Rep. Mark Udall, running for Senate in Colorado, is among the House Dems who recently voted for the FISA bill.
That by itself isn't particularly remarkable. It's symptomatic of running for higher office, just as the votes of Bob Menendez and Sherrod Brown for the heinous Military Commissions Act was. They both voted for it, and almost immediately after winning announced how deeply they regretted it and that they'd be working to repeal it as soon as possible.
The MCA, of course, remains on the books. Its repeal never stood a chance so long as George W. Bush held his veto crayon. And both Brown and Menendez knew that when they said it.
But that's (political) life. It is what it is, and we say so out loud even though it's one of those dirty-but-open little secrets that Serious PeopleTM don't talk about. Actually, that's probably why we say so out loud.
So now Mark Udall finds himself in the same position. And just as Brown and Menendez bet it all on their promises to repeal, Udall now bets it all on committing the next administration -- yet to be elected, by the way -- to extensive criminal investigations penetrating into the very heart of years and years of executive operations.
Well, he's not really betting it all on it. There are literally hundreds of other critical issues and as many equally critical reasons why you absolutely must vote for him if you're a Colorado voter, despite anything that could possibly be said about FISA. And he's just one of dozens of Democrats running for higher office or for reelection to their current offices in November about whom I'd say the exact same thing. But FISA and the core issues underlying it are getting the same exact same glossing over from those other candidates as we're about to read from Udall. And all of the people saying it are actually rather hoping you won't notice if they eventually pick up their chips and drop the wager entirely.
So this is not important because Mark Udall said it. Mark Udall is just the vector we have under the microscope at the moment, and just as with Menendez and Brown, we are better off by far agreeing to live with the dirty little secret and electing him. What's important is that this letter or one like it is going out to millions of concerned constituents, in hundreds of districts around the country. You may be expecting one, yourself. I think you deserve a fuller discussion of the answers you're being offered. Then I think you should go out and vote for Udall and/or your local Democrat, anyway.
But here, via email to a constituent that was shared with us, is just one example of what we get when we're silly enough to actually ask why they voted for this thing:
This bill is designed to update FISA while putting an end to abusive domestic spying, and I voted for it in order to prevent a future program of warrantless surveillance by the executive branch. The bill is explicit that complying with FISA is the only way for the government to conduct surveillance. At the same time, it updates FISA, which was originally passed in 1978, to give us important capabilities to discover and stop terrorist activities. I fully understand why there is confusion and even anger that the legislation does not do more to require some telecommunications companies to respond to lawsuits for alleged privacy abuses in their actions to implement the Bush Administration's warrantless surveillance after 9-11. But it does require a comprehensive review of that surveillance program by the Inspectors General of the Justice Department, the Directorate of National Intelligence, the National Security Agency, and the Defense Department, including a report to the Intelligence and Judiciary Committees of Congress. This will mean that past abuses by the Bush Administration will not go uninvestigated. Also, the bill does not provide absolute or criminal immunity for these companies, and no government official will receive civil or criminal immunity for past abuses.
This particular line of response is now in wide circulation, doubtless disseminated by the House Democratic Caucus to help Members deal with constituent inquiries. And it does its job well. It sounds like a nuanced and intelligent response, and in most cases is likely enough to shoo away follow-ups and lingering doubts. But it's got serious holes in it -- serious enough to render the whole thing worthless, actually -- and they deserve examination.
Regarding the claim that this bill can "prevent a future program of warrantless surveillance by the executive branch," I say you're living in a dream world:
The "administration's" lawyers -- people like John Yoo -- advised Bush that the president had the "inherent power" to ignore the FISA provisions in the name of "national security." So he did it. Despite the existence of the exclusivity provisions.
In fact, Yoo's memo insisted that FISA's exclusivity provisions meant exactly the opposite of what they do mean:
Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading.
Just days ago, of course, the federal court in the Al-Haramain case said Yoo did indeed have it exactly backwards:
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.
Congress appears clearly to have intended to -- and did -- establish as the exclusive means for foreign intelligence surveillance activities to be conducted.
Now, we've got a new exclusivity provision that also purports to prevent the president from simply ignoring the law, and it's being presented as something new and improved, and good enough by itself to justify a vote for the bill.
But the truth of the matter, as the court's decision makes clearer than ever, is exactly as Glenn Greenwald puts it:
They're presenting as a "gift" something you already have, and telling you that you should give up critical protections in exchange for receiving something that you already have -- namely, a requirement that the President comply with eavesdropping laws. What they're doing is tantamount to someone who steals your wallet, takes all the money out, gives the empty wallet back to you, and then tells you that you should be grateful to them because you have your wallet.
There really is no way to write a law such that it prevents someone from ignoring it, of course. If you ignore the law, you ignore the provisions preventing you from ignoring it. That, it turns out, is actually what "ignoring" means.
Regarding the claim that the bill "updates FISA, which was originally passed in 1978, to give us important capabilities to discover and stop terrorist activities," it's arguably true that the bill does "update" FISA, but it is decidedly misleading to follow that up by simply stating that FISA was originally passed in 1978. If "updating" is the issue, Udall might have taken care to mention that FISA has actually been updated dozens of times over the years, and several times just since 9/11.
It might also have been helpful to explain that while some of the updates were arguably necessary (debatable, but arguable), retroactive immunity for the telecom companies is neither an update to FISA, nor a necessity. Udall might have taken the opportunity to explain that George W. Bush would not accept the updates that were arguably necessary and proper unless he also won his point on immunity, and that he had in fact threatened to veto these "important capabilities to discover and stop terrorist activities" if he didn't get his way.
Some actual grown-ups among his constituents might like to know that.
Regarding the claim that the bill will "require a comprehensive review of that surveillance program by the Inspectors General of the Justice Department, the Directorate of National Intelligence, the National Security Agency, and the Defense Department, including a report to the Intelligence and Judiciary Committees of Congress," I offer this observation shared with me via email, by emptywheel:
The IG report, by law, cannot name a private citizen or entity that participated in the warrantless wiretap program. In other words, while a lot of people are pointing to the IG investigation as a great invention of transparency (though, without the Bingaman amendment [about which, see here], we have no way to force the Administration to carry out the investigation in good faith), but the IG investigation by design will continue to shield the telecoms that broke the law in assisting the Administration.
Sounds pretty "comprehensive," eh? Can't name names. That, I think, is going to be rather important when it comes to Udall's last and most ridiculous claim, that:
This will mean that past abuses by the Bush Administration will not go uninvestigated. Also, the bill does not provide absolute or criminal immunity for these companies, and no government official will receive civil or criminal immunity for past abuses.
This last claim has already been addressed thoroughly by bmaz, writing on emptywheel's blog at Firedoglake. And the issues with it utterly destroy the point. Just a few such issues:
WHAT CRIMES? - Neither Olbermann, Dean, Obama, nor anybody else discussing this hypothetical pipe dream has indicated exactly what crimes they think might be charged. Let us be clear on one thing, simply because a proscribed activity is unconstitutional does NOT make it criminal. For a crime to be charged, there needs to be a specific provision of the US Code (USC), or other statutory provision, making said conduct a crime. It is crystal clear, from the collective record to date, that the participating telcos were compelled by the Bush Administration to assist and were given written assurances that their cooperation was necessary for national security, legal and authorized by the President of the United States in a supposed time of war. That pretty much eliminates any crime that requires criminal intent by the perpetrator, and leaves only what, in criminal law, are known as strict liability crimes, of which none come to mind. The only cogent possibility is the criminal offense defined under the FISA law (18 USC 1809) which, you guessed it, requires specific intent. How are you going to prove that here?
STATUTE OF LIMITATIONS: - Even if you could identify specific crimes to charge telcos and/or their owners, directors and personnel with, the crime must be viable and ripe for prosecution. The first question any criminal defense attorney is going to ask is "Gee, is this crime within the statute of limitations"? FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years. And, remember, the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct; in this case the Department of Justice knew about the conduct as, or before, it was being committed. When we, as citizens learned about it is not the relevant test. Obama, assuming he is indeed elected, will not be issuing indictments at the end of his inaugural address. The FISA Amendment Act provides for an investigation and report of the Bush/telco wiretapping/datamining and snooping to be completed by applicable Inspectors General within one year of passage; assuming Bush signs the FAA in mid-July, that would be mid-July 2009 for the report. The Bush Administration will not be working diligently to effect this while they are still in office; any meaningful work will have to be reviewed and/or performed under the new administration. It is unrealistic to expect that any charges could possibly be filed before said said report is due, so any act occurring prior to about July 15, 2004 will not be within the statute of limitations and will be barred from prosecution.
To these, I have still more to add.
- Why, if you believe there are or may be grounds for criminal prosecution, would you immunize against civil liability? What sense does that make, exactly? Why make life easier for people you're telling us should be or could be subject to criminal liability?
- Going the path in #1 says, "Don't press your rights by yourselves, Mr. or Ms. Citizen. Let the government that just finished stripping you of them take care of that for you. Maybe.
- Who are these Congressmen commiting the Barack Obama administration to a major criminal investigation spanning eight years of the Bush White House's most secretive and most deeply shrouded abuses as its first official act, and have any of them asked Obama where he stands on this commitment?
- The people promising you criminal prosecutions after '08 if you'll just shut up and trust them to read the law and take care of things after the election are the same people who promised you effective "subpoena power" after '06 if you'd just shut up and trust them to read the law and take care of things after the election.
Well, when they said it in '06, I read the law myself and saw very clearly (and dead accurately, I might add) what would happen to "subpoena power". Now we're back to trusting their reading of the law, their predictive powers, and their assumptions that Bush won't simply pardon everyone, out of some kind if pure shame, it is suggested, even though he hasn't exhibited such shame at any point in his life, much less during his "administration."
Absent the fact that Udall is hoping we'll all go away, this would be an intentionally stupid position to take at this point, 7 1/2 years into the Bush "administration." And if it weren't for the fact that we're all going to be hit with this telegraphed punch, I'd be more than happy to let those who subscribe to it take in on the chin while I laugh from ringside.
Too bad it's not that simple.
