Barack Obama, Surveillor-in-Chief

By Michael J.W. Stickings

Barack Obama has done a lot of really good things as president, and I have remained for the most part enthusiastically supportive, particularly when it came to getting him re-elected last year, but I find his conduct of "national security," notably the drone war and surveillance, generally abhorrent.

And his speech on surveillance last Friday was just that. Far from being the pragmatic leader pulling the country together on a complex problem, as for example he did on race and racism following the Zimmerman verdict, he hid behind a veneer of (faux) transparency and doubled down on the assault on liberty and privacy over which he is presiding.

As Conor Friedersdorf wrote:

On Friday, President Obama spoke to us about surveillance as though we were precocious children. He proceeded as if widespread objections to his policies can be dispatched like a parent answers an eight-year-old who has formally protested her bedtime. He is so proud that we've matured enough to take an interest in our civil liberties! Why, he used to think just like us when he was younger, and promises to consider our arguments. But some decisions just have to be made by the grownups. Do we know how much he loves us? Can we even imagine how awful he would feel if anything bad ever happened while it was still his job to ensure our safety?

Friedersdorf then helpfully proceeds to break down the "disinformation," the "weasel words," the "impossible-to-believe protestations," and the "factually inaccurate assertions." For example:

The passage: 

I'm also mindful of how these issues are viewed overseas because American leadership around the world depends upon the example of American democracy and American openness, because what makes us different from other countries is not simply our ability to secure our nation.

It's the way we do it, with open debate and democratic process.

But his surveillance politics and policy, whatever one thinks of it, has never been characterized by open debate. There are secret sessions conducted by Congressional committees -- and secret hearings conducted by FISA court judges -- where hugely consequential policy decisions are made. If the real world depends on the example of American openness, we are failing the world. The example we're setting is that it's okay for governments to secretly intercept the private communications data of all citizens. How would that work out in most countries? The official secrecy surrounding the NSA has already corroded U.S. democracy in real ways.

If this were Bush, or any Republican, Democrats would be outraged. But because it's Obama, many on the left have turned into surveillance state apologists. And they join those on the right, as well as throughout the establishment "center," who have little regard for liberty and privacy in any event.

But let's be blunt about this: President Obama is lying to the American people, and to the world, and in so doing is undermining the significant progress he has made in other areas, like health care and women's rights.

And that should be abhorrent even to his most ardent supporters.

Obama the hypocrite, Snowden the patriot

By Michael J.W. Stickings

"Snowden made me do it."

There was yet another Guardian report today (this one not authored by Glenn Greenwald) of yet another troubling revelation, via Edward Snowden, about the extent of the U.S. surveillance state:

The National Security Agency has a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens' email and phone calls without a warrant, according to a top-secret document passed to the Guardian by Edward Snowden.

The previously undisclosed rule change allows NSA operatives to hunt for individual Americans' communications using their name or other identifying information. Senator Ron Wyden told the Guardian that the law provides the NSA with a loophole potentially allowing "warrantless searches for the phone calls or emails of law-abiding Americans".

The authority, approved in 2011, appears to contrast with repeated assurances from Barack Obama and senior intelligence officials to both Congress and the American public that the privacy of US citizens is protected from the NSA's dragnet surveillance programs.

Yes, that's right: warrantless surveillance of American citizens. (And you still see no problem with this, surveillance state apologists?)

Apparently all this has gotten to be too much even for noted surveillance state enthusiast Barack Obama:

President Obama said Friday he would pursue reforms to open the legal proceedings surrounding government surveillance programs to greater scrutiny, the administration's most concerted response yet to a series of disclosures about secret monitoring efforts.

At his first full news conference in more than three months, Obama said he intends to work with Congress on proposals that would add an adversarial voice -- such as a lawyer assigned to advocate privacy rights -- to the secret proceedings before the Foreign Intelligence Surveillance Court.

In addition, Obama said he intends to work on ways to tighten one provision of the Patriot Act -- known as Section 215 -- that has permitted the government to obtain the phone records of millions of Americans. He announced the creation of a panel of outsiders -- former intelligence officials, civil liberties and privacy advocates, and others -- to assess the programs and suggest changes by the end of the year.

"It's not enough for me, as president, to have confidence in these programs," Obama said in the White House East Room. "The American people need to have confidence in them as well."

All of this is quite promising, if not nearly enough (really, a privacy lawyer, that's it?), but it's clear that the president has been forced into doing this -- by media reports, public outcry, and falling approval ratings -- and for that reason it's reasonable to be skeptical of his sincerity, and of his commitment to ensuring there is anything like serious oversight and accountability. 

Read more »

Paterson picks Gillibrand

By Michael J.W. Stickings

(Updating my post from earlier today.)

The "confusing and even embarrassing two-month ordeal," as the Times put it, is finally over. As expected, and at long last, New York Governor David Paterson has named Rep. Kirsten Gillibrand to fill Hillary's vacated spot in the Senate.

Earlier, I suggested that Gillibrand, who represents a pro-Bush district, is "almost a Republican." Almost? I'd say she pretty much is, what with a 100% approval rating from the NRA, support for the Iraq War, and, as she herself put it, "one of the most conservative" voting records in the state, including voting for the FISA bill that included telecom immunity and to lift the ban on the possession of semi-automatic weapons in D.C. Her father was close to former Republican Governor George Pataki. She even once interned for former Senator Al D'Amato, a conservative and hyper-partisan Republican. (For more, see Eve Fairbanks' "Ten Things You Didn't Know About Kirsten Gillibrand" over at The Plank.)

What a horrible, horrible pick.

(Much more reaction at Memeorandum.)

Intelligence -- the next phase

By Carol Gee

President-elect Barack Obama got his first in-depth regular intelligence briefing from DNI Mike McConnell, according to Joby Warrick at the Washington Post. Obama was asked about this at his first news conference yesterday, but he declined to discuss it in any depth. To quote the Friday article (Post's links):

For nearly an hour yesterday, President-elect Barack Obama met with two of the country's top intelligence officers for an important rite of passage: his first full-blown classified briefing on national security.

. . . The Obama camp has offered no hints of how it plans to fill top intelligence posts, including the positions of director of national intelligence, now held by Mike McConnell, and CIA director, held by Michael V. Hayden. The decision is particularly complicated, because the rules and traditions for selecting intelligence officials are somewhat different from those for other administration appointees.

Unlike the directorship of the FBI, the top posts at the CIA and the Office of the Director of National Intelligence do not come with a set term that transcends presidential administrations. And, while both officials are appointed by the president and serve at his pleasure, the White House has broader discretion in filling intelligence posts and can elect to keep the current leadership in place.

We did hear a bit, however. P-E Obama said that intelligence gathering can always improve, adding that he believes there has been improvement already. Already in the national security groove, he declined to tell MSNBC's Candy Crowley whether anything he heard "gave him pause."

President-elect Obama now has an official transition website, "Change.gov." Here is what the "agenda/homeland security" section has to say about Intel and civil liberties. To quote:

Improve Intelligence Capacity and Protect Civil Liberties

• Improve Information Sharing and Analysis: Barack Obama will improve our intelligence system by creating a senior position to coordinate domestic intelligence gathering; establishing a grant program to support thousands more state and local level intelligence analysts and increasing our capacity to share intelligence across all levels of government.

• Give Real Authority to the Privacy and Civil Liberties Board: Created by Congress and recommended by the 9/11 Commission, the Privacy and Civil Liberties Board needs to be substantially reformed and empowered to safeguard against an erosion in American civil liberties. As president, Barack Obama will support efforts to strengthen the Board with subpoena powers and reporting responsibilities, will give the Board a robust mandate designed to protect American civil liberties and will demand transparency from the Board to ensure accountability.

• Strengthen Institutions to Fight Terrorism: Overseas, Barack Obama will establish a Shared Security Partnership Program to invest $5 billion over three years to improve cooperation between U.S. and foreign intelligence and law enforcement agencies. This program will include information sharing, as well as funding for training, operations, border security, anti-corruption programs, technology, and the targeting of terrorist financing.

Warrick's WaPo article speculated about heads of Intelligence Services replacements and revealed that McConnell expects to be replaced as DNI, but that General Hayden might be willing to continue to head the CIA, stating that,

Within intelligence circles the speculation is centering on former intelligence officials who are close to the Obama team, including John O. Brennan, the former interim director of the National Counterterrorism Center, and Rep. Jane Harman (D-Calif.), former ranking minority member of the House intelligence committee. . .

Both men [Haden & McConnell] assumed their current jobs in Bush's second term and were not directly tainted by the controversies over faulty intelligence about weapons of mass destruction in Iraq, or the decision to use waterboarding and other harsh techniques on suspected terrorists in secret CIA prisons.

When the new Foreign Intelligence Surveillance Act bill was passed in June 2008, I was very disappointed that (then) Senator Obama voted for it. We now know that his vote was clearly a manifestation of his Pragmatist self, intended to reinforce his national security credentials for the election. My post written at the time includes his statement about what drove his decision. My hope today is that his Constitutional Law professor self will kick in and make changes that will reinstate our lost civil liberties. Time will tell.

The Obama transition website, Change.gov, has a section titled "American Moment," where readers are invited to "share your story" or "share your vision." Transparency and participation being the hallmarks of an Obama presidency, I am thinking of sending our next president (ONP, as opposed to OCP, our current president) some thoughts from my Civil Libertarian self. Any suggestions?

(Cross-posted at South by Southwest.)

Why bother with a constitution?

By Carol Gee

More Power to you, Mr. President? Actually, we the American people do not think so. We believe we still have the constitution, thank you very much. According to Matt Berman, who writes "The Daily Muck" (9/15/08) at TPM Muckraker:

A new AP-National Constitution Center poll shows that a majority of Americans are opposed to giving more power to the President, even at the expense of national security or the economy. The poll shows that two-thirds of Americans are opposed to shifting the balance of government towards the executive, evidence of wide-ranging skepticism of the advances in executive power during the Bush years. The poll also found more of a split when Americans were asked if Congress should be awarded greater power in times of economic or national security hardships. (AP)

I am a Constitution Voter Campaign -- At the ACLU Blog (9/15/08), Caroline Fredrickson on Salon Radio, on the Constitution Voter Campaign talks about how useful it would be to have the presidential candidates talk about Constitutional issues.

Our current president (OCP) started ignoring the Constitution by spying on Americans without a legal warrant some time ago. A great post illustrates an example. It cleverly and succinctly summarizes the new Barton Gellman material, with the five main points of the book's revelations. It came from ACLU Blog, and was written by Amanda Simon (9/15/08): "Ashcroft Defends Constitution in Spying Clusterfrack. Happy Opposite Day!"

Our current president (OCP) had massive help from the private sector in shredding our Constitution's privacy protection -- At the website, Dandelion Salad [by Tom Burghardt of Global Research, September 11, 2008], comes the sordid story. To quote:

What do the NSA's warrantless wiretapping program and enterprising capitalist grifters have in common? Workarounds...and lots of them. The kind that aren't covered by any law.

Two highly-disturbing reports by CNET and the London Review of Books describe how government intelligence agencies and niche telecom providers have teamed-up to subvert our privacy rights-while providing security agencies with real-time cell phone tracking capabilities.

. . . And with a swarming multitude of new companies crawling out of the woodwork to "service" the "homeland security" market, why its a snap. Firms such as ThorpeGlen, VASTech, Kommlabs, and Aqsacom all sell what CNET's Chris Soghoian describes as "off-the-shelf data-mining solutions to government spies interested in analyzing mobile-phone calling records and real-time location information."

Called "passive-probing" data mining, these companies are carving-out lucrative niche markets. Only there's nothing "passive" about these intrusive operations undertaken in concert with a veritable army of state and corporate spooks.

. . . And there you have it. Niche telecom providers are the latest players in the West's burgeoning "terrorism industry," one that "keeps us safe" by destroying our privacy and our rights with hefty profits all around. Call it another seamless victory for the market's "invisible hand" that clenches as it morphs into the state's iron fist wrapped in American flags and blood-drenched corporate logos.

Congress has sometimes been complicit with OCP in the business of warrantless wiretapping, even when Democrats were in charge. To give them their due, however, they have held many hearings revealing some truth about the extent of damage to the principles of the Constitution's Bill of Rights. For example, hats off to Senator Russ Feingold (D-WI) for recently holding this Judiciary subcommittee hearing: "Restoring the Rule of Law."# It was this desire to dial back the executive power overreach that was Bush's primary governing philosophy that led the senator to call together nearly a dozen experts Tuesday morning for the Judiciary subcommittee hearing. To quote:

Some Democrats -- frustrated at banging their heads against a wall much of these last eight years, as they've watched George W. Bush run roughshod over the Constitution and the rule of law -- are determined to return some semblance of order once the president leaves office next year.

The FBI became the agency charged with domestic intelligence gathering during the post-9/11 reorganization of the government's intelligence and homeland security programs. But like other organizations in the executive branch, they have become less and less interested in civil liberties over the years. The following story is an illustration of what Congress is trying to do about that. "Mueller Grilled Over Claims New FBI Powers Amounts to Racial Profiling, More Spying,"* by Robert Chlala for The Public Record on September 19, 2008. To quote:

. . . what the new framework Mueller described would actually do is allow agents to begin "assessments" and surveillance without first obtaining factual evidence. Additionally, the guidelines would permit agents to use race and ethnicity as a factor for triggering investigations.

Despite the concerns raised during the hearings and pressure from civil rights groups, Attorney General Michael Mukasey plans on signing the guidelines into law on Oct. 1.

These guidelines represent only some of a series of changes in law enforcement set in place the last year, increasing the power of federal, state and local authorities. Other new policies include the proposal to eliminate restrictions on local and state law enforcement intelligence gathering, the recruitment of over 15,000 new informants, and the creation of local-level "fusion centers" that gather and monitor masses of criminal and non-criminal information on individuals.

While the FBI guidelines have not been released to the general public, several members of Congress and key staffers from the Judiciary Committees of the House and Senate pressed and received limited access to the draft. Department of Justice briefings and a speech by Attorney General Michael Mukasey in August also shed light on the topic.

Evidently protest is not protected in the copy of the Constitution carried by OCP. The Secret Service, under the Treasury Department, is charged with the protection of the President and Vice President, as well as of the candidates currently running for those offices. They are very good at taking their marching orders from OCP, who ignores Constitutional rights under the guise of maintaining safety. This perfect example "Secret Service order police to block McCain protesters,"* was a post at The Raw Story by David Edwards and Muriel Kane on September 17. To quote:

. . . Leaders of the protest, which had been arranged and publicized by local unions and the Ohio Democratic Party, said that as many as several hundred people had been expected to attend, but police were not letting them through roadblocks surrounding the area.

ACLU Calls for Investigation into Civil Liberties Violations at RNC -- During the Republican National Convention there were mass arrests, police raids on private homes and the detention of several journalists. This comes from my ACLU newsletter, and is a reminder why I am so grateful for the ACLU's long battle to protect our rights under the Constitution. To quote:

"Attempts by law enforcement to squelch lawful political speech and stifle the press have no place in our democracy and are unacceptable," said Anthony D. Romero, Executive Director of the ACLU. "Political conventions should be a showcase for free expression, not a venue for bullying and intimidation."

The ACLU specifically called for an investigation into possible violations of the First and Fourth Amendments, including:

* The arrest of reporters trying to gather the news;
* The mass arrest of hundreds of peaceful protestors;
* The surveillance and subsequent raids on several activist groups and private homes; and
* The confiscation by law enforcement agents of constitutionally-protected private property.

The ACLU affiliate office in Minnesota has assembled legal counsel for many of the reporters and peaceful protesters arrested at the protests and has also filed a lawsuit in federal court calling for the release of boxes of literature that were confiscated during raids.

Why bother with the Constitution at all when Homeland Security, under the cover of Keeping Us Safe, can intrude into Sesame Street, of all things? I give up. "Homeland Security, Sesame Style,"* by Jeff Dufour and Patrick Gavin (9/1808), at DC Examiner, explains. To quote:

In a move that will make Bush administration detractors bring back those duct tape jokes again, the Department of Homeland Security has partnered up with the famous children's show.

"We all want our children to feel safe in this world," said Meryl Chertoff, wife of Homeland Security Secretary Michael Chertoff, at a ceremony held at the John Tyler Elementary School to announce the partnership. "And who better to do that than our Sesame Street friends, Grover and Rosita!"

. . . As you can imagine, the partnership is aimed at children, and seeks to encourage family preparedness plans in the case of emergencies.

Hat Tip Key: Regular contributors of links to leads are "betmo"* and Jon#.

(Cross-posted at South by Southwest.)

"I pledge allegiance...

By Carol Gee

. . . to the flag of the United States of America, and to the republic for which it stood,"

said Daniel Ellsberg, July 25, 2008, on Glenn Greenwald's Salon Radio program debut. Ellsberg stated that this is the way he would have to say the Pledge of Allegiance today, given the recent passage by Congress and signing by the President, of the new Foreign Intelligence Surveillance Act.

Congress fails to uphold the Fourth Amendment to the Constitution -- Greenwald and Ellsberg both feel that the Senators and Representatives who voted for this legislation failed to uphold their basic oaths of congressional office. Though Ellsberg said he will vote for Senator Barack Obama, he does not feel that any president, including Obama, will willingly cede presidential powers once they have been conferred. Salon's debut podcast yesterday did not disappoint. I recommend this a fascinating half hour plus conversation on history joined with the current sorry state of Constitutional protections in the USA.Ellsberg believes that the republic is no more; Greenwald's term for the current definition of our form of government is "empire." To quote from Greenwald's post:

Knowing that he was risking life imprisonment, Ellsberg leaked the Pentagon Papers to the New York Times in an attempt to alert the public to what the Government was doing . . .

For his efforts, Ellsberg was subjected to extensive warrantless eavesdropping by the Nixon White House, had his psychoanalyst's office invaded and searched at Nixon's behest in an attempt to obtain incriminating information about him, and was arrested and then brought to trial where he faced life imprisonment for having leaked the report (though the charges were ultimately dropped as a result of the Nixon administration's misconduct towards him).

In countless ways, Ellsberg embodies exactly what our political system has been so conspicuously and tragically lacking, and he has become one of the most insightful analysts of our current political crisis. My discussion with Ellsberg can be heard here by clicking PLAY below [Glenn has the link]:

Congressional leaders fail to uphold ethical standards -- House Speaker Nancy Pelosi and Rep. John Boehner will jointly appoint former House Member and head of the CIA, Porter Goss, to the new House ethics board. (H/T to "emptywheel") To quote from The Hill's story:

The appointment of Goss, a prickly personality who left the CIA after a short, turbulent tenure, surprised even some Republican members of Congress. Several shook their heads in disbelief when told he was named to the board.

While he was chairman of the House intelligence committee, Goss opposed launching an investigation into the Valerie Plame CIA leak case.

Goss is close to Boehner and served with Pelosi on the intelligence and ethics panels. . .

Republican Conference Chairman Adam Putnam (Fla.) said he supported Goss’s appointment, although he didn’t know why the former senior GOP member would want to come out of retirement to take it.

“[Goss] is a man of impeccable character, integrity and conviction and I can’t imagine why he wanted to take this job,” Putnam said.

Congress fails in its oversight responsibilities -- The House Judiciary Committee has been holding hearings on Presidential power, and on the Bush administration's use of torture against its enemies. It has not yet taken up the remedy of impeachment, and in all likelihood will not do so during its current term. Dandelion Salad posted about last night's pertinent episode of "Bill Moyer’s Journal: Torture Hearings + Jane Mayer + Fritz Hollings." It offers video links to the committee's torture hearings, and to Moyers' interview with Jane Mayer, author of a recent book, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS. The third video link is to Moyers' program-concluding interview with former Senator Fritz Hollings on the place of money raising in the lives of people in Congress. His book is MAKING GOVERNMENT WORK.

Additional references from Dandelion Salad:

• ACLU Obtains Key Memos Authorizing CIA Torture Methods


• Tell Congress: Reject Endless War and a Torture Cover-Up + video


• Terror, Torture, and the Dark Side + Bush officials could be charged with war crimes


• Bill Moyers Journal: Philippe Sands

(Cross-posted at South by Southwest.)

FISA bill signing: post mortem

By Carol Gee

7/18/08 -- Because I have been travelling, my posting here at The Reaction has been lacking. Today I am posting something I did on the 12th at South by Southwest that never made it over here. I do this because I am "still smarting" about this disaster, and wanted to share my "take" on it as I wrote it at the time -- for whatever it's worth. The post follows:

How did the courage of Congressional Democrats die, when it comes to protecting our citizens' civil liberties? What happened to their oaths of office in the face of OCP's (our current president's) massive assault on Fourth Amendment privacy protection. First, please look at WaPo transcript of what OCP said as he signed the new FISA bill: Bush remarks on signing of FISA bill. Here is an excellent article headlined, "Bush Signs Spy Bill, ACLU Sues" by Ryan Singel at Wired: Threat Level. To quote:

The American Civil Liberties Union filed suit Thursday over a controversial wiretapping law, challenging the constitutionality of the expanded spy powers Congress granted to the president on Wednesday.

The federal lawsuit was filed with the court just hours after Bush signed the bill into law.

Civil liberties advocates have not laid down and died, however. Read this excellent piece regarding what one of the key longtime advocate organizations thinks about the current moribund situation, etc.: "Interview with ACLU re: constitutional challenge to new FISA law," by Glenn Greenwald at Salon.com. To quote:

. . . the extraordinary fact that the surveillance program implemented by Congress yesterday does not merely authorize most of the President's so-called "Terrorist Surveillance Program" that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the "target" of the surveillance have any connection whatsoever to Terrorism, nor is there any requirement that the Government believe the "target" is an agent of a foreign power or terrorist organization, or even guilty of any wrongdoing at all.

. . . Sen. Chris Dodd -- whose stalwart, relentless efforts to stop this law were nothing short of heroic, as those efforts often provoked substantial hostility among many of his colleagues -- sent around the following email today to his mailing list highlighting the positive aspects of the battle:

Yesterday was a sad day for the United States Senate.

It is my hope that the courts will undo the damage done to the Constitution.

But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.

We came together – all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.

I'm sorry we weren't successful.

I just hope I'm lucky enough to have you by my side in the next fight, whatever that may be.

Thanks for all you've done.

Chris Dodd

. . . the only people outside the Executive Branch who have any real knowledge at all of how these illegal spying powers were exercised are a small number of Senators on the Intelligence Committee who have been briefed by Bush officials, but they are barred by law from saying what they know. Nonetheless, here is what one of those members -- Sen. Russ Feingold -- said during his remarks on the Senate floor regarding the new FISA bill, as highlighted by Howie Klein. In a minimally rational world, these revelations from Sen. Feingold would be major, major news:

I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure.

Important details about the ACLU lawsuits: Blogger emptywheel at Firedoglake discussed a number of and ideas about what might happen next to revive the question. To quote:

. . . one of the article's most intriguing elements: we have worked single mindedly under the assumption that, while many parts of the FAA might could be reversed or minimized through subsequent legislation with a new Congress, the retroactive immunity portion was irrevocable and final. That may, and I emphasize this is a tentative and weak may, not necessarily be the case.

If Congress could not do its job of checking an out of control executive, then there is only one branch left to do it, the judicial. I have not permanently given up hope, but it will be a long tough fight to revive it. The USA is a very sick patient now. We still need to work to save it.

(Cross-posted at South by Southwest.)

Media narratives, flip-flops, and the numbers

By Michael J.W. Stickings

Judging from the way the major news media, as well as some in the blogosphere, are covering the presidential race, you'd think Obama was on the verge of a major collapse, or that his campaign had turned into a complete disaster, and that the race had turned into McCain's to lose.

Flipping this way, flopping that way, pissing off the netroots and his heretofore enthusiastic progressive base on FISA and corporate immunity, appearing to shift on Iraq, assaulting the Constitution like a conservative, talking up guns and a closer union of church and state, veering shamelessly to the center on core issues like abortion and death penalty, sounding more and more like a Republican (and like Hillary in the long lead-up to the Pennsylvania primary) with each passing day, and exhibiting, as one of his more well-known and outspoken supporters labels it, "hubris," a campaign "far too cocky for its own good" -- with all this, and more, it hasn't been one of Obama's stronger periods, and he's been taking some major hits, not least because of how the media have presented it all.

Meanwhile, McCain's been having his own problems, but there hasn't been nearly as much talk from the talking heads about his own and much more egregious flipping and flopping and flipping back again on major issues like Iraq and immigration, nor about his ongoing attempts to suck up to the right, particularly to the religious right, and his otherwise completely ridiculous policy positions, including the absurd claim that he will balance the budget and an economic plan that even sympathetic conservative economists are generally uncomfortable with, and his abject ignorance on issues like Katrina and birth control.

Of course, it's not like Obama is getting purely negative media coverage -- maybe it's time for a pro-Obama SNL skit? -- and it's not like McCain continues to get a free pass from the media. But it does seem to me that Obama is being held to a different standard than McCain is, perhaps because expectations for Obama are so high -- and so low for McCain.

Regardless, the numbers tell a different story -- that is, not that one that has Obama on the verge of collapse. As Nate Silver points out, McCain is ahead in Missouri, but not by much, and his lead may be the results of a major advertising campaign there. Obama is ahead in New Jersey -- it's close, but Obama's massive money advantage should give him a boost there once the campaign gets underway in earnest. And Obama has even pulled closer in Alabama, as Republican a state as there is. Meanwhile, a new poll has Obama and McCain tied in another long-time Republican stronghold, North Dakota.

In other words, don't get lost in the weeds. The media have their own narrative to tell, and, as usual, it's not, if I may put it nicely, an entirely accurate one. Obama has high expectations to meet, and he hasn't been meeting all of them in recent weeks -- and I admit that I am genuinely disturbed by his position on FISA, his rethink on Iraq, and his shift to the right on several important issues -- but he's still doing extremely well where it matters: in terms of popular support.

A Constitution shredded

By Creature

I knew Barack Obama's yes vote for the constitutionally-flawed, immunity-laden FISA bill today was all but certain, but now that's it's done I'm even more furious than before. To give Bush what he wanted, to cover-up massive telcom and administration law-breaking, to throw in with the GOP and the likes of Rockefeller and Feinstein (on the Democratic side) is beyond the pale. Thanks for nothing, Barack Obama. If you ever return to teaching Constitutional law I hope you're proud that you are personally responsible for having one less amendment to teach.

Update: Senator Feingold is hopeful that under an Obama presidency today's FISA disaster can be fixed. Since I don't have much choice in the matter, I'll take my cues from Russ and keep my fingers crossed.

(Cross-posted at State of the Day.)

Examining an obsession about civil liberties

By Carol Gee

"Privacy advocates," "civil libertarians," "Fourth Amendment Constitutional activists," "Left Wingers," "Right-leaning members of the Libertarian Party," "Online activists," I am one of you. We are, indeed strange bedfellows.

What is the reality? I am trying to figure out why I have this obsession about protecting U.S. civil liberties. I wonder whether I am being too paranoid about the U.S. government spying on Americans. I am very curious about the actual facts of the current administration's (what I believe to be illegal) domestic surveillance program. I think about what it is about all this that is so bothersome to me, and to the others of us who regularly blog about the issue. I often look to those whose expertise has been so pivotal in this fight. Glenn Greenwald at Salon.com, whose links I have liberally used in this post, often states the reality in which I believe. Today's includes good insights on the administration's apparent motives for its massive spy effort. To quote from his current post:

. . . the reality is that the Government and the telecoms broke the law not for weeks or months, but for years -- well into 2007. They continued to do so even after the NYT exposed what they were doing. They could have brought their spying activities into a legal framework at any time, but chose instead to spy on Americans in exactly the way our laws criminalize. Manifestly, then, national
security had nothing to do with why they did it. The Bush administration chose to do so because they wanted to eavesdrop without oversight and to establish that neither Congress nor the courts can limit what the President does, and telecoms did not want to jeopardize the massive
government surveillance contracts they have by refusing.

Congress is not the least bit obsessed about this constitutional assault. Are they right and are we the ones who are losing our minds? We strange bedfellows feel that we are losing our constitutionally protected Fourth Amendment civil liberties of freedom from unreasonable search and seizure. I wonder why our elected representatives in Congress are not as obsessed about this as I am. After all, they are the ones who took the oath to uphold and protect the Constitution. I never took such an oath. Why does it seem to matter more to me; I am just one little blogger regularly pecking away about FISA at my little notebook's keyboard. But big blogs are also obsessed. "The FISA cavein is Congress' shame," says "Scarecrow" at Firedoglake. In one succinct and searing post this writer says it all, and so much better than I have been able to manage, given my current obsessive funk. To quote rather extensively from this fine writer's main points:

For six years, the Bush Administration and the nation’s communication companies have been illegally spying on Americans’ phone calls and e-mails. They did this in direct violation of the Constitution’s 4th Amendment and a federal statute – FISA. Both laws emphatically forbid such surveillance unless the government first obtains a warrant from an independent (eg, FISA) court.

. . . the US Senate is planning today to grant immunity to the lawbreakers, while sanctioning more warrantless surveillance, weakened oversight and a sham investigation.

. . . it wasn’t just a few, scattered incidents of warrantless surveillance, nor was the spying directed solely at suspected “terrorists.” The spying was massive, sweeping, and undifferentiated. Everyone’s privacy was vulnerable. . . the Bush Administration diverted, stored and searched through millions of our communications looking for . . . what? . . . we won't know how our private information becomes misinterpreted and misused – that is, used against us, without us knowing why or being able to do anything about it.

. . . Can you imagine the leaders of our present Congress signing the Declaration of Independence? Would any of them have insisted that the Constitution not be ratified unless it included a Bill of Rights?

. . . The nation’s founders were not such frightened people. Those who signed the Declaration of Independence pledged their lives, their fortunes and their sacred honor in open defiance of the world’s most powerful empire, a regime that would certainly have hanged them if they failed in their efforts to become free men. Now our Congress cowers because they fear a President with 25 percent approval ratings and a Republican Party that the electorate can’t wait to throw out of office.

Fourth Estate and candidate failures to uphold the Constitution obsess me. I ask why has the mainstream media, except for The New York Times, been mostly silent on this extremely important issue. And, most disappointingly, why does protecting civil liberties not matter as much to my chosen presidential candidate as it should. Sarah Wheaton at the 7/3/08 New York Times blog, "The Caucus," explored Senator Obama's dialogue with his supporters who disagreed with his stance on the current FISA bill up for debate today. To quote: “This was not an easy call for me,” Mr. Obama said in a statement posted to the diary of Joe Rospars, a top Internet adviser to the campaign. “I know that the FISA bill that passed the House is far from perfect.”

This examination of our obsession about civil liberties tells me that neither I nor my fellow protesters are crazy. We are focused, honed in, tuned in to a reality that is a big problem for the nation. It is good to remember that I am not the only one who feels this way. It is upsetting to remember that there are far too few of us to matter at this point. But that does not mean we will give up our obsession. We must not; too much depends on it.

Update: This is a sad day in FISA's history. The Senate approved HR 6304 by a vote of 69 ayes and 28 nays. Glenn has the full story, including the defeat of three "improving" ammendments prior to the final vote. Obama voted for the bill; Clinton against it. He also reports that Congress has now dropped to single-digit approval ratings. Is anyone surprised?

This day in history: July 9, 1787 - Constitution Convention. Convention discusses committee's report on ratio of representation in House.

(Cross-posted at South by Southwest.)

Final showdown on FISA

By Libby Spencer

Following up on Carol's excellent post, I also want to take a moment to urge you to take action on FISA today. The vote is scheduled for tomorrow so it's time for one last push to try and browbeat our feckless Senators into upholding the rule of law. Christy has the latest tools. I'm sure you need no further instructions outside of this info.

We are asking Senators to vote IN FAVOR of the Dodd-Feingold-Leahy Amendment (S.A. 5064 to H.R. 6304). We're asking for a NO vote on cloture, and a NO vote on the final bill as well.

Be sure to include this in your communications, since I've found the staff is often woefully uninformed on what legislation is pending. So call, send a free fax, or just send an email but do it today -- please.

(Cross-posted at The Impolitic.)

When does the rule of law not apply?

By Carol Gee

When our current president (OCP) first took the oath of office it was questionable whether it was a lawful election. But the Supreme Court of the United States had arbitrarily declared George W. Bush the winner of the 2000 election. Therefore his oath was taken under the rule of law, by our system of government. The application of the rule of law by OCP and his administration has been spotty ever since. It began with an emphasis on oil for the big corporations. Vice President Cheney saw to it that big oil had every advantage, and the deliberations regarding those plans have been unlawfully secret ever since. It plays out similarly to this story (hat-tip to betmo, who said, "this is perhaps the best analysis i've read yet of what's going on in africa..."), all over the world of oil: And, yes, I DO take it personally, May 13, 2008, headlined, "The REAL truth about the U.S. in Ethiopia and Somalia... Yes, it's about OIL and a 'narrow, extremely violent kleptocracy'..." And in the case of the United States, the word is Corporatocracy.

Congress, a co-equal branch of government to the executive, has been unable or unwilling to hold OCP and the members of his administration to account. Declaring early in her term as Speaker of the House that "impeachment is off the table," Representative Nancy Pelosi has given OCP "free reign/rein" to operate outside the rule of law. Even after it came out that the basis for going to war in Iraq was deliberately falsified, no high official has been held to account for operating outside the rule of law. The mechanisms for being able to get away with lawbreaking have included lack of Congressional oversight, asserting presidential powers under "unitary presidential theory" authority and the use of undue executive branch secrecy, as in this story. Think Progress headlined the story, "ACLU: Pentagon made unprecedented effort to hide human cost of war." To quote:

The ACLU today released documents regarding Navy investigations of civilians killed by coalition troops in Iraq and Afghanistan. The report notes that the administration has gone to unprecedented lengths to control and suppress information about the human cost” of the wars.

This first workday after Independence Day 2008 means that Congress will soon get back to work making new laws. Are they also bound to operate under the rule of law? Or can Members and Senators make the law and have it come our any old way, willy nilly? It looks as if "willy nilly" is about to happen once again with the Foreign Intelligence Surveillance Act. Here is the latest from Salon.com's Glenn Greenwald, one of our most articulate FISA gurus:

• Saturday July 5, 2008 -- In "The political establishment and telecom immunity -- why it matters," he makes these points. To quote:
  
  

  . . . the political elite are using to justify this bill, accompanied by the standard invocations of "National Security" which our Foreign Policy elite condescendingly toss around to justify whatever policy they're claiming is necessary to protect us. . . political establishment is not only about to pass a patently corrupt bill, but worse, are spouting -- on a very bipartisan basis -- completely deceitful claims to obscure what they're really doing. . . I would really like to know where people . . . get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law . . . That just isn't how our country works and it never was. We don't have a King who can order people to break the law.



• The courts have intervened, but often to no avail. "Another ruling by a federal judge" was Greenwald's July 4 post, in which he pointed out Congress' complicity in sanctioning law-breaking. To quote:
  
  

  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." More than anything else, this decision is but the most recent demonstration that, with this new FISA bill, our political establishment is doing what it now habitually does: namely, ensuring that the political and corporate elite who break our laws on purpose are immune from consequences.
  
  Judge Walker's decision (.pdf) was issued in the case of Al-Haramain v. Bush.

It will take years to repair the damage, if ever. But OCP's tenure is almost over now, you say. Get over it! Well, NO, is what I say. There is still time to act to block the abominable FISA s0-called compromise. Another favorite guru, Firedoglake posted the phone numbers we can use to call members of congress to urge them to stand up for our civil liberties under FISA. To quote:

And repeating myself once more time: "It's pretty simple, no immunity for the telecoms. Call your Senators today and tomorrow and the next day. Call them until they get this simple message: No Immunity for the Telecoms! And put the pressure on Obama. Make him step forth and take leadership. He asks us to believe we have the ability to bring about real change in Washington. Let's get him to make real change in Washington -- this week, on this issue." Here are the toll-free katymine numbers to use to make those call to your Senators and Senator Barack Obama:

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

Dial like our Constitution depends on it, because it does.

These days in history: Constitutional Convention - July 6, 1787. Convention debated committee report on state representation in Congress. On July 7, 1787: Madison addressed convention on topic of representation in Congress.

(Cross-posted at South by Southwest.)

Russ Feingold: A friend of the Constitution

By Creature

I understand the strain of thought that says we should leave Obama some rhetorical wiggle room so he can actually win the election come November. Personally, however, I think there's room for dissent and support. If anything, a little dissent, a little separation from the left helps Obama quell the right's chant that he's a radical lefty (which he is anything but). With that, and with full respect and thanks to Senator Feingold, boy do I wish it was Obama in this video and not Feingold.



(Cross-posted at State of the Day.)

Bill Clinton 2.0

By Creature

Every time I invest even the slightest bit of hope in a politician I usually end up disappointed.

Barack Obama has proved no different.

With Obama's support for the flawed FISA bill still stuck in my craw, he's managed to add so many issues to my list of disappointments that my head, it spins. From his faith-based pander, his boggling rejection of a "mental distress" exception for late-term abortions, to his partial embrace of the death penalty and gun laws, it's clear we have the makings of a conservative in blue-covered clothing.

Welcome to Bill Clinton 2.0.

That being said, while I'm not quite ready to crawl into the comfy news-blackout-bunker I created after Bill disappointed me to no end in the 90s -- leading to me not only abstaining from voting in 1996, but then voting for Ralph Nader in 2000 -- I am ready to fluff the pillows, stock up on Three's Company DVDs, and prepare for my descent back into that information-free bunker. Well, either that or scream like hell and hold Obama's feet to the fire for as long as I must. But, honestly, I'm kind of tired of the screaming.

And, before you play the I-told-you-so card, I still believe Barack Obama's centrism is still light years ahead of Hillary Clinton's -- though, at least with Clinton, my disappointment would have been better anticipated.

(Cross-posted at State of the Day.)

Congress' July 4 recess -- Implications for FISA

By Carol Gee

Congress will be away from Washington for a time to celebrate our nation's birthday. Given the manner this congress has been operating, it is often a good thing for our senators and representatives to be out of the city. Less mischief happens that way. As my regular readers know, much mischief has happened regarding the erosion of citizen privacy over the past few years. And Congress has aided and abetted that assault on the Fourth Amendment. The current fight is over the Foreign Intelligence Surveillance Act, the "FISA" bill set for revision. The best post on the current and future situation regarding the FISA bill, as yet unresolved by Congress, was put up about a week ago by -- guess who -- my favorite, Glenn Greenwald, writing for Salon.com. Another of his excellent posts sets the stage for what is likely to happen to the FISA bill when Congress comes back from its July 4 recess. To quote (includes his links):

UPDATE: Two Democratic Senators actually fighting against the FISA bill -- Russ Feingold and Chris Dodd -- succeeded in blocking a vote in the Senate until after the July 4 recess (the vote is now scheduled for July 8). Jesselyn Radack -- the DOJ lawyer who became the whistleblower concerning the Bush administration's treatment of John Walker Lindh -- writes here about this success. It's only a temporary reprieve, but delays of this sort can enable further opposition to build and/or allow unanticipated events to intervene.

There is a surprisingly vigorous feud among three of my favorites over the future of FISA. Glenn Greenwald and Keith Olbermann are going at it over Senator Barack Obama's unwelcome support for a bad FISA bill. Former White House Counsel John Dean is also in the middle of it. In my opinion, the disagreements are not so much over the back and forth criticisms between Greenwald and Olbermann over Obama's FISA stance, as they are about a general frustration due to the country's inability to stop the FISA bill's apparent momentum to passage. Empty Wheel weighs in with some helpful insight into this whole bizarre controversy. We all want the same things out of Congress on this matter; we just disagree on how to get there. Congress needs to exercise vigorous oversight over a law-breaking Executive. It needs to defend the Constitution. And it needs to stop caving in to the nasty tactics of Republicans.

(Cross-posted at South by Southwest.)

Dodd and Feingold to filibuster FISA capitulation

By Michael J.W. Stickings

Senators Chris Doss and Russ Feingold announced yesterday that they will filibuster the FISA bill (and Harry Reid will support them). This is from their statement:

This is a deeply flawed bill, which does nothing more than offer retroactive immunity by another name. We strongly urge our colleagues to reject this so-called 'compromise' legislation and oppose any efforts to consider this bill in its current form. We will oppose efforts to end debate on this bill as long as it provides retroactive immunity for the telecommunications companies that may have participated in the President's warrantless wiretapping program, and as long as it fails to protect the privacy of law-abiding Americans.

Here are two Democrats who are not willing to capitulate -- unlike some Democrats and almost all Republicans (who of course don't see it as capitulation) -- and who are prepared to stand up for the basic constitutional right of Americans to be free of unwarranted government surveillance and against the corporate enablers of Bush's culture-of-fear-based police state.

Dodd and Feingold are absolutely right -- and they deserve our appreciation, admiration, and support.

(For more from us on the disgusting FISA capitulation, see the very fine posts of Carol, Creature, Fogg, and Libby.)

Not all politicians suck

By Creature

Just to follow-up on my Disappointed post below. If there is a politician that has not disappointed me on FISA (or anything else, for that matter), it would be Russ Feingold. That's it, just giving kudos.

(Cross-posted at State of the Day.)

The walls still have ears

By Capt. Fogg

“It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people,” said Barack Obama yesterday.

Obviously he is less of a polemicist than I am. I would have hoped for his utter objection and opposition to the FISA bill that passed the House of Representatives yesterday, but in his calm fashion, he seems to be far less dogmatic and more practical and dare I say more conservative than I am by saying in essence that this is an improvement because it restores oversight and so he will support it with the pledge that further improvements are to be expected.

A good compromise fully satisfies no one and perhaps, although I loathe the actions of the Bush administration and it's swashbuckling lawlessness, it may be necessary to allow domestic surveillance but subject to legal guidelines: perhaps it may be a good compromise.

Perhaps what Obama shows here is leadership. It takes a stronger man to recognize the objections of people he does not agree with and to accept what practically can be achieved at any given moment rather than to play up to hard core supporters by chest pounding and foot stomping obstinacy that divides and does not achieve much. Sometimes a grudging admiration leads to more respect than unrestrained approbation.

(Cross-posted from Human Voices.)

Disappointed

By Creature

I've known since I decided to back Barack Obama that he would disappoint me. It's an expectation that's built into the deal. Afterall, he's a politician and I am citizen. The two really don't mix. So, I am not surprised that I am disappointed by Obama's support of the constitutionally-flawed, immunity-ridden FISA legislation. However, I do wish Obama would've waited until his presidency before he cashed in on his side of our supporter/politician deal.

(Cross-posted at State of the Day.)

Son of Sam I am

By Creature

Today, the House passed the new FISA bill, complete with immunity for the telecoms. With the Senate sure to follow, I have one question: when I break the law because a voice in my head assured me, with no basis in the law, that what I was about to do was completely legal, I can get off too? Right?

(Cross-posted at State of the Day.)