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It's coming, folks...our elected “representatives” and the telecoms are counting on our national short attention span...they are plotting and planning to take away the Internet by charging even more money for us to use it. The benefits? The telecoms get richer...which they like...and they reward their buddies in the Congress and Senate with kickbacks...which they like. The government gets to deny access of increasing numbers of Us the People to the last, best source of the information we need to make informed choices at the voting booth...which they like. It's no coincidence that our corporate media are full of fluff and nonsense about celebrities rather than the issues that affect all of us. The government knows that we can't have a democracy without an informed citizenry, so keep an eye on what they are trying to do to our information.

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You Know It’s a “No Frills” Airline When The Captain asks all the passengers to chip in a little for gas.

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Torture of Two American Air Travelers

by Several American Airlines

Here's Passenger #1's story.

Here's the code: Airline #1, Airplane #1; Airline #2, Airplane #2; and Airline #3, Airplane #3.

Got to airport early. Checked in. Ticket in hand.

Now follow along; there will be no bouncing ball.

Sat on airplane #1 for 1 hour before deplaning through the back door because the front door wouldn’t close...down the scary stairs with carry-on and rolling luggage in tow and up another flight of scary stairs, just to climb back onto the jetway. Took the short bus to a different terminal to catch plane #2 with airline #2. After several delays, that flight was just plain ol’ canceled.

It sucked to be me.

Another ride on the short bus back to the terminal I started at to catch plane #3 at airline #3, which was boarding at Gate 5.

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I finally figured out what 'Delta' stands for:

Don't Expect Leg room on This Airline.

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Got to Gate early, even while toting carry-on and one wheel sticking on rolling luggage. Finally, Gate 5. But wait! Attention, passengers: Gate 5 has been changed to Gate 32. Aw c**p! Collect stuff and hoof to Gate 32. Whew, that was an exercise. Relax and wait to board the plane. Attention, passengers: Gate 32 has been changed to Gate 8. Gate 8? Gate 8? Gather stuff and hoof back to Gate 8. Finally, a moment to relax. Attention, passengers: Gate 8 has been changed to Gate 28. The weary passengers rise silently and hoof back to 28. But wait! They’re not finished with us yet. Another gate change: Gate 31. Really? Gate 31?

Finally reached Gate 31 and boarded plane #3.

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Before the flight, the passengers get together

and elect a pilot.

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Looking forward to relaxing and breaking into my boxed lunch. As I approach the entrance to the plane, I am greeted by a pungent odor of human waste. I try to hold my breath while not tossing my cookies. Slowly made my way to assigned seat, ready for the flight. Skipped lunch. Smell of human waste lingers in my nostrils.

Plan to sit back, relax, and enjoy the movie. No movie? No movie? Why? Movie equipment was removed to save on fuel. Oh, I get it. We get to sit in silence thinking about the human waste smell.

You want to know what airline, don’t you? Nah, find out for yourself.

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You ask the Captain how often their planes

crash and he sez, "Just once."

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Here is another passenger's experience on an entirely different airline.

Outrageous behavior at the ticket counter by the clerk cost this traveler a day of vacation by NOT getting his questions answered so slowly that he missed his flight and the next. Yes, this clerk actively prevented him from getting on two flights. Instead of answering his questions -- like "can I board the plane?" and "if not, then what are my options?" -- all she would do is cite rules and regulations. Then, she helped two people who'd gotten in line after him. She told him why afterward: "I helped them because they weren't raising their voices at me. I'll only help you if you apologize." That b_tch actively cost him a day of his vacation, which was instead spent in the airport. We are talking a piano tuner here, people...how much can a piano tuner terrorize an airport clerk?

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No movie? Don't need one. Your life keeps

flashing before your eyes.

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The Torture of Jose Padilla

by hilzoy

January 10, 2007

Some stories are hard for me to write about. One appeared last month, and then again last week: the story of the torture of Jose Padilla. Much of the description of his treatment comes from a brief (pdf) filed by Padilla's attorneys last October. I've transcribed the part of the brief that describes Padilla's treatment below the fold, along with some further remarks.

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From the brief:

"In an effort to gain Mr. Padilla’s "dependency and trust," he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla’s torture was stark isolation for a substantial portion of his captivity. For nearly two years -- from June 9, 2002 until March 2, 2004, when the Department of Defense permitted Mr. Padilla to have contact with his lawyers -- Mr. Padilla was in complete isolation. Even after he was permitted contact with counsel, his conditions of confinement remained essentially the same.

He was kept in a unit comprising sixteen individual cells, eight on the upper level and eight on the lower level, where Mr. Padilla’s cell was located. No other cells in the unit were occupied. His cell was electronically monitored twenty-four hours a day, eliminating the need for a guard to patrol his unit. His only contact with another person was when a guard would deliver and retrieve trays of food and when the government desired to interrogate him.

His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation. His tiny cell -- nine feet by seven feet -- had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit. He was not given a clock or a watch and for most of the time of his captivity, he was unaware whether it was day or night, or what time of year or day it was.

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In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep. This sleep deprivation was achieved in a variety of ways. For a substantial period of his captivity, Mr. Padilla’s cell contained only a steel bunk with no mattress. The pain and discomfort of sleeping on a cold, steel bunk made it impossible for him to sleep. Mr. Padilla was not given a mattress until the tail end of his captivity. Mr. Padilla's captors did not solely rely on the inhumane conditions of his living arrangements to deprive him of regular sleep. A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest. One of the tactics his captors employed was the creation of loud noises near and around his cell to interrupt any rest Mr. Padilla could manage on his steel bunk. As Mr. Padilla was attempting to sleep, the cell doors adjacent to his cell would be electronically opened, resulting in a loud clank, only to be immediately slammed shut. Other times, his captors would bang the walls and cell bars creating loud startling noises. These disruptions would occur throughout the night and cease only in the morning, when Mr. Padilla's interrogations would begin.

Efforts to manipulate Mr. Padilla and break his will also took the form of the denial of the few benefits he possessed in his cell. For a long time Mr. Padilla had no reading materials, access to any media, radio or television, and the only thing he possessed in his room was a mirror. The mirror was abruptly taken away, leaving Mr. Padilla with even less sensory stimulus. Also, at different points in his confinement Mr. Padilla would be given some comforts, like a pillow or a sheet, only to have them taken away arbitrarily. He was never given any regular recreation time. Often, when he was brought outside for some exercise, it was done at night, depriving Mr. Padilla of sunlight for many months at a time. The disorientation Mr. Padilla experienced due to not seeing the sun and having no view on the outside world was exacerbated by his captors' practice of turning on extremely bright lights in his cell or imposing complete darkness for durations of twenty-four hours or more.

Mr. Padilla's dehumanization at the hands of his captors also took more sinister forms. Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time. Mr. Padilla was denied even the smallest, and most personal shreds of human dignity by being deprived of showering for weeks at a time, yet having to endure forced grooming at the whim of his captors.

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A substantial quantum of torture endured by Mr. Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds. He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.

In sum, many of the conditions Mr. Padilla experienced were inhumane and caused him great physical and psychological pain and anguish. Other deprivations experienced by Mr. Padilla, taken in isolation, are merely cruel; some, merely petty. However, it is important to recognize that all of the deprivations and assaults recounted above were employed in concert in a calculated manner to cause him maximum anguish. It is also extremely important to note that the torturous acts visited upon Mr. Padilla were done over the course almost the entire three years and seven months of his captivity in the Naval Brig.

For most of one thousand three hundred and seven days, Mr. Padilla was tortured by the United States government without cause or justification. Mr. Padilla’s treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter.

***

Back in December, when the NYT story came out, LizardBreath wrote an excellent post, in which she asked: why are we doing this? I couldn't really bring myself to write an answer at the time, but I think there is an explanation of why we have treated Padilla, the Guantanamo detainees, and other "unlawful combatants" we have in custody the way we have, and it can be found in Joseph Margulies' excellent book Guantanamo and the Abuse of Presidential Power. I'm drawing on Margulies in what follows.

The Mosaic Theory: The purpose of this treatment is interrogation. But it's interrogation motivated not by the hope that a detainee will know all about some dastardly plot and be induced to tell all, although that would be nice. Rather, interrogators operate on what Margulies calls the mosaic theory: the theory that intelligence works by gleaning little tidbits of knowledge from a variety of people, knowledge that the people who have it may not know is in any way important, and putting this together into a coherent picture. Even an unimportant person might have a tiny bit of useful knowledge; and the point of interrogation is to find it.

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Here's an affadavit that Margulies quotes. It's by an FBI agent, Michael Rolince, from 2002, and according to Margulies it was submitted in "scores of proceedings" (p. 22) to justify the preventive detention of people who had violated immigration laws:

"The business of counter-terrorism intelligence gathering in the United States is akin to the construction of a mosaic. At this stage of the investigation, the FBI is gathering and processing thousands of bits and pieces of information that may seem innocuous at first glance. We must analyze all that information, however, to see if it can be fit into a picture that will reveal how the unseen whole operates. The significance of one item of information may frequently depend on knowledge of many other items of information. What may seem trivial to some may appear of great moment to those within the FBI or the intelligence community who have a broader context within which to consider a questioned item or isolated piece of information. At the present stage of this vast investigation, the FBI is gathering and culling information that may corroborate or diminish our current suspicions of the individuals who have been detained. The Bureau is approaching that task with unprecedented resources and a nationwide urgency. In the meantime, the FBI has been unable to rule out the possibility that respondent is somehow linked to, or possesses knowledge of, the terrorist attacks on the World Trade Center and the Pentagon. To protect the public, the FBI must exhaust all avenues of investigation while ensuring the crucial information does not evaporate pending further investigation."

As Margulies points out, this affadavit implies that suspects will be in custody for a very long time. "Thousands of bits and pieces of information that may seem innocuous at first glance" need to be collected and sorted through, and until that process is completed, "all avenues of investigation" exhausted, and the suspect cleared, the suspect cannot be released, lest he and his information "evaporate."

It also implies that useful information can be obtained even from people who have no idea that they know anything of importance, and are not affiliated with any terrorist group: such individuals might have noticed something whose significance is apparent only "to those within the FBI or the intelligence community who have a broader context within which to consider a questioned item or isolated piece of information."

The mosaic theory makes sense to me: of course counterterrorism agents should try to discover as many little bits of knowledge as possible and try to fit them together into a broader picture. But it is also an invitation to abuse: to incarcerating people who might have done nothing wrong, and holding them indefinitely on the off chance that some tiny useful fact of whose existence they are completely unaware might emerge during the millionth round of questioning. It therefore stands in desperate need of some countervailing restrictions on how long people can be kept on the off chance that they might produce a tiny fragment piece of the mosaic, and whether they can be held at all absent any reason to suspect them of a crime.

Needless to say, the Bush administration is not very big on checks and safeguards. It is one of the hallmarks of this administration that it always considers only the possible advantages it can draw from someone's incarceration, and never the costs to that person, to our society, or to the rule of law.

This is how I imagine it all started: after 9/11, the government was operating on this theory, which can be used to justify almost anyone indefinitely. Moreover, they had thrown aside all restraints in the name of protecting the country against future terrorist attacks, and among the restrictions they discarded was anything that might have served as a check on holding people indefinitely. I don't imagine anyone thought that people like Jose Padilla or the Guantanamo detainees would be held forever, but I don't find much evidence that they gave any thought to the question when they would be released and what would happen to them afterwards.

CACI -- Interrogation has been outsourced to CACI, which now has expertise in this matter. Contractors were brought in to provide a law-free environment, sinking from inhumane to sadistic methods.

John Hu and David Addington. Addington is the most important lawyer you never heard of. He picks the talent that works within the judiciary committee on the Republican side.

Dot Calm remarks: I don't think torture is about interrogation or information at all. There are too many expert, veteran officials in our military and intelligence services who attest that the best information comes from non-hostile interrogation. They further attest that torture yields poor intelligence, including a lot of wild-goose-chases in Iraq that have gotten too many of our boys and girls in uniform killed for nothing. Makes sense, doesn't it? If you were being tortured, wouldn't you say the first thing that came into your head? Wouldn't you tell your tormentors whatever you thought they wanted to hear, right or wrong, just to get the pain to stop? That's why I think that torture is about power--the power of insanity and fear. The Bush administration has shown everyone else just how crazy and unpredictable it is. The witnesses in Iraq, America, and anywhere else--anyone that might mess with us--see what happens to the people that the government doesn't like. We see these “enemies of state” being tortured and jailed indefinitely. If that won't keep those uppity peons (at home and abroad) in line, what would?

*****

IRAQ:

“Special Weapons” Have a Fallout on Babies

Inter Press Service News Agency

Saturday, July 05, 2008

by Ali al-Fadhily and Dahr Jamail*

FALLUJAH, Jun 12 (IPS) - Babies born in Fallujah are showing illnesses and deformities on a scale never seen before, doctors and residents say.

The new cases, and the number of deaths among children, have risen after "special weaponry" was used in the two massive bombing campaigns in Fallujah in 2004.

After denying it at first, the Pentagon admitted in November 2005 that white phosphorous, a restricted incendiary weapon, was used a year earlier in Fallujah.

In addition, depleted uranium (DU) munitions, which contain low-level radioactive waste, were used heavily in Fallujah. The Pentagon admits to having used 1,200 tonnes of DU in Iraq thus far.

Many doctors believe DU to be the cause of a severe increase in the incidence of cancer in Iraq, as well as among U.S. veterans who served in the 1991 Gulf War and through the current occupation.

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"We saw all the colors of the rainbow coming out of the exploding American shells and missiles," Ali Sarhan, a 50-year-old teacher who lived through the two U.S. sieges of 2004 told IPS. "I saw bodies that turned into bones and coal right after they were exposed to bombs that we learned later to be phosphorus.

"The most worrying is that many of our women have suffered loss of their babies, and some had babies born with deformations."

"I had two children who had brain damage from birth," 28-year-old Hayfa' Shukur told IPS. "My husband has been detained by the Americans since November 2004 and so I had to take the children around by myself to hospitals and private clinics. They died. I spent all our savings and borrowed a considerable amount of money."

Shukur said doctors told her that it was use of the restricted weapons that caused her children's brain damage and subsequent deaths, "but none of them had the courage to give me a written report."

"Many babies were born with major congenital malformations," a paediatric doctor, speaking on condition of anonymity, told IPS. "These infants include many with heart defects, cleft lip or palate, Down's syndrome, and limb defects."

The doctor added, "I can say all kinds of problems related to toxic pollution took place in Fallujah after the November 2004 massacre."

Many doctors speak of similar cases and a similar pattern. The indications remain anecdotal, in the absence of either a study, or any available official records.

The Fallujah General Hospital administration was unwilling to give any statistics on deformed babies, but one doctor volunteered to speak on condition of anonymity -- for fear of reprisals if seen to be critical of the administration.

"Maternal exposure to toxins and radioactive material can lead to miscarriage and frequent abortions, still birth, and congenital malformation," the doctor told IPS. There have been many such cases, and the government "did not move to contain the damage, or present any assistance to the hospital whatsoever.

"These cases need intensive international efforts that provide the highest and most recent technologies that we will not have here in a hundred years," he added.

The International Committee of the Red Cross (ICRC) expressed concern Mar. 31 about the lack of medical supplies in hospitals in Baghdad and Basra.

"Hospitals have used up stocks of vital medical items, and require further supplies to cope with the influx of wounded patients. Access to water remains a matter of concern in certain areas," the ICRC said in a statement.

A senior Iraqi health ministry official was quoted as saying Feb. 26 that the health sector is under "great pressure," with scores of doctors killed, an exodus of medical personnel, poor medical infrastructure, and shortage of medicines.

"We are experiencing a big shortage of everything," said the official, "We don't have enough specialist doctors and medicines, and most of the medical equipment is outdated.

"We used to get many spinal and head injures, but were unable to do anything as we didn't have enough specialists and medicines," he added. "Intravenous fluid, which is a simple thing, is not available all the time." He said no new hospitals had been built since 1986.

Iraqi Health Minister Salih al-Hassnawi highlighted the shortage of medicines at a press conference in Arbil in the Kurdistan region in the north Feb. 22. "The Iraqi Health Ministry is suffering from an acute shortage of medicines...We have decided to import medicines immediately to meet the needs."

He said the 2008 health budget meant that total expenditure on medicines, medical equipment and ambulances would amount to an average of 22 dollars per citizen.

But this is too late for the unknown number of babies and their families who bore the consequences of the earlier devastation. And it is too little to cover the special needs of babies who survived with deformations.

***

*Ali, the correspondent in Baghdad, works in close collaboration with Dahr Jamail, the U.S.-based specialist writer on Iraq who has reported extensively from Iraq and the Middle East.

*****

A Threat to the Privacy Rights of All Americans:

The Problems with the FISA Bill

by Sen. Russ Feingold

A number of Senators came to the floor prior to the Fourth of July recess to debate the FISA legislation, and more debate has occurred this week. We have heard arguments for and against the legislation, and Senators have cited a variety of reasons for their positions.

Several have defended the bill by arguing that the legislation includes improvements compared to the Senate bill we passed earlier this year. I was not surprised to hear that line of argument. I agree that there are some improvements to the Senate bill contained in the legislation that we are now considering. But those changes are not nearly enough to justify supporting the bill, as I will explain in a few moments.

I was surprised to hear, however, several Senators still defending the legality of the President’s warrantless wiretapping program, and still arguing that Congress had somehow signed off on this program years ago because the Gang of Eight was notified. Mr. President, I thought we were well past these arguments. Two and a half years after this illegal program became public, I cannot believe that we are still debating the legality of this program on the Senate floor, and that anyone seriously believes that merely notifying the Gang of Eight – while keeping the full intelligence committees in the dark -- somehow represents congressional approval.

Mr. President, it could not be clearer that this program broke the law, and this President broke the law. Not only that, but this administration affirmatively misled Congress and the American people about it for years before it finally became public. So if we are going to go back and discuss these issues that I thought had long since been put to rest, let’s cover the full history.

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Here is the part of the story that some seem to have forgotten. In January 2005, eleven months before the New York Times broke the story of the illegal wiretapping program, I asked then-White House Counsel Alberto Gonzales at his confirmation hearing to be Attorney General whether the President had the power to authorize warrantless wiretaps in violation of the criminal law. Neither I nor the vast majority of my colleagues knew it then, but the President had authorized the NSA program three years before, and Mr. Gonzales was directly involved in that issue as White House Counsel. At his confirmation hearing, he first tried to dismiss my question as “hypothetical.” He then testified that “it’s not the policy or the agenda of this President to authorize actions that would be in contravention of our criminal statutes.”

Well, Mr. President, the President’s wiretapping program was in direct contravention of our criminal statutes. Mr. Gonzales knew that, but he wanted the Senate and the American people to think that the President had not acted on the extreme legal theory that the President has the power as Commander in Chief to disobey the criminal laws of this country.

The President, too, misled Congress and the American public. In 2004 and 2005, when Congress was considering the reauthorization of the USA Patriot Act, the President went out of his way to assure us that his administration was getting court orders for wiretaps, all the while knowing full well that his warrantless wiretapping program was ongoing.

Here’s what the President said on April 20, 2004: “Now, by the way, any time you hear the United States government talking about wiretap, it requires –- a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

And again, on July 14, 2004: “The government can’t move on wiretaps or roving wiretaps without getting a court order.”

And listen to what the President said on June 9, 2005: “Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, a federal judge’s permission to track his calls, or a federal judge’s permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S.”

So please, let’s not pretend that the highly classified notification to the Gang of Eight, delivered while the President himself was repeatedly presenting a completely different picture to the public, suggests that Congress somehow acquiesced to this program. As the members of this body well know, several members of the Gang of Eight at the time raised concerns when they were told about this, and several have since said they were not told the full story. And of course all of them were instructed not to share what they had learned with a single other person.

Mr. President, I also cannot leave unanswered the arguments mounted in defense of the legality of the NSA program.

I will not spend much time on the argument that the Authorization for Use of Military Force that Congress passed on September 18, 2001, authorized this program. That argument has been thoroughly discredited. In the AUMF, Congress authorized the President to use military force against those who attacked us on 9/11, a necessary and justified response to the attacks. We did not authorize him to wiretap American citizens on American soil without going through the judicial process that was set up nearly three decades ago precisely to facilitate the domestic surveillance of spies and terrorists.

Senators have also dragged out the same old tired arguments about the President’s supposed inherent executive authority to violate FISA. They argue that a law passed by Congress can’t trump the President’s power under the Constitution. That argument may sound good, but it assumes what it is trying to prove – that the Constitution gives the President the power to authorize warrantless wiretaps in certain cases. You can’t simply say that any claim of executive power prevails over a statute – at least, not if you are serious about the rule of law, and about how to interpret the Constitution. The real question is, when a claim of executive power and a statute arguably conflict, how do you resolve that conflict?

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Fortunately, the Supreme Court has told us how to answer that question. We are talking here about the President acting in direct violation of a criminal statute. That means his power was, as Justice Jackson said in his famous and influential concurrence in the Steel Seizure cases half a century ago, “at its lowest ebb.” In other words, when a President argues that he has the power to violate a specific law, he is on shaky ground. That’s not just my opinion – it’s what the Supreme Court has made clear. No less an authority than the current Chief Justice of the United States, John Roberts, repeatedly recognized in his confirmation hearings that Justice Jackson’s three-part test is the appropriate framework for analyzing questions of executive power. In early 2006, a distinguished group of law professors and former executive branch officials wrote a letter pointing out that “every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute.”

The Senate reports issued when FISA was enacted confirm the understanding that FISA overrode any pre-existing inherent authority of the President. The 1978 Senate Judiciary Committee report stated that FISA “recognizes no inherent power of the president in this area.” And “Congress has declared that this statute, not any claimed presidential power, controls.”

And contrary to what has been said on this floor, no court has ever approved warrantless surveillance in violation of FISA based on some theory of Article II authority. The Truong case that so often gets hauled out to make this argument was a Vietnam-era case based on surveillance that occurred before FISA was enacted, so it could not have decided this issue. And the issue before the FISA Court of Review in 2002 had nothing to do with inherent presidential authorities. Yet these cases are repeatedly cited by supporters of the President, complete with large charts of the supposedly relevant quotations. The fact is that not a single court – not the Supreme Court or any other court – has considered whether, after FISA was enacted, the President nonetheless had the authority to bypass it and authorize warrantless wiretaps.

In fact, Mr. President, as the Senator from Pennsylvania and I discussed on the floor yesterday, just last week a federal district court strongly indicated that were it to reach that issue, it would find that the President must in fact follow FISA. The court was considering whether the state secrets privilege applies to claims brought under the FISA civil liability provisions, and found that it does not. Its reasoning was based on the conclusion that Congress had spoken clearly that it intended FISA and the criminal wiretap laws to be the exclusive means by which electronic surveillance is conducted, and had fully occupied the field in this area, replacing any otherwise applicable common law. Here is what the court said: “Congress appears clearly to have intended to – and did – establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities...”

And a district court in Michigan also has held that the President’s wiretapping program was unconstitutional, although that decision was reversed on procedural grounds by the Sixth Circuit. So to the extent there is any case law that actually addresses this issue, it undercuts the administration’s arguments. It certainly does not support those arguments.

Mr. President, we also have heard that past American presidents have cited executive authority to order warrantless surveillance. But of course those past presidents – Presidents Wilson and Roosevelt are often cited – were acting before the Supreme Court decided in 1967 that our communications are protected by the Fourth Amendment, and before Congress decided in 1978 that the executive branch can no longer unilaterally decide which Americans to wiretap. So those examples are simply not relevant.

In sum, the arguments that the President has inherent executive authority to violate the law are baseless. It’s not even a close case. And the repeated efforts here in the Senate to pretend otherwise are very discouraging.

Mr. President, it may seem that I am going over ancient history because this program is no longer operating outside the law. But this is directly relevant to the current debate. The bill the Senate is considering would grant retroactive immunity to any companies that cooperated with a blatantly illegal program that went on for more than five years – and that the administration repeatedly misled Congress about.

If Congress short-circuits these lawsuits, we will have lost a prime opportunity to finally achieve accountability for these years of law-breaking. That’s why the administration has been fighting so hard for this immunity. It knows that the cases that have been brought directly against the government face much more difficult procedural barriers, and are unlikely to result in rulings on the merits.

These lawsuits may be the last chance to obtain a judicial ruling on the lawfulness of the warrantless wiretapping program. It’s bad enough that Congress abdicated its responsibility to hold the President accountable for breaking the law. Now it is trying to absolve those who allegedly participated in his lawlessness. Mr. President, this body should be condemning this administration for its law-breaking – not letting the companies that allegedly cooperated off the hook.

And this body certainly should not grant the government new, over-expansive surveillance authorities, which brings me to the part of the bill that in some ways concerns me even more than the immunity provision. Let me explain why I am so concerned about the new surveillance powers granted in this bill, and why the modest improvements made to this part of the bill don’t go nearly far enough.

First, the FISA Amendments Act would authorize the government to collect all communications between the U.S. and the rest of the world. That could mean millions upon millions of communications between innocent Americans and their friends, families, or business associates overseas could legally be collected. Parents calling their kids studying abroad, emails to friends serving in Iraq – all of these communications could be collected, with absolutely no suspicion of any wrongdoing, under this legislation.

Second, like the earlier Senate version, this bill fails to effectively prohibit the practice of reverse targeting – namely, wiretapping a person overseas when what the government is really interested in is listening to an American here at home with whom the foreigner is communicating. The bill does have a provision that purports to address this issue. It prohibits intentionally targeting a person outside the U.S. without an individualized court order if, quote, “the purpose” is to target someone reasonably believed to be in the U.S. At best, this prevents the government from targeting a person overseas as a complete pretext for getting information on someone in the U.S. But this language would permit intentional and possibly unconstitutional warrantless surveillance of an American so long as the government has any interest, no matter how small, in the person overseas with whom the American is communicating. The bill does not include language that had the support of the House and the vast majority of the Senate’s Democratic caucus, to require the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S. The administration’s refusal to accept that reasonable restriction on its power is telling.

Third, the bill before us imposes no meaningful consequences if the government initiates surveillance using procedures that have not been approved by the FISA Court, and the FISA Court later finds that those procedures were unlawful. Say, for example, the FISA Court determines that the procedures were not even reasonably designed to wiretap foreigners outside the U.S., rather than Americans here at home. Under the bill, all that illegally obtained information on Americans can be retained and used. Once again, there are no consequences for illegal behavior.

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Now, unlike the Senate bill, this new bill does generally provide for FISA Court review of surveillance procedures before surveillance begins, and that is one of the changes that has been touted by supporters of the bill. But the bill also says that if the Attorney General and Director of National Intelligence certify that they don’t have time to get a court order and that intelligence important to national security may be lost or not timely acquired, then they can go forward without judicial approval. This is a far cry from allowing an exception to FISA Court review in a true emergency, because arguably all intelligence is important to national security and any delay at all might cause some intelligence to be lost. So I am concerned that this ‘exigency’ exception could very well swallow the rule and undermine any presumption of prior judicial approval.

Fourth, this bill doesn’t protect the privacy of Americans whose communications will be collected in vast new quantities. The Administration’s mantra has been: “don’t worry, we have minimization procedures.” But, Mr. President, minimization procedures are nothing more than unchecked executive branch decisions about what information on Americans constitutes “foreign intelligence.” That is why on the Senate floor, I joined with Senator Webb and Senator Tester earlier this year to offer an amendment to provide real protections for the privacy of Americans, while also giving the government the flexibility it needs to wiretap terrorists overseas. This bill relies solely on inadequate minimization procedures to protect innocent Americans. They are simply not enough.

Mr. President, as I said at the outset, some supporters of the bill have pointed to improvements made since the Senate passed its bill earlier this year. I appreciate that changes have been made. But those changes are either inadequate, or they do not go to the core privacy issues raised by this bill. In fact, as the Vice Chairman of the Senate Intelligence Committee said just yesterday, the bill before us is “basically the Senate bill all over again” with only “cosmetic fixes.”

For example, I am pleased that the bill provides for FISA Court review of targeting and minimization procedures. But as I mentioned, there is a potentially gaping loophole allowing the executive branch to go forward with surveillance without court review – an exception that could swallow the rule. The bill also now explicitly directs the FISA Court to consider whether the government’s procedures comply with the Fourth Amendment – but that is an authority it should have had anyway.

The bill includes an Inspector General review of the illegal program, which is a positive change, but it does not make up for the lawsuits that are going to be dismissed as a result of this legislation. And I strongly support the strengthened exclusivity language, which may deter a future administration from engaging in lawless behavior. But let’s not lose sight of the fact that FISA as originally enacted clearly stated that it and the criminal wiretap laws were the exclusive means for conducting electronic surveillance. This was confirmed in the strongest terms possible by a federal district court just last week. Only under the unprecedented legal theories of this administration could that clear language be ignored, requiring Congress to pass language that effectively says – No, we really meant it. And, if this bill is enacted, I am by no means reassured that this Administration, which repeatedly broke the law and misled the public over the past seven years, will now respect the exclusivity of FISA.

Now, the bill does contain a key protection for Americans traveling overseas. It says that if the government wants to intentionally target Americans while they are outside the country, it has to get an individualized FISA court order based on probable cause. That is a great victory, and one we should be proud of. But it does not override the greatly expanded authorities in this bill to collect other types of communications involving Americans.

In sum, these improvements are not enough. They are nowhere close. And so, Mr. President, I must strongly oppose this bill.

When you consider how we got here, this legislation is particularly discouraging. We discovered in late 2005 that the President had authorized an illegal program in blatant violation of a statute, and that Congress and the public had been misled in a variety of ways leading up to this public revelation. Congress, to its credit, held hearings on the program, but was largely stonewalled by the administration for many months until the administration grudgingly agreed to brief the intelligence committees, and more recently the judiciary committees. Nonetheless, the vast majority of the House and Senate have never been told what happened. In 2006, when the Republicans tried to push through legislation to grant massive new surveillance authorities to the executive branch, we stopped it. But now, in a Democratic-controlled Congress, not only did we pass the Protect America Act, but we are now about to extend for more than four years these expansive surveillance powers – and we are about to grant immunity to companies that are alleged to have participated in the administration’s lawlessness.

Mr. President, 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.

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So I hope my colleagues will think long and hard about their votes on this bill, and consider how they, and their constituents, will feel about this vote five, ten or twenty years from now. I am confident that history will not judge this Senate kindly if it endorses this tragic retreat from the principles that have governed government conduct in this sensitive area for 30 years. I urge my colleagues to stand up for the rule of law and defeat this bill.

Russ Feingold represents Wisconsin in the US senate.

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ACLU, EFF will challenge FISA update in court

by Nick Juliano

Wednesday July 9, 2008 -- As the Senate voted to endorse a Bush-administration backed plan to expand its surveillance authority and grant retroactive legal immunity to telecommunications companies that facilitated warrantless wiretapping, the American Civil Liberties Union unveiled plans to challenge the new law in court.

“This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project, in a statement provided to RAW STORY as the Senate was voting. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.”

After defeating three attempts to improve the update to the Foreign Intelligence Surveillance Act, the Senate was expected to President Bush a FISA update Wednesday. Senators approved the FISA update on a 69-28 vote.

After the vote, the Electronic Frontier Foundation, which is representing plaintiffs in lawsuits against the phone companies, also vowed to fight the bill in court, confirming plans outlined last week.

"We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president's illegal surveillance is not over," said EFF Senior Staff Attorney Kurt Opsahl. "Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans' rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future."

For two and a half years, Congress has been deliberating over how to update FISA, which became law in 1978, to account for technological advances in the last three decades. Critics say President Bush simply ignored the law in ordering the National Security Agency to eavesdrop on Americans' conversations with people abroad without first getting warrants from a secret FISA court.

The bill approved Wednesday, which has already passed the House, came despite the strenuous objection of civil liberties and privacy advocates. It legalizes much of the warrantless data-mining and surveillance Bush initially authorized, while essentially guaranteeing legal immunity to telecommunications companies that illegally facilitated the program, critics say.

Sens. Russ Feingold (D-WI) and Chris Dodd (D-CT) co-sponsored an amendment to the FISA bill that would have removed the retroactive immunity provision. It failed, as did two separate attempts to modify the immunity provision.

House Democrats, including Speaker Nancy Pelosi and Majority Leader Steny Hoyer, tried to present the bill as a "compromise," but Feingold, who from his seats on the Judiciary, Intelligence and Foreign Relations committees has probably seen more about the program than anyone, called it a "capitulation."

Nonetheless, once the House passed a FISA bill that came after negotiations with the Senate and White House, it's eventual fate became clear. Civil liberties advocates had succeeded in delaying Wednesday's vote as long as possible, but preparations for the next stage in the fight for oversight have been in the works for some time.

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The Federalist Papers

Federalist No. 13
The Federalist Papers were written and published during the years 1787 and 1788 in several New York State newspapers to persuade New York voters to ratify the proposed constitution. They consist of 85 essays outlining how this new government would operate and why this type of government was the best choice for the United States of America. The essays were signed PUBLIUS. The authors of some papers are under dispute, but the general consensus is that Alexander Hamilton wrote fifty two, James Madison wrote twenty eight, and John Jay contributed the remaining five. The Federalist Papers remain today as an excellent reference for anyone who wants to understand the U.S. Constitution. The following one is attributed to Alexander Hamilton. It is titled “Advantage of the Union in Respect to Economy in Government.”

To the People of the State of New York:

As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. If the States are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. The entire separation of the States into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there would be a greater number. According to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. When the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions.

The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. The more Southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State.

Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground.

If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquility, commerce, revenue, and liberty of every part.

PUBLIUS.