 days after the IG Report is submitted to Congress, the simple amendment would give Congress and the American people an opportunity to revisit the issue of telco immunity next year, in light of the audit's findings.

The likelihood of an IG investigation or report by the Bush administration is so minimal as to mean that the decision on immunity would have to happen next year, under a new administration and Congress. It's a good idea. The bad part here is that this amendment has to meet a 60 vote threshold to pass. That threshold is going to be as hard to meet as the simple majority the amnesty stripping amendment will have to achieve. But it does hold out the possibility that these crimes will be examined, and that it can happen with a new president, a new Congress. It's the kind of amendment that could garner support from moderate and conservative Dems and those few moderate Republicans who are really hoping to hold onto their jobs this cycle.

Which is, of course, where we come in.

Again, Justice Brandeis:

The most important political office is that of private citizen.
-Louis D. Brandeis

That means us. Our job here is be the citizens that our elected representatives all too often fail to be. That means holding our representatives, and our nominee, to do their damn job of supporting and defending the Constitution.

One option for fulfilling your duty as a private citizen is Ben Masel's Operation Read the Bill. Print a copy of the bill, find your Senators while they are home during this recess--the 4th of July recess, no less--and ask them if they've done their duty of reading the bill. Ask them if they know that they're about to redefine the term "WMD" to possibly include many weapons that the U.S. military uses. Ask them if they know they are about to cede even more of their power--the power of protecting us, their constituents, from unlawful surveillance--to the executive.

When you're done quizzing them on the bill, ask them to support the Feingold/Dodd amendment to strip immunity from the bill and to support the Bingaman amendment. Ask them to do their job.

As a loyal supporter, as a donor, as a (trying to, anyways) fundraiser, as someone who has been shooting down smears about you at work, amongst friends and family, and anywhere else I hear them, as all of these things, I am writing to you to tell you: You had it right the first time on FISA.  

There have been a plethora of diaries in the past week in regards to Obama's stance on FISA legislation and the backlash that has ensued by the netroots.  Both sides of the argument on how this may or may not be affecting Obama have been at it (including me).  I've had a few thoughts on this issue that I've shared in those diaries, and I'd like to share those now.  I'm sure they're not terribly new, but it's a perspective I'd like to give nonetheless.

Senator Sheldon Whitehouse (D-RI), December 7, 2007:

[L]ook what the Bush Administration does behind our backs when they think no one is looking. For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island's Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified.  Here they are, as accurately as my note taking could reproduce them from the classified documents.  Listen for yourself.  I will read all three, and then discuss each one.

1. An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.

In a nutshell, these three Bush administration legal propositions boil down to this:

1. "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."
2. "I get to determine what my own powers are."
3. "The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is."

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up.

Senator Sheldon Whitehouse (D-RI), June 25, 2008:

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

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.

Whitehouse (D-RI), Yea  

Sheldon Whitehouse believes in Double Secret Exclusivity. He is living in a dream world.

UPDATE: Looking for something to do about it? Your Senators are coming home to wave the flag and march in your hometown July 4th parades. Why not be there to show the colors yourself?

It's a temporary reprieve, not a victory, but Senators Dodd and Feingold have worked with Durbin and Reid to delay the FISA vote until July 8.

Feingold's statement (via e-mail):

"I'm pleased we were able to delay a vote on FISA until after the July 4th holiday instead of having it jammed through. I hope that over the July 4th holiday, Senators will take a closer look at this deeply flawed legislation and understand how it threatens the civil liberties of the American people.

"It is possible to defend this country from terrorists while also protecting the rights and freedoms that define our nation."

Dodd's statement (via e-mail:)

"I’m pleased that consideration of the FISA Amendments Act has been delayed until after the 4th of July recess. I urge my colleagues to take this time to listen to their constituents and consider the dangerous precedent that would be set by granting retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.

"When and if FISA does come back to the Senate floor, I will offer my amendment to strip the retroactive immunity provision out of the bill. I implore my colleagues to support the rule of law and join me in voting against retroactive immunity."

The Feingold/Dodd amendment to strip immunity from the bill will be voted on, as will a couple of other amendments. As of now, I don't have complete information on them.

So here's a fantastic opportunity to talk to your Senators, when they're home for the most patriotic of all holidays, about what this bill means to you as a constitutent. If they're having town meetings, please attend and bring up the bill, or try to schedule individual meetings with them.

And, if you have the time and the ink and the paper available, print a copy of the bill (114 pages, pdf), highlight the salient parts (like the WMD section) and ask them to please read the bill, and then decide if it's really something they want to have on their permanent record as having supported.

It's a longshot, but it's the only one we've got.

There's been some excellent analysis of the FISA bill around the blogosphere. I particularly like Technosailor for a clear, concise, and lay person's view. For the lawyers, and people who've been deep in the weeds on this legislation enough to have a solid grasp of the terminology, Balkinization has featured a series of posts by David Kris, and an excellent summation and response by Marty Lederman. Julian Sanchez has an excellent political overview at The American Prospect, as does Kevin Drum. And it goes without saying, everything of Glenn Greenwald's

They all detail some of the main points, also included on Sen. Feingold's Fact Sheet. Here's a basic summary, but all of the above resources provide the depth of what's really wrong here.

• On retroactive immunity, the bill virtually guarantees it, despite the fig-leaf of a district court review.
• In their infinite wisdom, Hoyer and the negotiators set the bill to sunset in the fall of 2012--just before the next presidential election. This bad bill should not be in effect for that long, and shouldn't be subject to election year politics, again.
• The protections against reverse targeting are inadequte--the guidelines for targeting someone in the U.S. are not subject to judicial review, or the requirement of a court order for that surveillance.
• The bill doesn't prohibit bulk collection--"the collection of all international communications into and out of the U.S. to a whole continent or even the entire world."
• The bill contains a far too broad "exigency" exception to the idea of FISC exclusivity--the Attorney General or DNI can certify that they don't have time to get a court order.
• Even if the FISC determines after that fact that the surveillance violated the law, the government can still keep and use any of the information it obtains under those illegal warrants.
• The bill doesn't provide additional checks and balances for Americans at home whose international communications are obtained because they are communicating with someone overseas.

All that said, here's my favorite provision included in the legislation [warning, that's a 114 page pdf], Sec. 110, part 4 of Title I (p. 81):

SEC. 110. WEAPONS OF MASS DESTRUCTION.

DEFINITIONS.—

[snip]

(4) WEAPON OF MASS DESTRUCTION.—Such section 101 is amended by adding at the end the following new subsection:
‘‘(p) ‘Weapon of mass destruction’ means—
‘‘(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
‘‘(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
‘‘(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
‘‘(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.’’.

I wonder how many Senators blithely casting their lot with this bill realize that they're redefining warfare.

There's every chance that the immunity provisions in the bill are unconstitutional. But Congress doesn't know because no Judiciary Committee hearings were held to vet that portion of the bill. Nor were any Defense Committee hearings held to vet this WMD provision.

That's what happens when the oversight muscle of Congress becomes so atrophed. They don't even conduct oversight of themselves. And they don't know what they're voting for.

However, it looks as though Senate leadership is trying to delay the vote on the bill until after recess.

Durbin, D-Ill., told reporters Thursday that Democratic leaders plan to wait until July take up the bill, which rewrites the Foreign Intelligence Surveillance Act, or FISA. Durbin said that Sen. Russ Feingold, D-Wis., a leading opponent of the bill, has asked that the Senate delay consideration of the bill.

Perhaps our Senators can take this opportunity to spend some time actually reading what they're going to be voting on.

Update: The link to Sen. Feingold's fact sheet was an old one. It has been updated with the correct link.

While our rights are steadily eroded in the halls of Congress, the minions of fascism have been very busy this month on my local suburban streets. Their little trucks have been everywhere, administering to the telco infrastructure like bees to a well flowered meadow. Verizon and Optonline are the two big providers in my area, and if I was supposed to think that whatever they were doing over the last few weeks to our local wires boded any kind of well for me and mine, sorry to say but that wasn't going to happen.

But then Thor decided he'd had about enough of this.

In a reversal of previous policy statements, from October, 2007 and January, 2008, and again in February, 2008, Barack Obama now says telco amnesty just isn't that important. Greg Sargent:

Asked specifically why he's supporting the current FISA bill when he'd promised months ago to support a filibuster of an earlier version of the bill, Obama suggested flat out that "national security" overrides the question of telecom immunity... It's true that Obama says mitigating things like we need to be "watching the watchers." But here's the key quote from him:

"The bill has changed. So I don't think the security threats have changed, I think the security threats are similar. My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people."

Obama's line on national security here seems to be affirmation of something that many understood already: That he will support the bill even if telecom immunity isn't stripped from it, despite his promise to try to get immunity out of the legislation. If the issue of telecom immunity doesn't override national security, he'll of course vote for the bill with or without it.

Not that telco amnesty and national security really have anything to do with each other, or that this FISA bill actually does make us safer. It's disturbing, to say the least, to see that Senator Obama has adopted the talking points of Steny Hoyer and the right on the issue.

Despite this setback, hopefully Biden (D-DE) - Boxer (D-CA) - Brown (D-OH) - Cantwell (D-WA) - Dodd (D-CT) - Durbin (D-IL) - Feingold (D-WI) - Harkin (D-IA) - Kerry (D-MA) - Lautenberg (D-NJ) - Leahy (D-VT) - Menendez (D-NJ) - Sanders (I-VT) - Schumer (D-NY) - Wyden (D-OR) will maintain their opposition to this terrible bill and continue their efforts to, at a minimum, strip the Bush/Cheney/AT&T amnesty from it.

Here's how some of the editorial boards around the country are talking about FISA.

The Oregonian, last week...

After journalists reported that the Justice Department had simply ignored the warrant requirement and had persuaded a set of telephone companies to quietly turn over their phone records to the government, a wave of privacy lawsuits against the telecom companies followed. With those pending, the White House has insisted that the telephone companies be protected from legal liability for helping the executive branch avoid complying with the law between September 2001 and January 2007.

On this point, House and Senate Democrats caved. The president won the legal immunity he sought in exchange for agreeing to tack some domestic spending bills on to his war appropriations bill. His concessions were minor: Congressional Democrats surrendered too much. The phone companies and their lobbyists are ecstatic. And Americans won't get the chance to learn what information the administration might have collected about their telephone and e-mail habits.

and today:

Possibly, of course, everything the Bush administration ever did, dropping in on all those phone calls without court order, was entirely legal. If the Senate Democrats cave the way the House Democrats did, we'll never know.

Which is, of course, exactly the point.

The Connecticut Post:

The basis for opposing this bill is simple: The United States is not a tyranny. The president, even in times of emergency, must follow the law. And everyone, including corporations, even when asked by the government, must themselves uphold the law....

[T]he bill before the Senate would pre-empt the debate, and declare the companies' actions beyond the power of the courts.

That, quite simply, is not how we do things here. Dodd was smart enough to know it when he was running for president, even if most of his fellow Democrats did not. He promised to do what he could to see that the retroactive immunity clause was stripped from the otherwise necessary legislation. (Incidentally, Sen. Barack Obama made a similar pledge.)

Maybe it wouldn't be enough, maybe the bill would go through anyway, after which President Bush would sign it posthaste. But Dodd — and Obama — should try to stop it. The law has to mean something. The executive branch can't simply direct a person or company to break laws — that's the stuff of tyrannies. And a promise, too, should mean something. Dodd must fight this bill with all he has.

The Seattle PI:

The Dems comfort themselves by saying the law requires warrants from FISA courts. Except that the 1978 FISA law already gave the government 72 hours to do so. They can spy on us for a week without a warrant. Worse yet, the bill legitimizes the administration's spying program.

Sen. John McCain supports warrantless spying and voted in favor of granting telecoms immunity in February. Heck, he loves telecoms -- he keeps hiring their lobbyists on his staff. And Sen. Barack Obama, who approves of the compromise, said that as president, he would "monitor the program." Come again, sir? The last thing we need is another "just trust me" president. We need a return to checks and balances. Obama also said he'll try to strip the immunity language out of the bill, but how effective will he be, given the House's overwhelming approval and the fact that the president vowed to veto any version of the bill that didn't let telecoms off the hook?

In this case, both parties have failed us.

The Philadelphia Enquirer:

The cover-up is nearly complete. With congressional approval, the Bush administration's warrantless eavesdropping on Americans' overseas phone calls and e-mail for nearly six years will be spared the third-degree treatment by any judge or jury.

At the same time, Bush or his successor would have virtual free rein to continue the massive antiterror surveillance sweeps of communications to and from this country.

Whatever the risk from another terror attack, Americans' privacy would be the assured casualty from these antiterror tactics....

It's incredible to hear Democrats try to justify their capitulation on grounds that they forced Bush to accept an additional $95 billion worth of domestic spending. Unemployment insurance and higher-education benefits for veterans, great stuff. But since when is it right to horse-trade over the cherished, constitutional right to privacy?

There's still time for the Senate to stand up for the Constitution and reject this deal.

The Albany Times Union:

The revised surveillance law approved last week by the House is good news for the telecommunications companies that are facing lawsuits from customers over breaches of privacy. But it provides scant assurances to Americans that their privacy will be respected in the future.

The Senate must not allow itself to be rushed into signing on to the House version before adjourning. There is too much at stake to act in haste. At the very least, the Senate should fine-tune the House measure to safeguard basic liberties....

THE ISSUE: The House approves new legislation on government spying.

THE STAKES: The Senate must fashion a far better version.

And even the insider CQ Politics:

Democrats want to remove the issue from the fall campaign, and Republicans rarely miss an opportunity to hyperventilate over scary things, for which fewer civil liberties seems to be the prescription. Democrats, including ones who should know better, capitulated in fear of being blamed for not doing enough to stop a terrorist attack because of an overly developed concern for civil libertarian niceties.

The legislation is bad enough. The reasons people offer for supporting it would be embarrassing, but for the fact that few people are paying much attention, and for the fact that the attentive few will have short memories. However, the legislation is too important to be regarded as a mere political bargaining chip. It is the most ambitious legislation of its kind in nearly 30 years, and the political calculus that it won’t matter that much in the end underestimates the extent of its flaws....

Given these defects, it is little consolation to ordinary Americans that Congress gets some additional opportunity to look over the shoulder of the executive branch.

Equally unsatisfying is Obama’s closing argument in support of the bill. His promise is that "as president, I will carefully monitor the program." No less than the congressional oversight promise, this promise misses the point of the constitutional guarantee of civil liberties protected under the rule of law.

Good laws are ones designed to withstand bad rulers. It is not enough that candidates for the presidency promise to be good. I would prefer to put my bet on good laws.

All excellent talking point for when you call your Senators. Special target Senators below the fold. Particularly Diane Feinstein, who clearly has a warped vision of what this bill does.

Sen. Reid has announced opposition:

It is a position that puts the Democratic Senate leader at odds with his own party's presumptive presidential nominee, Barack Obama, who also has pledged to fight for the removal of immunity but will vote yes on the final package.

"I am not going to vote for the FISA bill," said the Nevada Democrat. "There are people, Mr. President, who have worked on this FISA matter for three months or more and again the administration worked with them. Did they, on the FISA bill, move enough to make me vote for the bill? The answer is no."

Now Sen. Schumer has joined in saying "no":

Chuck Schumer's spokesman tells us that he's going to oppose the current version of the Foreign Intelligence Surveillance Act legislation, which immunizes telcom companies for past implementation of Bush's requests and expands the government's capacity to surveil without court approval.

If Schumer backs an effort to remove the immunity provisions, that could be a big deal. Obama has come out against those provisions, but Schumer is a strategic signal caller in the Senate. The key question: Will Schumer support a filibuster on removing immunity from the bill?

There's growing opposition among Senators with positions of leadership. Will Hillary Clinton join the opposition? More importantly, will Barack Obama?

Not without some pushing. You know what to do with the numbers below the fold.

Toll-free numbers for Congress. Ask to be connected to your Senator:

1 (800) 828 - 0498
1 (800) 459 - 1887
1 (800) 614 - 2803
1 (866) 340 - 9281
1 (866) 338 - 1015
1 (877) 851 - 6437