a citizen’s journal by Thomas Nephew

Going forth for the Fourth on the Fourth

Posted by Thomas Nephew on 5th July 2008

Once again, I rented some “Minuteman”/colonial town crier type duds and joined the Takoma Park Fourth of July parade and spectacle. I had about a thousand little 4 by 5 fliers with phone numbers for Senators Cardin, Mikulski, and (sigh) Obama, urging them to vote against the FISA Amendment Act. Here’s a reproduction and text version of the flier (4 to a page) I used, which quoted the 4th Amendment as well. The text is from something I ran across at the site about this issue, I just rearranged it a bit. (For incoming visitors, more specific information about the issue — joining the group, links to the ACLU, etc. — is in the prior post, Celebrate the Constitution this 4th of July!)

Both my spouse Crickey and my friend (and fellow impeachment activist) Michelle Bailey came along to help pass out the fliers; Michelle also snapped some photos like the one here.

Some notes: people — even Obama supporters with buttons or stickers — were disappointed in Obama’s reversal on this. The phrase that helps the most with recognizing the issue is “telcom immunity” — maybe Takoma Park is exceptional, but that got pretty high “issue recognition,” to coin a phrase.

As anyone knows who’s done this kind of thing more than once, you wind up getting a “rap” down if you didn’t already have one — some stock phrases to get across what the issue is about. Not saying it’s golden, but one thing that worked was this:

“…telcom immunity is a terrible idea looking back” — thumb one way — “…we’ll never find out what happened. And it’s and even worse idea looking forward” — thumb other way — “some other company, under some other president — asked to do something sketchy? They’ll think to themselves ‘why not — phone companies got away with it.’

I also talked with people about how the bill threatens the Fourth Amendment (in my opinion) by settling for a judge authorizing protocols for “computer dragnets” rather than insisting on probable cause for a specific person and reason.

In addition to “thanks for doing this” from many parade watchers, I got good reactions from parade participants and local politicians Jamie Raskin, Heather Mizeur, George Leventhal, and Tom Hucker, so that was a plus as well. Raskin and Mizeur are delegates to the Democratic Convention in Denver (Obama, “super” who’s endorsed Obama, respectively).

I had a blast; I like doing this kind of thing — whether in costume or not. Thanks again to Michelle and Crickey for joining me, and for the great photos they took; slideshow here.

UPDATE, 7/6: eRobin works the crowds in Philadelphia about the FISA Amendment Act.

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Celebrate the Constitution this 4th of July!

Posted by Thomas Nephew on 4th July 2008

..stop the FISA bill! Don’t let illegal wire-tappers off the hook!

What is it? The FISA Amendments Act — H.R. 6304 — will, as a letter from the ACLU to Senators puts it,

unconstitutionally and unnecessarily [permit] the government to vacuum up Americans’ international communications, without a connection to al Qaeda, terrorism, or even to national security. While there is limited prior review by the Foreign Intelligence Surveillance Court, the protection afforded by that review is almost completely illusory. H.R. 6304 also grants retroactive immunity to companies that facilitated warrantless wiretapping over the last seven years.

When is the vote?

Tuesday, July 8.

Why is the FISA Amendments Act (FAA) a bad idea?

  • The bill gives telecommunications companies immunity from lawsuits for cooperating with George Bush’s illegal warrantless electronic surveillance. That will block one of the only means of finding out exactly what was done, and will set a bad precedent for the future — should companies automatically cooperate with a president even if they suspect what’s being ordered might be illegal? (Some, like Qwest, did not.) As a friend of mine wrote, Retroactive immunity for lawbreaking telecoms is forever. The precedent it would set is also permanent.”
  • The bill is so complicated, vague, and poorly debated that even experts are not sure what additional powers are being conferred to the president. That’s never a good idea — even if you like the current president or the likely next one, you may not feel the same way next year or five years from now.
  • What seems likely is that vast “vacuum cleaner” surveillance protocols are envisioned, with a court only seeing how the protocol is constructed — not who specifically is being surveilled, and why. Goodbye “probable cause” — the foundation of the 4th Amendment, saying the government must have a good, specific reason to search you, your effects, or your communications.
  • That, in turn, will likely ratify an exponential increase in “false positives” — people who seem like they might be a security threat, but turn out not to be. Even if you don’t care about your 4th Amendment rights (i.e., “who cares — I have nothing to hide”), it should concern you that the NSA is wasting its time and the time of other agencies with an explosion of useless leads to follow up.

What can I do?

  • Call your Senators. For citizens of Maryland, the phone numbers are
    • Senator Cardin: 202-224-4524
    • Senator Mikulski: 202-224-4654
  • Call Barack Obama’s presidential campaign: 866-675-2008. Unfortunately, Obama has said he would support the bill — despite pledging last fall to oppose any bill with telecom immunity.
  • Join online “Senator Obama – Please, No Telecom Immunity and Get FISA Right” groups at and facebook. (Both facebook and are easy to join if you haven’t already.) The “” group is already the largest group at the Obama web site.

What might I say in a phone call?

I’m a constituent and I urge you to oppose telecom immunity and the FISA Amendments Act. As a constituent, I am very troubled that during this patriotic holiday season, the Senate appears ready to toss civil liberties and the rule of law out the window, and so I urge you oppose telecom immunity with every vote that you have when the FISA bill comes to the Senate floor on Tuesday, July 8th:

Vote “YES” on the Dodd-Feingold amendment, which would strip telecom immunity from the bill entirely.

Vote “YES” on the Bingaman amendment, which would delay implementation of telecom immunity until after Congress has received the Inspectors General report on the president’s warrantless surveillance program.

Vote “NO” on the cloture motion to end debate on the FAA,

And finally, vote “NO” on the FISA Amendments Act, an unconstitutional and dangerous bill that would radically expand the president’s spying powers and immunize the companies that helped him break the law.

(Via Electronic Freedom Foundation)

Where can I learn more about this?

Thanks for visiting! Please join the fight.

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A belated note on Obama and FISA: argh

Posted by Thomas Nephew on 27th June 2008

I share Nell’s, Avedon’s, eRobin’s, Mick’s, Paul’s, Kevin’s, Glenn Greenwald’s and many others’ anger and/or disappointment re the express train to Nixonland FISA capitulation by the Democratic Party and Obama.

While it’s justifiably the headliner aspect of the bill for opponents, the telcom immunity provision is only part of the problem. When you get long-time Jucidiary Committee staffers and Department of Justice veterans like James Dempsey and Marty Lederman scratching their heads and saying they’re still not quite sure what all is being authorized here — and neither is Congress — then it’s time to pull the emergency brake for that reason alone, not stoke the engine.

Given that “if you have to ask, you can’t afford it”, it seems likely we’re about to approve giga-scale “vacuum cleaner” data mining of a great deal of innocent e-mail and telephone traffic on “general principles” of some unknown nature, with a resulting huge spike in ‘false positives’ like those that have affected so many air travelers since 9/11 changed everything. Those positives will result in additional “warranted” yet essentially unjustified spying — fruit of the poisonous tree, declared tasty and nutritious by congressional fiat, Fourth Amendment be damned.

Re Obama: in one way or another, many of the bloggers above “told you so” about Obama’s propensity to lean towards whatever the DC establishment consensus is — not that I think they take great pleasure in seeing their analyses confirmed. But some didn’t, and Greenwald’s scoldings notwithstanding, I have to say that I’ve seen a lot of fairly fervent primary season Obama supporters be forthright about being disappointed with Obama now: hilzoy, Paul, and Kevin among them.

For my part, while I thought I was braced for that kind of thing, I confess I’m “Charlie Brown in midair” all the same to see Obama flatly renege on this so soon after his campaign promise last fall to support no FISA bill with immunity provisions. While I’ve been quiet online, I did fire off an e-mail to some Obama delegates I know; both replied that they shared my disappointment, and would pass along my comments to the campaign. Given that I couldn’t get through to the campaign with a phone call, I suspect they’re getting the message in Chicago; whether that message bothers them or not I can’t say.

There must be some kind of way out of here; seems like we’ve been here before. Meanwhile, Nell reminds me to go down fighting — there at least needs to be an amendment offered to strip immunity from the bill. I’m off to call my Senators; don’t expect much from Mikulski, but Cardin might hold the line on this.

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FISA since 9/11 — color-coded for your convenience

Posted by Thomas Nephew on 13th September 2007

Thanks to the latest advances in technology, we can now not just be subject to electronic surveillance without warrant, but can also examine with great precision the laws allegedly permitting the government to do so. Surveillance law expert David Kris has helpfully provided a color-coded document showing just how much FISA has changed since 9/11/2001.

Orange underlined and strikeout font show additions and deletions due to the “Protect America Act” cave-in from earlier this summer, red edits are for those due to the 2001 “USA PATRIOT Act”, and so forth. A key is provided at the top of the document.

Via Kim Zetter at “Threat Level,” a WIRED Magazine blog.

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Worth reading

Posted by Thomas Nephew on 4th September 2007

  • Thirteen Ways Not To Think About The Petraeus Report (hilzoy, guest blogging for Andrew Sullivan) — I particularly like number two:

    …Even if we can’t maintain the surge, we’re making progress, so we should stay. — This is an example of what, on Obsidian Wings, I called “benefit analysis”: noting that an option provides some benefit and concluding that we should adopt it. (Relatedly, “cost analysis” involves noting that an option involves some cost and concluding that we should not adopt it.)

  • John Edwards’ Plan To End The War In Iraq — Just when I thought there wasn’t a major candidate really saying what I think.

    By leaving Iraq, America will induce the Iraqi people, regional powers, and the entire international community to find the political solution that will end the sectarian violence and create a stable Iraq. We must show the Iraqis that we are serious about leaving by actually starting to leave, with an immediate withdrawal of 40,000-50,000 troops.

    But that’s not all; as Nell Lancaster notes in a post also worth reading, Edwards also believes the U.S. should completely withdraw all combat troops in Iraq within about a year and prohibit permanent U.S. military bases in Iraq.”* (All emphases added.) Nell:

    Primary campaigns are truly pointless, massive wastes of money and effort if there’s no significant difference among major candidates. This is a healthy step forward.

  • Post-Mortem America, Chris Floyd, “Empire Burlesque” —

    The annus horribilis of 2007 has turned out to be a year of triumph for the Bush Faction — the hit men who delivered the coup de grâce to the long-moribund Republic. Bush was written off as a lame duck after the Democrat’s November 2006 election “triumph” (in fact, the narrowest of victories eked out despite an orgy of cheating and fixing by the losers), and the subsequent salvo of Establishment consensus from the Iraq Study Group, advocating a de-escalation of the war in Iraq. Then came a series of scandals, investigations, high-profile resignations, even the criminal conviction of a top White House official. But despite all this — and abysmal poll ratings as well — over the past eight months Bush and his coupsters have seen every single element of their violent tyranny confirmed, countenanced and extended.

    Thanks, Nancy!

  • The (Josh) Marshall Plan, David Glenn, Columbia Journalism Review — A well written description and analysis of the Talking Points Memo media empire and its founder, Josh Marshall. Here’s a key observation, I think:

    When asked whether he would rather have more staff resources devoted to original reporting, [Marshall] says, “I think we’ve got our percentages down pretty well. I think it’s key to our model that we don’t draw a clear distinction” between original reporting and aggregation. Marshall favors such a mix because he wants his reporters to serve as the “narrators” of complex, slowly unfolding stories. “Sometimes that will mean walking our readers through what’s being published elsewhere,” he says. New articles in mainstream dailies often contain facts whose full implications aren’t explored, Marshall says, “either because of space or editorial constraints or because the reporters themselves don’t know the story well enough. They’re often parachuted in to work on these topics for just a few weeks.”

  • Conscience of a Conservative, Jeffrey Rosen, New York Times Magazine — Rosen profiles Jack Goldsmith: conservative, head of the Bush administration’s Office of Legal Counsel in 2003 and 2004 … and eventual dissident from the worst of what Bush, Cheney and Addington were up to. The profile and Goldsmith’s book will go down in history for this quote:

    But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.**

    (Emphasis added.) In the event, of course, Addington was wrong — they were zero bombs, three years and six months away. This quote is also worth hanging on to, for its succinct summary of the Bush/Cheney/Addington m.o.:

    In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes.

    Impeach them all.

* See also a video of recent comments by Edwards in Iowa (via lambert at “Corrente”) on Guantanamo, warrantless surveillance, U.S. secret prisons, and torture; Edwards says he’ll end all of it. While Edwards doesn’t favor impeachment for many of the usual bad reasons (essentially, Congress has better things to do), his election on a platform like this would be the next best thing.
** The quote begins with “In addition, he shared the White House’s concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists.” This is either false or reflects Goldsmith’s own willingness to play a little fast and loose with the facts. When factually warranted, the FISA court would certify that such a wiretap was legally warranted — and could do so after the fact.

NOTES: “Post-mortem” via Avedon Carol (“The Sideshow”) and Arthur Silber (“Power of Narrative”); “Conscience” via Avedon Carol and Glenn Greenwald.

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Posted by Thomas Nephew on 7th August 2007

I mean it. Please discuss. I’m pretty blue about this, so I may say things I’d regret later on — say in September/October 2008. But maybe that’s the problem. Meanwhile: Military Commissions Act; Iraq supplemental; now this. In or out: Dems cave — White House applauds. Like I say, please discuss, in whatever tone you like.

Some pertinent links:

NOTE: image by Jason Zanon ( “Democracy in Action”). Via Jonathan Schwarz (“A Tiny Revolution”)
UPDATE, 8/7: Lots of very worthwhile discussion! See also posts by discussants about this, including ones by eRobin, altHippo , and the Talking Dog on their blogs, as well as one from last week by Nell Lancaster (nice title — “Profiles in learned helplessness”). See also recent posts by commenter Mick Arran suggesting it’s not cowardice or miscalculation — (some) Democrats want those authoritarian powers for themselves, and are willing to buck contrary election results (where Dems prevailed “despite” voting for civil liberties) to get them. The hypothesis can’t be dismissed out of hand — please re-review the diagram above. Arran’s latter post reanalyzes facts and arguments presented in a couple of posts by Glenn Greenwald — Democrats’ responsibility for Bush Radicalism, and Attention Democrats: GOP fear mongering does not work. Unless you’re in Congress, that is. Elsewhere, fellow Marylander Stephanie Dray is disappointed with Senator Mikulski — “she didn’t have to vote this way.”

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Posted by Thomas Nephew on 18th May 2007

In an aside to his dismemberment of Douglas Kmiec’s bizarre op-ed in the Washington Post,* Georgetown’s Marty Lederman (“Balkinization”) has probably solved why the President sent his thugs over to Ashcroft’s hospital bed that night to collect his signature instead of acting Attorney General Comey’s. (Recall that Comey said it was a “complicated question” why his signature was needed.) The first reason Lederman advances is

“…to give some comfort to the NSA. If you were NSA General Counsel, how would you react if the President asked you to engage in conduct that is on its face criminal; if you learned that Jack Goldsmith and John Ashcroft of all officials, concluded that there was no legal way around the statutory restriction and refused to be associated with it; and if the only justification the President offered you for obeying his order was that he was adopting David Addington’s, uh, shall we say idiosyncratic, view of the Commander-in-Chief Clause, notwithstanding that such attorneys as Goldsmith and Ashcroft thought it was untenable?”

Plausible, but I think Bush would have been just as willing to push around the NSA general counsel as he was willing to try to put a pen in a drugged-up Ashcroft’s hands. But Lederman’s second reason pits Bush against someone he couldn’t bully quite as easily:

Second, the AG signature might have been necessary to induce the requisite private actors — telcom companies in particular — to continue to go along with the program.

18 U.S.C. 2511(2)(a)(ii) provides that “providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with — (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title [not relevant here] or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.” That statute further provides, importantly, that “[n]o cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.”**

In other words, TPC — The Phone Company — forced Bush’s hand.

* I wondered what Kmiec was smoking when I read his final paragraph. Lederman was similarly puzzled.
** Emphases in original; links to Cornell Law LII entries added.

UPDATE, 5/18: Writing for the excellent WIRED Magazine blog “Threat Level,” Ryan Singel thinks Lederman may be wrong with his telcom theory:”Two reasons why: Qwest asked for such a paper and never got it. Why would the others get it? And more to the point, the Administration is pushing language that would immunize telcos from lawsuits accusing the companies of illegally helping the government. Why push that provision if the telcos already are holding get out [of] federal court free cards?”

As I respond there, I don’t think those are strong objections. Qwest’s experience doesn’t show what happened to other telcoms — and at least for a couple of weeks, there weren’t any “get out of court free cards.” The retroactive nature of the immunization legislation Singer mentions may actually be motivated, in part, by the two week gap that Lederman (and Senator Feinstein, in the hearing) pointed out. (See “For Impeachment,” below, for links and text).

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For impeachment

Posted by Thomas Nephew on 17th May 2007

As is well known, James Comey gave explosive testimony (transcript) before the Senate Judiciary Committee yesterday concerning his standoff with Alberto Gonzales and Andrew Card over the approval of a secret program. Here’s a video of some of that testimony.

The encounter had been reported by James Risen and Eric Lichtblau in January 2006, but Comey’s testimony provides more detail about now-Attorney General Gonzales and President Bush’s roles. Glenn Greenwald makes a number of good observations, as usual, including this one, about Comey and Mueller preparing for Gonzales/Card arrival at Ashcroft’s bedside by ordering FBI agents not to allow Comey to be removed from the room*:

Comey and Mueller were clearly both operating on the premise that Card and Gonzales were basically thugs. Indeed, Comey said that when Card ordred him to the White House, Comey refused to meet with Card without a witness being present, and that Card refused to allow Comey’s summoned witness (Solicitor General Ted Olson) even to enter Card’s office. These are the most trusted intimates of the White House — the ones who are politically sympathetic to them and know them best — and they prepared for, defended themselves against, the most extreme acts of corruption and thuggery from the President’s Chief of Staff and his then-legal counsel (and current Attorney General of the United States).

Marty Lederman (“Balkinization”) goes further — “Comey Testifies that the President Broke the Law.” Lederman summarizes:

Comey testified as follows:

(i) that he, OLC and the AG concluded that the NSA program was not legally defensible, i.e., that it violated FISA and that the Article II argument OLC had previously approved was not an adequate justification (a conclusion prompted by the New AAG, Jack Goldsmith, having undertaken a systematic review of OLC’s previous legal opinions regarding the Commander in Chief’s powers);

(ii) that the White House nevertheless continued with the program anyway, despite DOJ’s judgment that it was unlawful;

(iii) that Comey, Ashcroft, the head of the FBI (Robert Mueller) and several other DOJ officials therefore threatened to resign;

(iv) that the White House accordingly — one day later — asked DOJ to figure out a way the program could be changed to bring it into compliance with the law (presumably on the AUMF authorizaton theory); and

(v) that OLC thereafter did develop proposed amendments to the program over the subsequent two or three weeks, which were eventually implemented.

The program continued in the interim, even after DOJ concluded that it was unlawful.

Lederman repeats the point today:

The President signed the directive himself, and allowed the NSA program to continue for at least two weeks, even though DOJ had concluded that it was legally indefensible, i.e., that it violated a criminal statute.

(All emphases in original.) At minimum, Gonzales has deserved impeachment for his untruthful testimony about the US Attorney scandal and his role in that abuse of power to thwart criminal investigations and intimidate voter registration campaigns. Comey’s testimony is icing on the cake in that respect; though I don’t know whether Gonzales’ different office at that time (counsel to the President) would have some bearing legally, it ought not to as a matter of his fitness for the office of Attorney General.

But it seems to me Comey’s testimony is a “smoking gun” for impeaching the President and convicting him of a “high crime and misdemeanor” as well. Now I’m not the legal expert Lederman is, so when he fails to draw a conclusion I should be careful to supply one. But as I understand Comey’s testimony, the President allowed an illegal program to proceed while adjustments were made to make it legal again. For instance:

SPECTER: You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney general, and that was that. Why consider resigning?
COMEY: Not because of the way I was treated but because I didn’t believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for. […]
But why resign? You’re standing up to those men. You’re not going to certify it. You’re the acting attorney general. That’s that.
COMEY: Well, a key fact is that they went ahead and did it without — the program was reauthorized without my signature and without the Department of Justice. And so I believed that I couldn’t stay…
SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?
SPECTER: So it went forward illegally.
COMEY: Well, that’s a complicated question. It went forward without certification from the Department of Justice as to its legality.
SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?
COMEY: I believed so.


FEINSTEIN: And what was the elapsed period of time from that meeting, the denial of DOJ to certify the program and the time when it was essentially certified?
COMEY: It was reauthorized on Thursday, March the 11th, without the department’s — without my signature, without the department’s approval. And it was the next day — so less than 24 hours later — that we received the direction from the president to make it right. And then we set about — I don’t remember exactly how long it was — over the next few weeks making changes so that it accorded with our judgment about what could be certified as to legality. And so it was really only that period from Thursday, when it was reauthorized, until I got the direction from the president the next day that it operated outside the Department of Justice’s approval.
FEINSTEIN: For approximately two weeks?
COMEY: I don’t remember exactly. It was two or three weeks I think that it took us to get the analysis done and make the changes that needed to be made.

Comey’s a careful guy, as is Lederman, and so there may be some loophole here that I don’t yet understand. But it’s difficult for me to put any other face on this than that — given what Comey was telling him — the President was at best criminally negligent in allowing a program to continue for weeks after learning his acting Attorney General found it had no legal basis.

And at not-too-unlikely worst, of course, Bush was just the top thug ordering his consigliere thug Gonzales to go to the hospital and squeeze a go-ahead fig leaf out of an ailing Ashcroft for a program that he already knew was legally out of bounds. (All the talk of there not being a statutory requirement for an Attorney General’s signature can’t get around the great and unseemly lengths Gonzales and Card — and through them, George W. Bush — went to to get one.)

There have been ample grounds to consider impeachment before — from approving torture in contradiction to treaty obligations, U.S. law, and common decency, to approving warrantless surveillance in contradiction to U.S. law, to presiding over a blatantly fraudulent campaign to convince Congress and the public of the need to go to war with Iraq, costing tens of thousands of lives.

Yesterday’s Senate Judiciary Committee hearing adds sworn, smoking gun testimony about serious, unlawful presidential conduct to that bill of particulars.

Impeach President George W. Bush.

* This testimony is on the video at around the 6:30 mark.

UPDATE, 5/16: A Talking Points Memo reader hits another nail on the head (emphasis added): “It’s time that the Democrats in Congress blew the lid off of the NSA’s surveillance program. Whatever form it took for those years was blatantly illegal; so egregious that by 2004, not even the administration’s most partisan members could stomach it any longer. We have a right to know what went on then. We publicize the rules under which the government can obtain physical search warrants, and don’t consider revealing those rules to endanger security; there’s no reason we can’t do the same for electronic searches. The late-night drama makes for an interesting news story, but it’s really beside the point. The punchline here is that the President of the United States engaged in a prolonged and willful effort to violate the law, until senior members of his own administration forced him to stop. That’s the Congressional investigation that we ought to be having.”
EDIT, 5/17: video aligned to right side of page.

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Action items: Darfur, warrantless surveillance, Arctic Refuge, net neutrality

Posted by Thomas Nephew on 24th May 2006

Help Darfur — Tell Congress to pass the budget bill! (Oxfam America Advocacy Fund):

While the House and Senate are working through differences unrelated to Darfur funding, the process is hampering efforts to get critically-needed assistance to the people of Darfur. Please help us again — urge Congress to take quick action.

Demand The Truth (ACLU):

It’s illegal and un-American for your phone company to hand your call records to the government without a warrant. But that’s just what they’re doing, violating the privacy and rights of millions of innocent Americans in the process.

The FCC has the authority and the obligation to investigate the NSA spying scandal, despite their wrong-headed refusal to act. Add your name to the public record and support our formal demand using the form below. If you live in a state where we are filing a complaint with local regulators, we will also add your name to our local demand for action.

Drilling is NOT the answer (Wilderness Society):

As hard as it is to believe, the Arctic National Wildlife Refuge is in the crosshairs again. Some House members may force a vote on drilling in the Arctic Refuge as early as this Wednesday. Rep. Richard Pombo (R-CA) has announced the latest drilling vehicle, H.R. 5429, euphemistically labeled “The American-Made Energy and Good Jobs Act.”

A House vote on this bill could happen as soon as this Wednesday, May 24, so it is critical that your Representative hear from you as soon as possible. Even if you’ve taken action on this recently and repeatedly, we urgently need your phone calls to Congress.

Save the Internet (

On April 26, a congressional committee caved to pressure from ATT and Verizon and voted for a bill that would allow large telephone and cable companies to control what you do, where you go, and what you watch online.

This betrayal sparked a public revolt. More than 700,000 people have sent protest letters to Congress. Thousands more are calling their elected represenatatives to demand that they take a stand for Internet freedom. Because of the intense heat, some members of Congress are switching from ATT’s side to ours. The House will vote soon on whether to preserve Internet freedom; a Senate vote will follow shortly after. Every elected member of Congress needs to take a stand on Internet freedom.

You can learn more about each issue via the links provided.

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Joseph Onek on the NSA scandal and executive power

Posted by Thomas Nephew on 20th January 2006

I went to a Drinking Liberally (“promoting democracy one pint at a time”) gathering near Dupont Circle on Wednesday evening to listen to Joseph Onek, senior counsel to the Constitution Project. His topic was the issue of metastasizing executive branch power — illegal warrantless NSA wiretaps, “fingers crossed” presidential signing statements and the rest of it.

Onek — a former law clerk to Justice William Brennan, Senate staffer, and legal counsel to the Carter and Clinton administrations — was impressive, delivering a half hour or so ad lib summary of the legal issues involved, primarily focusing on the NSA revelations. I learned that the Supreme Court once held (1928) that wiretaps didn’t require a warrant under the 4th Amendment — it wasn’t a physical search. Only in 1967 did they decide (in Katz)* that the 4th Amendment protects people, not places, and shortly thereafter they held (Keith) that national security did not necessarily trump 4th amendment protections for American citizens.

Following Watergate, revelations of domestic spying led to the Church hearings, which culminated in the Foreign Intelligence Surveillance Act, or FISA. As is well known at this point, FISA set up a special court that could secretly issue warrants for wiretaps and electronic surveillance.

One thing I hadn’t understood is that some provisions of FISA closed privacy loopholes, so to speak, in the 4th amendment itself. If I followed Onek, the Supreme Court has ruled that “pen register” surveillance without a warrant — who is calling whom at what time, without actually listening in — is constitutional under the 4th amendment. FISA does require a warrant, but the government must only show that “reasonable suspicion” exists, a less demanding legal standard than the 4th amendment’s “probable cause” requirement.

Onek acknowledged that without knowing what the NSA program does in detail, opponents are at a disadvantage. While it may be “just” massive “traffic analysis” — who in region A called who in region B more often than expected, which call seemed to trigger other calls — that was probably not all that was going on, given that (a) you can get warrants for that kind of thing, too, under FISA, and (b) that Gonzales mentioned at his press conference that he was told legislative approval would not be forthcoming for this NSA program.

The Youngstown Sheet and Tube v. Sawyer case came up, too, of course; in this case, the Supreme Court held that Harry Truman couldn’t seize some steel mills facing a strike — despite needing steel for the Korean War — because there were specific laws about how to settle strikes that Truman’s action ignored. The most often cited formulation was that of Justice Robert H. Jackson. Wikipedia:

Jackson’s opinion took a similarly flexible approach to the issue, eschewing any fixed boundaries between Congress’ and the President’s power. Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying local governmental or congressional orders. He classified this case as falling within the third category.

Bush and the NSA’s actions would also seem to fall in the third category. Onek allows, as do most sensible folk, that there are conceivably Congressional resolutions and statutes that could and should be ignored by the president. In his thought example, a Congressional resolution demanding that the main invasion of Europe in World War II proceed via Sicily rather than Normandy could have been safely ignored by the president, because such a resolution would be too specific and direct an interference with the president’s military role as commander in chief. The FISA law, by contrast, is an instance of Congress weighing national security, 4th amendment, and privacy policy concerns and crafting a definitive balance.

As I understood him, Onek leans to the view that the Bush administration was really trying to simultaneously eavesdrop everyone within 6 degrees of pen-register separation, so to speak, of the original phone number or numbers famously found in records in Afghanistan. The mere fact of a phone contact with a phone contact with a phone contact etc. would or at least should not constitute “probable cause” allowing eavesdropping or even “reasonable suspicion” — hence, Onek believes, the Bush administration’s failure to seek judicial or legislative approval.

Before ending his remarks, Mr. Onek suggested what he’d like to see happen in Congress. Rather than just let Arlen Specter’s Judiciary Committee conduct a simple hearing that would turn into a Bush administration platform, he advocated demanding multiple hearings and a staff investigation of the NSA revelations. I agree; if you do, too, write your senators and representative about it.

Thanks to Mr. Onek for delivering his remarks, and to “Drinking Liberally” for arranging the talk.

* Any misinterpretations of the meanings of these cases are my own, based on my hurried notes. I invite corrections from knowledgeable sources, and comments from everyone.

UPDATE, 1/23: Mr. Onek also wrote about this issue just before Christmas at the American Constitution Society’s ACSBlog.

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