Okay, well not really, but the Orwellian tendencies exhibited of late in our neighbor across the water are quickly becoming more pronounced. These snips are from Slashdot:

Every Email In UK To Be Monitored
ericcantona writes “The Communications Data Bill (2008) will lead to the creation of a single, centralized database containing records of all e-mails sent, websites visited and mobile phones used by UK citizens. In a carnivore-on-steroids programme, as all vestiges of communication privacy are stripped away, The BBC reports that Home Secretary Jacqui Smith says this is a ‘necessity.’” [ link ]

UK Government Says More Spying Needed
“Our wonderful government here in the UK has decided we’re not being surveilled enough, and agreed to spend £12 billion on a programme to monitor every Briton’s phone calls, e-mails, and internet usage. According to various sources, upwards of £1 billion has already been spent on the uber-database. Rationale? Terrorism, of course (no prizes for guessing). Needless to say, not everyone is as happy as Larry over this: Michael Parker pointed out how us Brits are being ’stalked.’ I’m just looking forward to when the data gets lost.” [ link ]

While the state of surveillance in the UK is intensifying, security breaches and loss of sensitive data just add to the reasons why this trajectory is so troubling.

British MoD Stunned By Massive Data Loss
Master of Transhuman writes “Seems like nobody can keep their data under wraps these days. On the heels of the World Bank piece about massive penetrations of their servers, the British Ministry of Defense has lost a hard drive with the personal details of 100,000 serving personnel in the British armed forces, and perhaps another 600,000 applicants. This comes on the heels of the MoD losing 658 of its laptops over the past four years and 26 flash drives holding confidential information. Apparently the MoD outsources this stuff to EDS, which is under fire for not being able to confirm that the data was or was not encrypted.” [ link ]

I’ll just let Greenwald describe it…

In the most unsurprising revelation imaginable, two former Army Reserve Arab linguists for the National Security Agency have said that they routinely eavesdropped on — “and recorded and transcribed” — the private telephone calls of American citizens who had absolutely nothing to do with terrorism…

The two NSA whistleblowers, Adrienne Kinne and David Murfee Faulk, were interviewed by ABC News’ Brian Ross. Kinne said that “US military officers, American journalists and American aid workers were routinely intercepted and ‘collected on’ as they called their offices or homes in the United States.” He also said his co-workers “were ordered to transcribe these calls.” Faulk told Ross: “when one of my co-workers went to a supervisor and said: ‘but sir, there are personal calls,’ the supervisor said: ‘my orders were to transcribe everything’.” He said that the intercepted calls included highly personal and intimate conversations and even phone sex…

While the extent of the abuses disclosed here is substantial — “hundreds of Americans”; journalists, Red Cross and aid workers; military officers speaking to their friends and families — these disclosures are from only two relatively low-level individual NSA linguists at one NSA facility in Georgia. If just these two individuals are aware of this level of abuse, just imagine what the true extent of the abuses is — both quantitatively (how many innocent Americans had their conversations eavesdropped on?) and qualitatively (who, beyond journalists and aid workers, were listened to?)…

Let’s not forget who the ultimate culprit is here: the U.S. Congress, and specifically the Senate Intelligence Committee led for years by GOP Sen. Pat Roberts and now by Democratic Sen. Jay Rockefeller. That Committee was created in the wake of the discovery in the mid-1970s that the U.S. Government was abusing its surveillance powers for decades because no judicial oversight was required, and the reason that Committee was created — the reason it exists — is ” to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States.”

But people like Pat Roberts and Jay Rockefeller (along with Nancy Pelosi and ranking House Intelligence Committee Member Jane Harman) knew that the Bush administration was spying on Americans without warrants — because the administration told them they were — and they did nothing. Even once The New York Times finally told the country that the Bush administration was breaking the law — only after the Times concealed the story for a full year — the Senate Intelligence Committee never bothered to investigate what the Bush administration was doing with its secret, unlawful spying powers, whether those powers were abused, which Americans were spied upon, and how they were selected. To this day, they have never bothered to investigate those questions…

Even without any reports of abuse, what the Bush administration did in spying on Americans without warrants was a felony, punishable with a $10,000 fine and up to 5 years in prison for each offense. We’ve heard for the last many years — from the David Broders and friends — that it would be terribly divisive, awfully unfair, upsetting and disruptive, for government officials to be held accountable for their violations of the criminal law. Will these revelations — that innocent Americans were spied upon in large numbers as part of this criminal spying program — change that view?
[ link ]

A new front has been opened in the battle over warrantless wiretapping. The EFF is suing the NSA directly in this case (Jewel v NSA), so the recent telecom immunity legislation doesn’t apply here.

The Electronic Frontier Foundation (EFF) filed a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney’s chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance.

The lawsuit, Jewel v. NSA, is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. [link]

Today is Constitution Day, which marks the 221st anniversary of the ratification of the U.S. Constitution.

Observance of this symbolic day is limited to those outside of Congress where Robert Mueller is stonewalling without consequence on the anthrax case, those outside of the White House where subpeonas continue to be ignored, those outside the DHS where the private papers of citizens can be siezed, and those outside of the surveillance apparatus of an emerging police state where even journalists are being targeted.

Voting machines that do not deliver accurate and consistent results have no place in the polling places of America. End of story.

The mysteries keep piling up around the Sequoia voting machines used in New Jersey. This time Princeton University computer scientist Ed Felten has uncovered a phantom vote for Obama in summary tapes from three voting machines used in the state’s February 5th primary in Pennsauken District 6.

The county clerk reports that 279 votes were cast in the Democratic primary in Pennsauken District 6. The figure apparently comes from memory cards taken from the machines. This number coincides with the turnout number that appears on the summary tapes from the three voting machines in District 6, which show turnout on the machines as 133, 126 and 20.

The problem, however, is that the summary tapes show that the total number of votes the candidates received doesn’t match this number. The tapes indicate that the candidates together received 280 votes instead of 279. When the individual numbers for the candidates on the tapes are compared with the individual numbers that the county reports, Obama is shown as receiving 95 votes on the machine tapes, whereas the county clerk’s numbers (.pdf) show him receiving 94 votes (again, from numbers taken from the memory cards inside the machines). The question is, why doesn’t information taken digitally from the memory cards inside the machines match the summary tapes that are printed from the machines? And why doesn’t the number on the tapes that indicates the total number of votes cast for candidates match the number on the tapes that indicates the voter turnout?

Felten notes that no problem shows up for the Republican primary numbers. [link]

Hard to believe that in the eight years since the debacle of the 2000 election, the straightforward process of simply casting and accurately counting votes continues to be in deep jeopardy.

New York state is in the process of replacing its lever voting machines with new voting equipment, but the state revealed recently that it has found problems with 50 percent of the roughly 1,500 ImageCast optical-scan machines (shown in the video above) that Sequoia Voting Systems has delivered to the state so far — machines that are slated to be used by dozens of counties in the state’s September 9 primary and November 4 presidential election.

…In Nassau County alone, the largest voting district outside of New York City, officials found problems with 85 percent of the 240 ImageCast machines it received so far — problems that the county characterized in a letter as “substantial operational flaws that render them unusable or that require major repairs.”

The problems include printers jamming, broken monitors and wheels, machines that wouldn’t boot up, and misaligned printer covers that prevented the covers from closing completely, creating security concerns.

The county rejected 48 machines right at delivery, due to physical damage. Another 58 machines exhibited problems during testing, according to William Biamonte, the Democratic elections commissioner for Nassau County. [New York counties have two election directors — one each from the Democratic and Republican parties — to avoid charges of unfair elections.] Some of the latter machines, he said, shook dramatically when they were running and workers either had to shut them down or the machines shut themselves down from the vibration. Other machines had dead batteries or batteries that wouldn’t hold a two-hour charge, as they were required to do.

Another 112 machines produced a “printer failure” error message. Biamonte says this was the result of a change Sequoia made to its firmware. He said that when he received his first batch of machines about a month ago, the machines had “horrific paper jams.” To fix the problem, Sequoia loaded new firmware on the systems to speed up the printer, but in doing so disabled the USB port on machines, resulting in the “printer failure” error messages.

Biamonte, who blames the Board of Elections in part for not noticing the problems before forwarding the machines to counties, said a state worker told him he should instruct election workers to just ignore the error message. [link]

Albert Einstein defined insanity as “doing the same thing over and over again and expecting different results”. Welcome to the nuthouse, my fellow Americans.

Though there is little reason to believe that any accountability will be demanded, it is still good to see the questions about invading a country that had nothing to do with the attack on the twin towers getting raised. Most certainly an issue worthy of calling the committee back into session.

House Judiciary Chairman John Conyers has taken the highly unusual step of calling his committee back from summer recess in order to investigate allegations by Ron Suskind that the Bush administration forged a letter to buttress the links made between Saddam and 9/11, and Saddam and WMD. The congressional Authorization for the Use of Force Against Iraq, the “”War Resolution” which, as far short as it fell of a congressional declaration of war, gave the invasion its constitutional legal cover, and gave Bush the authorization to invade only after he had certified to congress the existence of these two critical links. If Saddam had nothing to do with 9/11, and if he did not possess WMD, the war was off. [ link ]

As US Supreme Court Justice Robert H. Jackson, chief American prosecutor at Nuremberg, so succinctly put it: “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

In yet another kafka-esque twist, witnesses called in today’s hearings cannot refer to impeachment, among other things. The rules apparently exclude Dennis Kucinich, as he has introduced articles of impeachment.

John Conyers is now taking the position that no one at Friday’s impeachment hearing can accuse Bush or Cheney of any crime, or any impeachable offense, or dishonorable conduct, or even lying.

Moreover, Conyers is now saying that he will shut the hearing down if anyone does accuse the boys of crimes, impeachable offenses, or otherwise being naughty. [ link ]

AfterDowningStreet describes it this way:

Apparently the rules of Congress are designed to allow impeachable offenses to be discussed only in impeachment hearings. Apparently this didn’t occur to Chairman Conyers when he decided to hold a non-impeachment impeachment hearing. As a result, his hearing may be quickly shut down, and he will have a choice of holding a real impeachment hearing, resigning, or dropping the pretense that he intends to resist Cheney and Bush in any way whatsoever.

…From pp 17-18 of The House Rules:

“Whenever it is asserted by a member of the committee that the evidence or testimony at a hearing may tend to defame, degrade, or incriminate any person, or it is asserted by a witness that the evidence or testimony that the witness would give at a hearing may tend to defame, degrade, or incriminate the witness- (A) notwithstanding paragraph (g)(2), such testimony or evidence shall be presented in executive session if, in the presence of the number of members required under the rules of the committee for the purpose of taking testimony, the committee determines by vote of a majority of those present that such evidence or testimony may tend to defame, degrade, or incriminate any person; and (B) the committee shall proceed to receive such testimony in open session only if the committee, a majority being present, determines that such evidence or testimony will not tend to defame, degrade, or incriminate any person.”

But, following this rule, you’d have to go into closed session to play a video of Bush confessing to violating FISA or a video of Bush being warned about Katrina or a video of Bush suggesting it didn’t much matter if his WMD lies were true. That is, statements that are in the public record would have to be kept “secret.” That pretty well describes the culture of Washington, D.C.

…Here’s what Conyers’ staffers are telling various witnesses: Under a rule of Congress, you cannot accuse the president or vice president of any crime, or any impeachable offense, or dishonorable conduct, or lying. You can say things like “top administration officials.” You can quote Bush and Cheney. You can presumably quote from news sources and the Congressional Record (which would include Kucinich’s articles of impeachment). You can assert facts in a pattern that allows people to draw their own conclusion. The rule does not apply to Congressman Kucinich because he has introduced articles of impeachment. If anyone violates the rule, according to the staff of the supposed chairman of the committee, the Republicans could shut the hearing down. But they couldn’t shut it down if it was an IMPEACHMENT HEARING. Nor would “executive privilege” apply in an IMPEACHMENT HEARING. Nor could any media outlet ignore an IMPEACHMENT HEARING.

[ link ]

This one gets filed in the “about bloody time” category.

Judiciary Committee Chair John Conyers Jr. said he will “hold a broad hearing on the general topic of abuses of power by the Bush administration.” Kucinich wants to invite someone special to testify. Who this “foreign official” of a “U.S. ally” might be remains unknown. My guess would be that it is a Brit who saw the way policy was being fixed in the run-up to the Iraq war. But this is pure conjecture at this point.

“There’s never been one [hearing] that accumulated all the things that constitute an imperial presidency,” Conyers said, explaining that the anticipated hearing would review more than a year of committee inquiry into such matters as the firing of U.S. attorneys, the leak of the identity of former CIA operative Valerie Plame and the information provided to Congress in the run-up to the Iraq War.

Kucinich contends that President Bush ought to be impeached for allegedly lying to Congress in order to get approval to invade Iraq.

Conyers does not intend to specifically debate or hold a committee vote on Kucinich’s article of impeachment, though issues important to Kucinich would get a public airing.

No matter how the eventual hearing is framed, Kucinich said he would like to be joined at the witness table by a foreign official he would not name.

“I’ve been contacted by representatives of a U.S. ally who are seeking an opportunity to appear before the Judiciary Committee,” he said in an interview.

“Legislative leaders of a foreign capital” have a “new angle that I haven’t thought of before but is relevant,” he said. “This interest in whether we’ve been told the truth has extended to other countries.”

Kucinich would not provide further detail.

[ link ]

UPDATE

Five minutes. That is how much time Dennis Kucinich is expected to be allotted to make his case for impeachment to the Judiciary Committee. Less time than it takes to hard boil an egg.

The hearing was then scheduled for a Friday (July 25) and scheduled to last a full two-hours (10 a.m. to noon). Then the topic was altered. Rather than being about impeachment, the hearing will be about impeachment and other supposed remedies to a lawless presidency, with the bulk of the time devoted to those other remedies. Most of those other remedies will involve, believe it or not, legislative proposals. Thus, the dererrence to future presidents who follow the Bush-Cheney tradition of violating all laws and checks on power will be the knowledge that during the administration following Bush-Cheney some bills were passed criminalizing what had always been criminal activity.

Rumor has it there are two panels being planned for the hearing, one consisting of Kucinich and four other members of Congress (Jane Harman, Walter Jones, Brad Miller, and Maurice Hinchey), and the other consisting of five non-Congress Members (Elizabeth Holtzman, Bruce Fein, Frederick Schwartz, John Dean, and Bob Barr). Each of these speakers will likely have 5 minutes for opening remarks. So, Kucinich’s presentation of the impeachable offenses of 7.5 years will be limited to 5 minutes. [ link ]

Dennis Kucinich has made good on his earlier promise to introduce additional articles of impeachment. “The former Democratic presidential candidate introduced a single article to impeach President Bush, accusing him of deceiving Congress to convince lawmakers to authorize his invasion of Iraq more than five years ago.” The complete bill is available at AfterDowningStreet.

After stating unequivocally that impeachment “is off the table,” House Speaker Nancy Pelosi stated to CBS News today that the House Judiciary Committee should address the issues that Rep. Kucinich raised in his impeachment resolution.

Yesterday, Judiciary Chairman John Conyers stated that inherent contempt will remain an option for the House of Representatives so long as Rove and this Administration refuse to recognize the law. “It took only a few minutes” for those present to reject, 7-1, Bush’s executive privilege claim on behalf of Rove.

Robert Wexler has described this confluence of recent events as “a perfect impeachment storm“. What’s in his recipe?

• 2 Tsp of Pelosi’s latest change of heart on impeachment
• 4 oz Karl Rove thumbing his nose at Congressional subpoenas
• 6 Tbs John Conyers indication of willingness to apply inherent contempt charges against Rove
• 2 lbs Kucinich’s latest article of impeachment

David Swanson describes this stormy banquet:

Imagine that you’ve not eaten a decent meal in months, that the hunger is squeezing and burning you from the inside, and that suddenly you find yourself at an 18-course feast of a dinner — say perhaps at a summit meeting of world leaders discussing food shortages. You sit down at the table, and they bring in giant platters of the most delicious foods, building a rolling mountain chain of delicacies from one end of the table to the other. On Thursday, July 10, 2008, Americans, rich and poor, had this experience. Our national sustenance is found in our Constitution and our Bill of Rights, and it’s been many months that we’ve been deprived of them. In May of 2006, then House Speaker to be Nancy Pelosi had ordered impeachment “off the table.” On Thursday, Congressman Dennis Kucinich put it back on, and we suddenly feasted our eyes on our recently lost Fourth Amendment, on our old staple Habeas Corpus, on our sweet Freedom of Speech, and on our bountiful right to be represented and hold our elected officials to the rule of law. [ link ]

The storm is brewing, the oven is hot, the metaphors are cumbersome. What this all boils down to is anyone’s guess at this point. At the very least, however, we will be seeing some hearings on the matters at hand, and Kucinich will likely be able to testify on the contents of his measure to the Judiciary Committee. And this is a huge step forward for advocates of executive accountability, despite the lukewarm comments by the Pelosis and the Hoyers of the House.

…Democratic House leaders downplayed the possibility of actual impeachment proceedings. “It is my expectation that there will be some review of it in the committee,” Pelosi said. “Not necessarily taking up the articles of impeachment, because that would have to be voted on the floor, but to have some hearings on the subject.”

“The chairman may be holding hearings. Whether he holds impeachment hearings would be another question,” Majority Leader Steny H. Hoyer , D-Md., said Thursday. [ link ]

Whatever the position of the timid Blue Dogs may be, Swanson reminds us that there are “at least 90 members of Congress who have shown some form of support for impeachment” and that these individuals, acting alone or in concert, could force the issue and demand accountability from this feckless administration:

What, one has to wonder, would happen if other members of Congress, perhaps beginning with Wexler, were to introduce their own resolutions, with or without cosponsors, with or without forcing votes on the floor of the House. What if each of the dozens of members who have signed onto Kucinich’s resolution and Wexler’s letter, or to Conyers’ own resolution in the last Congress, or who otherwise profess to support impeachment — what if each of them were to introduce a resolution each week until Pelosi and Conyers granted them, too, a committee hearing? How many such hearings would have to happen before a full-blown impeachment hearing was begun?

…In 1973, nearly 90 Democratic House members introduced separate bills to impeach Nixon. Two-thirds of them were to investigate whether Nixon’s deeds deserved impeachment; the other third were actual articles of impeachment. Most of them had no cosponsors. Today there are at least 90 members of Congress who have shown some form of support for impeachment. [ link ]

UPDATE: Breaking news … uh, there’s been no impeachment here to date, back to you bob.

It’s over. The three proposals to strip immunity from the FISA bill have failed, and it went on to pass 69-28. Twenty Democrats (including Obama) joined every single Republican to assure the final passage of this monstrous legislation. Hilary Clinton was among those to cast a Nay.

Democrats voting in favor of final passage of the FISA bill:
Bayh - Carper - Casey - Conrad - Dorgan - Feinstein - Innuoye - Kohl - Landrieu - Lincoln - McCaskill - Mukulski - Nelson (NE) - Nelson (FL) - Obama - Pryor - Rockefeller - Salazar - Webb - Whitehouse.

Democrats voting against final passage of the FISA bill:
Akaka - Biden - Bingaman - Boxer - Brown - Cantwell - Cardin - Clinton - Dodd - Dorgan - Durbin - Feingold - Harkin - Kerry - Leahy - Levin - Lautenberg - Murray - Reed - Reid - Sanders - Schumer - Stabenow - Tester - Wyden.

As usual, Glenn’s Column is worth reading in it’s entirety.

I think I have read enough today.

From the office of Dennis Kucinich:

There can be no greater responsibility of a Commander in Chief than to command based on facts on the ground, and to command in fact and in truth. There can be no greater offense of a Commander in Chief than to misrepresent a cause of war and to send our brave men and women into harm’s way based on those misrepresentations.

There has been a breach of faith between the Commander in Chief and the troops. Iraq had nothing to do with 9/11 or with Al Qaeda’s role in 9/11. Iraq had neither the intention nor the capability of attacking the United States. Iraq did not have weapons of Mass of Destruction. Yet George W. Bush took our troops to war under all of these false assumptions. Given the profound and irreversible consequences to our troops, if his decision was the result of a mistake, he must be impeached. Since his decision was based on lies, impeachment as a remedy falls short, but represents at least some effort on our part to demonstrate our concern about the sacrifices our troops have made.

This Thursday evening I will bring a privileged resolution to the House with a single Article of Impeachment of President Bush for taking our nation and our troops to war based on lies. We owe it to our troops who even at this hour stand as sentinels of America because they love this country and will give their lives for it. What are we willing to do to match their valor and the valor of their successors? Are we at least willing to defend the Constitution from the comfort and security of our Washington, DC offices? [ link ]

Kucinich already has three Impeachment Bills pending in the House Judiciary Committee, two against Cheney, H.Res. 333/799, and one against Bush, H.Res. 1258. With the introduction of the Bill against Bush, Kucinich pledged to bring additional articles to the floor if hearings on the matter were not held within 30 days. True to his word, Kucinich is back, but this time with a single charge: For taking our nation and our troops to war based on lies. By using a privileged resolution to bring impeachment to the floor, Kucinich is ensuring that the House will have to deal with his measure within two legislative days.

Unlike Nancy Pelosi, impeachment is not “off the table” for John Conyers, chairman of the Judiciary Committee, who has shown a willingness to entertain the idea of impeachment. Should the president move unilaterally against Iran without obtaining congressional authorization, Conyers stated:

“We agree with Senator Biden, and it is our view that if you do not obtain the constitutionally required congressional authorization before launching preemptive military strikes against Iran or any other nation, impeachment proceedings should be pursued, Conyers’ letter says.

Kucinich told The Public Record that Conyers’ way of ensuring the administration does not launch a preemptive attack against Iran was flawed.

“The way to make sure [the Bush administration] doesn’t attack Iran is to move forward with impeachment now,” Kucinich said. “We have an obligation to move forward now. We can’t have this administration put us in a second war based on a similar approach.”

Initiating impeachment proceedings against Bush for taking the nation to war based on propaganda and lies has also been considered by Conyers:

In an opening statement last month before former White House press secretary Scott McClellan’s testified in front of the House Judiciary Committee, Conyers said the Bush administration may have committed an an “impeachable offense” by launching a “propaganda campaign” to win support for a U.S. led invasion of Iraq in March 2003.

The Judiciary Committee convened hearing to receive testimony from McClellan about whether White House officials, including President Bush and Vice President Dick Cheney, obstructed justice or broke other federal laws in an attempt to cover-up the roles of senior administration officials who unmasked covert CIA operate Valerie Plame’s identity to the media. McClellan published a book,What Happened: Inside the Bush White House and the Culture of Washington Deception, that suggested Bush and Cheney played a bigger role in the scandal than they have publicly acknowledged.

Additionally, McClellan wrote that the White House mislead the public about Iraq’s arsenal of chemical and biological weapons and the threat the country posed to the U.S.

“What Scott McClellan wrote in his new book about the administration’s propaganda campaign to promote and defend the occupation of Iraq was not a revelation,” Conyers’ opening statement says. “It was confirmation that the White House has played fast and loose with the truth in a time of war. Depending on how one reads the Constitution, that may or may not be an impeachable offense.” [ link ]

You can sign Kucinich’s petition and demand impeachment hearings here: http://impeachment.kucinich.us/petition/.

Although the vote has been delayed until Wednesday to allow Senators to attend the funeral of Jesse Helms, most observers believe that FISA is poised to pass, with only one amendment offering anything even remotely resembling accountability still on the table.

The Bingaman amendment would merely postpone the granting of telecom immunity until 90 days after Congress receives the Inspector General’s audits of the President’s NSA spying program which the new FISA bill mandates, and would freeze the telecom lawsuits in place until then.

…The rationale behind the amendment is clear and simple: namely, members of Congress, the vast majority of whom know virtually nothing about what the telecoms did, shouldn’t grant immunity unless they know what this illegal spying program entailed. If the IG Report reveals that the program (even though illegal) was devoted to a benign and proper purpose, then Congress (if it is so inclined) can grant immunity then. But if the IG Report reveals the spying program to be something other than what the President and the telecoms claim it to be — if it entails far more invasive surveillance of Americans or was abused for improper purposes — then immunity would obviously be wildly inappropriate. Even the ACLU and EFF, the lead organizations behind the telecom lawsuits, favor the Bingaman Amendment.

…That amendment is a true compromise. It rests on what should be the completely uncontroversial proposition that Congress shouldn’t immunize the lawbreakers until they at least know what was done. In the meantime, the lawsuits are frozen so that telecoms are spared the tragic burdens of having to account for their behavior in a court of law like everyone else does. [ link ]

In a joint letter by Mike McConnell and Michael Mukasey, on behalf of the Bush administration, these characters vowed that the president will veto this bill if it contains the Bingaman Amendment, on the grounds that immunizing the telecoms is …wait for it… critical for national security.

In a parallel world, where the rule of law reigns supreme, and the Constitution is not used to line the catbox, the enablers of unlawful surveillance would be held to account. Unfortunately, we find ourselves in a crappy corrupt mockery of such a world. The same crimes that brought about the resignation of Richard Nixon are now on the verge of being codified into law. And only in this twisted upside-down world would it take a Democrat-controlled Congress and Senate to achieve what the Republicans could not.

Farewell, Amendment the Fourth. It was good knowing you.

Glenn Greenwald eviscerates the arguments favoring telco immunity in the Nancy Soderburgs and Fred Hiatts of the world, and still finds time to comment on the Al-Haramain ruling. Where does he find the time?

In the U.S., private actors don’t have government “commanders” who can “order” or “direct” them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg — in tandem with the rest of the political establishment — claiming that private telecoms were justified, even compelled, to obey unlawful “orders” from the President, and are therefore entitled to be immunized from consequences.
…
[The telcom companies] are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren’t only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government “orders” to allow spying on their customers. That’s why Qwest and others refused to “comply”, but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal — and which they unambiguously outlawed — is exactly what the telecoms did here.
[ link ]

The score is now Justice 3, Fascists 0 with the recent ruling by Judge Walker.

A Bush-41-appointed Federal District Judge yesterday became the third judge — out of three who have ruled on the issue — to reject the Bush administration’s claim that Article II entitles the President to override or ignore the provisions of FISA. Yesterday’s decision by Judge Vaughn Walker of the Northern District of California also guts the central claims for telecom immunity and gives the lie to the excuses coming from Congress as to why the new FISA bill is some sort of important “concession.”

…Now that Judge Walker has joined Federal District Judge Anna Diggs Taylor in the Eastern District of Michigan and Sixth Circuit Court of Appeals Judge Ronald Gilman in so ruling, this means that every federal judge to rule specifically on the Bush administration’s legal excuses for violating FISA has rejected those excuses.

…Judge Walker is the same Judge who is presiding over all of the telecom lawsuits. He has ruled against telecoms in the past, most notably refusing to dismiss the lawsuits on this ground: “because the very action in question has previously been held unlawful, [telecoms] cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal” [Decision at 68; emphasis added].

This history of the telecoms — faring no better in court than the President has — gives the lie to Fred Hiatt’s deeply (and typically) dishonest Washington Post Editorial today — by way of praising Obama’s FISA stance — that telecom immunity is a good idea because “The likelihood of prevailing — or even getting very far — with such lawsuits is low.” The exact opposite is true: it’s precisely because the telecoms know they are in severe danger of losing in court — because they broke multiple laws — that they and the White House are so desperate for amnesty.

…The central excuse from leading Democratic advocates of telecom immunity — that the poor telecoms are unfairly hamstrung in these lawsuits by the President’s assertion of the “State Secrets” privilege from using the evidence that shows they’re innocent — was gutted by yesterday’s ruling. That excuse was false all along, since FISA explicitly provides that any party can submit even classified evidence to the court. [ link ]

UPDATE

This is the kind of justice that only an endemic surveillance state can come up with, and displays the kind of verbiage that would impress even Donald Rumsfeld.

Kudos to all the members of the Al-Haramain legal team — Ashlee Albies, Steven Goldberg, Bill Hancock, Zaha Hassan, Lisa Jaskol, Tom Nelson, and Jon B. Eisenberg who describes some of the bizarre turns and twists in the Kafka-esque case in his article entitled Suing George W. Bush: A bizarre and troubling tale

A week later, I was arguing the case before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco. Hogarty told me beforehand that if I said anything during the hearing that risked a public disclosure of classified information, she would stop the proceedings and clear the courtroom, suggesting I would likely suffer unspecified but unpleasant consequences.

In the middle of my argument, Judge Margaret McKeown asked me what information we needed from the Document to demonstrate our clients’ standing to sue under FISA. I was at a loss. When Judge McKeown pressed me, I said: “I cannot tell you. I have a sealed filing in this case.” When she pressed further, I said: “What’s in the Document, I cannot mention it today.” This was not my most eloquent moment as a lawyer.

Then, DOJ attorney Thomas Bondy stood at the lectern and delivered a mind-boggling rebuttal to our argument that the surveillance of our clients was no longer a secret.

“They don’t know,” Bondy said. “Let me make clear what I mean by that. When plaintiffs explain what they mean when they say they, in quotes, ‘know,’ they don’t know. What they mean when they say that is that they — although they think or believe or claim they were surveilled, it’s possible they weren’t surveilled … When they say they know, what they mean by that, on their own terms, is that they don’t know.”

Bondy went on to argue “it is absolutely clear and undisputed that the world at large, the whole world, does not know whether or not any of the plaintiffs were surveilled.” This incredible exchange ensued:

Judge McKeown: The world knows what they think they know, whatever that is that they know.

Bondy: Exactly. And that’s less than actually knowing whether it’s true.

Judge McKeown: Boy, we are really splitting the “knows.”

At this point Judge Michael Hawkins interjected: “Sounds like Donald Rumsfeld.”

Bondy: But your honor, let me be plain. If it’s entirely possible, and I’m not saying one way or the other, obviously –

Judge McKeown: Right, because you don’t yet know.

Bondy: It’s entirely possible –

Judge McKeown: And we can’t know.

This is from Senator Patrick Leahy’s website regarding immunity and the Inspector General requirement of FISA.

I believe the rule of law is important. I do not believe Congress should seek to take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties, and the only viable avenue of accountability for the administration’s lawlessness.

I commend House Majority Leader Hoyer and Senator Rockefeller, who negotiated this legislation, for incorporating several additional protections that bring it closer to the Judiciary Committee’s bill.

I note, in particular, the requirement of an Inspector General review of the administration’s warrantless wiretapping program. It is a provision I have advocated throughout the course of consideration of these matters. This review will provide for a comprehensive examination of the facts of that program and should prove useful to the next President. I believe still more protections for privacy and civil liberties are necessary, and if this bill becomes law I will work with the next administration on additional protections.

Despite some improvements to the surveillance authorities the bill authorizes, I cannot support this legislation. This administration violated FISA by conducting warrantless surveillance for more than five years. They got caught. The apparent purpose of Title II of this bill is to ensure that they will not be held to account. That is wrong. I will, therefore, oppose cloture on the motion to proceed to the measure. If the Senate proceeds to the bill, I will then support amendments to its unaccountability provisions, including an amendment which I am cosponsoring to strike the immunity provisions. If those are unsuccessful, I will vote against the bill because it remains designed to avoid accountability.

I wouldn’t mind seeing Patrick Fitzgerald in that role. Hopefully he will not be too busy serving his sentence on the Attorney General’s Advisory Committee and his recent marriage to lend a hand.

In the bizarre court case of the Al-Haramain Islamic Foundation that was mentioned here last July, Judge Walker yesterday gave the plaintiffs 30 days to prove that they are indeed an “aggrieved party” to show legal standing in the matter. Judge Walker also reaffirmed FISA as the conduit which government surveillance must be run through. ArsTechnica describes the situation and the ruling:

The Foreign Intelligence Surveillance Act provides the “exclusive means” for electronic eavesdropping within the US, a federal district court judge in California ruled yesterday, and explicitly supersedes the government’s claim that it may invoke the “state secrets” privilege to shield documents from court scrutiny. The plaintiffs in the suit against the government, the Al-Haramain Islamic Foundation, now have 30 days to show—without recourse to secret documents—that they were targets of government wiretaps. But the language of the decision also strongly suggests that if they do, any surveillance that occurred outside the bounds of FISA will be found unlawful, notwithstanding the president’s assertion of an “inherent authority” to ignore the law in the name of national security.

The Al-Haramain case has its origins in a government blunder that tore a rare hole in the veil of secrecy surrounding the National Security Agency’s surveillance programs: The foundation was accidentally given a classified document, which the government has since reclaimed, showing that its directors’ telephone conversations had been intercepted. An appeals court later ruled that, notwithstanding the inadvertent disclosure, that document should remain under seal, and the government has sought to invoke its privilege to protect state secrets in order to have the case dismissed.

But in yesterday’s 56-page opinion, Judge Vaughn R. Walker ruled that in Section 1806 of the Foreign Intelligence Surveillance Act, Congress provided specific procedures by which “aggrieved persons” may have sensitive information reviewed in camera by the courts, thereby preempting the common law protection for state secrets pertaining to the type of surveillance covered by FISA. And more broadly, Walker insisted that FISA really does provide the sole, binding process by which the executive branch may conduct foreign intelligence wiretaps.

“Congress appears clearly to have intended to—and did—establish the exclusive means for foreign intelligence surveillance activities to be conducted,” wrote Judge Walker in his opinion. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

There remains one last catch-22, however. FISA trumps the state secrets privilege only in cases involving “aggrieved persons.” But plaintiffs must prove that they are “aggrieved” without making use of the secret document they had obtained before the law will permit documents, and others concerning surveillance of Al-Haramain, to be used in court. Exactly what standard of proof they must meet, however, is unclear because there is so little case law governing the question.

…If FISA provides a real and binding limit on the surveillance power of the executive, after all, then it is hard to avoid the conclusion that the NSA’s secret program of warrantless surveillance was indeed illegal. “If we get standing,” predicted Eisenberg, “we win.”

[ link ]

Back in August of 2006, Glenn Greenwald cites Jonathan Turley regarding a similar case:

The far more difficult question is the implication of Taylor’s ruling. If this court is upheld or other courts follow suit, it will leave us with a most unpleasant issue that Democrats and Republicans alike have sought to avoid.

Here it is: If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order.

This has been the most bizarre part of the NSA scandal all along: the President got caught red-handed violating an extremely clear law — he admitted to engaging in the very behavior which that law says is a felony punishable by up to 5 years in prison and a $10,000 fine — and yet official Washington (the political and pundit classes) simply decided to pretend that wasn’t the case. [ link ]

Indeed, by granting retroactive immunity, the Senate like the Congress will be violating Article I, Section 9 of the Constitution as well, which unambiguously states “No Bill of Attainder or ex post facto Law shall be passed”. It is likely that the equal protection clause of the 14th Admendment is also being violated by granting a class of Americans immunity from the law.

“The right to equal protection of the laws doesn’t just mean that it’s unconstitutional to pass discriminatory laws against some groups of Americans. It also means that it’s unconstitutional to pass laws that give certain groups special impunity to violate the law. Having laws apply to some of us, but not to others, isn’t equal protection.” The FISA Amendments Act gives telecommunications corporations the retroactive privilege of violating the law by spying on Americans. I don’t get that right, though, and neither do you.”

If the warrantless surveillance is illegal, then those who authorized or implemented the program are guilty. In the face of such lawbreaking, Washington remained silent. Not content with just letting it slide, the House and the Senate are now actively conspiring to undermine the Constitution by passing ex post facto immunity through the FISA revisions.

For the few Democrats who are fighting FISA, Judge Walker’s decision should provide some political cover for coming out strong on their amendment to strip immunity from the bill.

“A reason given for agreeing to the current form of the FISA bill…was that the exclusive means language”—a provision reasserting that foreign intelligence surveillance must occur pursuant to FISA—”was part of the trade-off the Democrats had made.” This ruling makes clear, as critics of the FISA amendments compromise have argued all along, that FISA is already the “exclusive means” of lawful surveillance, not a new concession won by Democrats in Congress.

Even Obama can find in this ruling a rationale for reversing himself on his reverse, if he thinks it important to uphold his oath of office and defend the Constitution against all enemies foreign and domestic. There is no longer any political cover to be found in supporting a compromised bill, only campaign contributions from the affected industries.

Cheer up! It’s Independence Day on Friday!

The “After Downing Street” folks plan some freedom-loving fun at Jefferson’s old manse where President Bush has been invited to speak for the Naturalization Ceremony. I’d be there if I could.

The Unitary Executive is scheduled to disgrace the grounds of Thomas Jefferson’s house, Monticello, in Charlottesville, Va. During a July 4 naturalization ceremony, immigrants will swear to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic” at an event besmirched by the presence of the Constitution’s leading domestic enemy. Jefferson’s Declaration of Independence from King George faulted him for harassment by his troops, elevating the military above civilian power, denying people a fair trial by jury by transporting them overseas to be tried on false accusations, and other abuses that have been matched by our current King George. He has claimed the power to ignore laws, to rewrite laws, to adhere to secret laws, to discard habeas corpus, to spy without warrant, to detain without charge, to torture, to murder, and to lie the nation into wars of conquest. All citizens, old and new, have a duty to support and defend the Constitution, a document that requires the impeachment of a president as criminal and abusive as the current one. [ link ]

Retroactive Update: Shredding the Fourth on the Fourth: A Special Independence Day Commentary by Joseph Galloway

Kudos to Keith Olbermann for taking a more critical look at Obama’s position on FISA. The video mirrored at Raw Story is from MSNBC’s Countdown, broadcast June 30, 2008.

“Senator, the Republicans are going to paint you as soft on terror no matter how you vote on FISA,” Olbermann continued, addressing Obama directly. “This political tight-rope act that you’ve tried on FISA the last two weeks, which from the outside seems to have been intended to increase the chances of your election, probably hasn’t helped that chance in the slightest.”

Olbermann then pointed out that there is a loophole in the FISA legislation, since it immunizes the telecoms only from civil liability, leaving them and administration officials subject to criminal prosecution. He advised that Obama should vote for the FISA bill, but after its passage he should “say, loudly, that your understanding of this bill is such, that if you are elected, your Attorney General will begin a full-scale criminal investigation of the telecom companies.”

“Explain that you are standing aside on civil immunity,” concluded Olbermann, “not just for political expediency, but for a greater and more tangible good: the holding to account of the most corrupt, the most dangerous, and the most anti-democracy presidential administration in our long history. … The Republicans are going to call you the names any which way, Senator. They’re going to cry regardless, Senator. And as the old line goes: Give them something to cry about.”

Full transcript here.

UPDATE Emptywheel lays out several responses to the Olbermann-Obama “Master Plan”.

This one comes from a comment by Paul Wermer in the San Francisco Chronicle:

In the current congressional debate on FISA and telecom immunity, one point seems ignored: One important check on government abuse is resistance to illegal orders. By granting immunity to companies that follow illegal orders, the only penalty that might arise would come from resisting illegal orders.

Business responds to risks and rewards. If the only risk is from refusing to follow illegal orders, then businesses will cave to abusive administrations every time. This is not a good precedent. [ link ]

UPDATE

This would be as good a time as any to remember Robert F Kennedy’s argument against the concept of retroactive immunity.

Thanks to Jeanine Molloff at the Huffington Post for reminding her readers that there are options besides impeachment that can be utilized by Congress. [ The Character Issue, FISA and The Constitution ]

In hindsight, when Pelosi stated that …”impeachment is off the table,” she was guilty of the very…”indifference or quiescence,” needed to increase the powers of an imperial presidential dictatorship. Ironically, impeachment is not the only check against presidential abuses. Members of Congress do not need to successfully impeach in order to hold a ‘grand inquest’ into newly claimed and questionable presidential powers. The action of a ‘grand inquest,’ and the convening of such an inquest could serve as the formal objection required to prevent such an escalation of executive overreach. All that is needed to place an abusive executive ‘in check,’ is for the House Judiciary Committee to formally convene this same GRAND INQUEST, regardless of impeachment status. Given the fact, that most congressmen ARE ATTORNEYS, makes their inaction, inertia and quiescence–inexcusable.

The critical element here is formally objecting to the administration’s exceedingly broad interpretation of executive privilege. Molloff points out the danger in Congressional acquiescence, citing the concurrence of Justice Jackson on Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952) .

In practical terms, this decision allows for the potential UNILATERAL INCREASE IN EXECUTIVE POWER WITHOUT CONGRESSIONAL OVERSIGHT OR A CONSTITUTIONAL CONVENTION TO AMEND SAID CONSTITUTION, GRANTED AS A DIRECT RESULT OF CONGRESSIONAL INACTION. In other words, if a president systematically and repeatedly asserts any prerogative, (such as declaring war without congressional oversight and permission, or revoking civil rights without due process), and does so routinely, with UNQUESTIONING CONGRESSIONAL KNOWLEDGE–THEN THAT POWER OR PRACTICE BECOMES A CONSTITUTIONAL POWER OF THE EXECUTIVE, THAT CAN NEVER BE INFRINGED UPON BY THE COURTS, CONGRESS OR THE PEOPLE.

The stakes here are high, people. Far from lodging objections to executive overreach, Congress has been quiescent. They risk losing their footing as an equal branch of government to the Executive, and not just for this Congress, but forever. What goes here for Barack Obama, applies equally forcefully as a message to the House of Representatives:

Obama must clarify his positions on the return of constitutional rule and the balance of power between the Judiciary, Legislative and Executive branches, in a concrete and precise fashion. This not only speaks to his intentions regarding the constitution he professes to love, but also addresses the very nature of presidential leadership. Is Obama going to embrace the Bush/McCain Unitary Executive form of presidency, which establishes a presidential dictator and reduces congress to writing blank checks, or will he restore constitutional rule with the president working as an equal branch of a tripartite democratic republic? Will Obama respect the rights of citizenry as established in the constitution, or will he bashfully accept the role of ‘benevolent’ presidential dictator, thus relegating the Bill of Rights to a quaint notion? Finally, will a President Obama and the corporate ‘centrist’ democrats line up eagerly to accept the ongoing slide to fascism; or will they embrace the promise of…”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated , and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” (4th Amendment, US Constitution).

Inaction will make a truism of the old maxim that “The only thing necessary for the triumph of evil is for good men to do nothing”. If not Impeachment, then at least we must insist on a Grand Inquest, and set the precedent that the *is* a balance of power between our branches of government, and proclaim yet again the principle that no one is above the law, and certainly not an Executive who has arrogated to himself powers which rightfully belong to Congress and the people.