The cover-up is nearly complete. With congressional approval, the Bush administration's warrantless eavesdropping on Americans' overseas phone calls and e-mail for nearly six years will be spared the third-degree treatment by any judge or jury.
At the same time, Bush or his successor would have virtual free rein to continue the massive antiterror surveillance sweeps of communications to and from this country.
Whatever the risk from another terror attack, Americans' privacy would be the assured casualty from these antiterror tactics.
While a secret federal court would have the power to deny warrants, a gaping loophole exists in the new surveillance law approved Friday by the House. Agents would be able to eavesdrop without a warrant in weekly installments. That's a pretty big asterisk on the Fourth Amendment's constitutional protection against unreasonable searches and seizures.
Indeed, Sen. Arlen Specter (R., Pa.) said the new Foreign Intelligence Surveillance Act offered no safeguard against future lawless spying.
It is important to renew the surveillance law before standing warrants expire this summer, but this is not the way to do it.
Congressional Democrats caved to Bush's insistence that the measure shield telecommunications companies from more than 40 privacy lawsuits stemming from the post-9/11 warrantless spying.
Those lawsuits would be tossed now under a FISA provision that merely requires the companies to produce paperwork showing the Bush White House ordered their cooperation. That's as close to blanket immunity as it gets.
The value in pursuing the civil suits was not to punish companies that cooperated in time of national emergency. In fact, the firms should have been shielded from crippling damages.
However, the lawsuits offered the best means to plumb what occurred during the spy program. That avenue would be blocked now, and it's doubtful that reviews ordered by several agencies' inspectors general will provide a better public accounting.
It's incredible to hear Democrats try to justify their capitulation on grounds that they forced Bush to accept an additional $95 billion worth of domestic spending. Unemployment insurance and higher-education benefits for veterans, great stuff. But since when is it right to horse-trade over the cherished, constitutional right to privacy?
There's still time for the Senate to stand up for the Constitution and reject this deal.
Kevin Drum explains why this FISA stuff is so tricky:
At this point we have to engage in a bit of guesswork since the details of the NSA program are classified, but the basic problem is the same as it's always been: NSA's program isn't targeted at particular people or even particular organizations. Nor is it targeted solely at foreign-to-foreign communications since modern communications technology makes it very difficult to be sure where a particular message originates or terminates. Rather, it's based on complex computer algorithms, something that's genuinely uncharted territory.
To repeat something I said a couple of years ago, the nice thing about probable cause and reasonable suspicion and other similar phrases is that they have a long history behind them. There are hundreds of years of statutory definition and case law that define what they mean, and human judges interpret them in ways that most of us understand, even if we disagree about which standard ought to be used for issuing different kinds of wiretap warrants.
But the NSA's domestic spying program doesn't rely on the ordinary human understanding of these phrases. Instead, it appears to rely primarily on software algorithms that determine whether or not a person is acting in a way that merits eavesdropping. The details are still murky, but what the NSA appears to be doing is very large scale data mining on virtually every phone call and email between the United States and overseas, looking for patterns that fit a profile of some kind. Maybe twice or three-times removed links to suspected terrorist phone numbers. Or anyone who makes more than 5% of their calls to Afghanistan. Or people who make a suspiciously large volume of calls on certain dates or from certain mosques. Stuff like that.
Then, if you happen to fit one of these profiles, your phone is tapped and an NSA analyst decides if you're really a terrorist suspect. This apparently happens tens of thousands of times a year and most are washed out. Perhaps a thousand or two thousand a year are still suspicious enough to pass on the FBI, and most of these wash out too. At the end of the year, five or ten are still of enough interest to justify getting a domestic wiretap warrant.
Is this useful? Maybe. But we're not listening in on al-Qaeda's phone calls to America. We're tapping the phones of anyone who fits a hazy and seldom accurate profile that NSA finds vaguely suspicious, a profile that inevitably includes plenty of calls in which one end is a U.S. citizen. But the new FISA bill doesn't require NSA to get a warrant for any of these individuals or groups, it only requires a FISA judge to approve the broad contours of the profiling software. This raises lots of obvious concerns:
The algorithms that determine NSA's profiles are almost certainly extremely complex and technical — far beyond the capability of any lawyer to understand. So who gets to decide which algorithms are legitimate and which ones go too far? NSA's computer programmers?
What happens to the information that's collected on the tens of thousands of people who turn out to be innocent bystanders? Is it kept around forever?
Is this program limited solely to international terrorism? Are you sure? If it works, why not use it to fight drug smuggling, sex slave trafficking, and software piracy?
Since this program was meant to be completely secret, what mechanism prevents eventual abuse? Because programs like this, even if they're started with the best intentions, always get abused eventually.
The oversight on this stuff is inherently weak. After all, no court can seriously evaluate algorithms like this and neither can Congress. They don't have the technical chops. Do the algorithms use ethnic background as one of their parameters? Membership in suspect organizations? Associations with foreigners? Residence in specific neighborhoods? Nobody knows, and no layman can know, because these things most likely emerge from other parameters rather than being used as direct inputs to the algorithm.For all practical purposes, then, the decision about which U.S. citizens to spy on is being vested in a small group of technicians operating in secret and creating criteria that virtually no one else understands.
John Dean suggests to Keith Olbermann that if Obama were elected he could actually have the justice dept investigate the telco's irregardless of immunity from private suits. (vid)
Oh and it looks like a few Dems may put up a fight afterall
Here's an interesting article on Obama's tenure as the president of the Harvard Law Review:
Barack Obama's election as the first black president of the Harvard Law Review in 1990 gave him his first moment of national fame, a powerful intellectual credential and a sweet book deal. It was also his first electoral victory, won in part by convincing the conservative minority of law students that he would treat them fairly.
While Obama's title and his election have become well-known parts of his personal story, the substance of his actual work on the Review, where he spent at least 50 hours a week, has received little attention.
Obama may have had it right back when he was running the journal, and reportedly ended minor disputes with the words, "Just remember, folks, nobody reads it."
The eight dense volumes produced during his time in charge there — 2,083 pages in all — show the Review to have been a decidedly liberal institution, albeit one in transition as its focus on race and gender was contested by both liberals and conservatives. Under his tenure, the Review published calls to expand the powers of women, African-Americans and the elderly to sue for discrimination.
But Obama, who this March referred to "identity politics" as "an enormous distraction," was not so easily pinned down. He published a searing attack on affirmative action by a former Reagan Administration official. And when, in an unusual move, he selected a young woman from a non-Ivy League law school to fill one of the Review's most prestigious slots, she produced an essay focused on individual responsibilities as much as on liberties, which criticized both conservative judges and feminist scholars.
"I was very surprised and honored to receive the invitation, of course, as I was teaching at Maryland Law School at the time, and the Forward typically is extended to more established scholars at 'top' law schools," wrote Robin West, now a professor and associate dean at Georgetown Law Center, in an e-mail to Politico. While other articles are selected by the Review's editors as a group, the Forward is solicited by a smaller band led by the Review president.
West worked closely with Obama on her piece, she said, recalling him as gracious and helpful, if a bit polite, even formal: "He would always ask first about my baby," she recalled.
If the editor and author — a black man and a woman — were an unconventional team for the Review, however, West's article challenged the then-prevailing wisdom in a different way, taking as its touchstone the work of Czech freedom fighter Vaclav Havel and the anti-Communist revolutions in Eastern Europe that were then still underway. Havel had written that the citizen's sense of responsibility — not just of individual rights — was essential to political liberty, and West applied that critique to contemporary liberalism to argue that goals like tolerance and diversity might in fact be "weakened, not strengthened, by taking rights so 'super-seriously' that we come to stop examining our sense of responsibility."
Obama "clearly agreed with me at the time that a shift in constitutional thinking from a rights-based discourse to one that centered [on] responsibility and duties ... would be a good thing," West told Politico. "Partly because of those conversations, I don't find it surprising at all that Sen. Obama's speeches are often marked by calls to spark a sense of responsibility, rather than a sense of grievance."
Calling the U.S. presidential hopeful "the man of the moment," dedicated her Spring-Summer 2009 collection presented Saturday evening to Obama, creating a style she said was designed for "a relaxed man who doesn't need to flex muscles to show he has power."
Rove on Obama:
"Even if you never met him, you know this guy," Rove said, per Christianne Klein. "He's the guy at the country club with the beautiful date, holding a martini and a cigarette that stands against the wall and makes snide comments about everyone who passes by."
Who is Barack Obama?:
With Karl Rove's latest attempt to define Sen. Barack Obama -- this time as an arrogant country club elitist -- it's clear Republicans haven't yet settled on who the man is they are facing in the presidential election.
Sometimes he's part of the country club set, other times he's an outsider with a strange name raised by a hippie mother.
Sometimes he's a Christian with a controversial pastor, other times he's a secretive Muslim.
Sometimes he's the black activist who resents white people, other times he's the Ivy league lawyer who doesn't understand the working man.
Sometimes he's naive to the ways of Washington, other times he's politically ruthless and overly ambitious.
Though Sen. John McCain wrapped up the Republican nomination early, he's made almost no progress in defining his opponent. In fact, many of the attempts actually contradict each other. It's the biggest failure so far of McCain's campaign.
This guy may end up being McCain's VP (since he's not allowed to pick anyone he really wants)
Obama's blunt denials of being a Muslim are rubbing actual Muslims the wrong way
TPM examines the candidates' flip flops (vid)
Roger Cohen, "liberal" columninst, argues that McCain's flip flops matter less because he was a POW. (with liberals like that, who needs conservatives! ba-da--bum!)
Gitmo trials loom over election:
On May 9, five men currently incarcerated at the Guantanamo Bay detention center were charged in connection with the 9/11 terror attacks. Under the Military Commissions Act of 2006, which authorizes that detainee trials begin within 120 days, they could end up in a courtroom in September – almost to the day of the seventh anniversary of the attacks and right as voters start to tune in for the presidential election homestretch.
It's the kind of high-profile event that in the past might have boded very badly for a Democratic nominee saddled with longstanding baggage about the party's credentials on national security. Yet in a reflection of shifting party fortunes on the issue of the war on terrorism, there's considerable debate about whether John McCain or Barack Obama – or neither – stands to benefit from a September courtroom drama, especially if it involves Khalid Sheikh Mohammed, the so-called mastermind of the 9/11 attacks.
Charlie Cook sez Obama wus right to drop public financing (because the opposite choice would have made him look worse)
Theda Skocpol sez Obama wus right to drop public financing (because he's operating within the spirit of a public campaign)
Here's a good recap of McCain's gaming of public financing, and why the DNC is filing suit over it
Josh Marshall wonders why Dems aren't hitting McCain harder on this issue
Dorothy Wickenden on Obama:
Obama promises to tell voters what they need to know and not what they want to know. It's a risky strategy, and one he doesn't always follow, but when he put it into effect in April, by attacking McCain's proposed summer gasoline-tax holiday, he helped his campaign more than he hurt it. Last week, he denounced McCain's latest reversal, on offshore drilling. But he needs to go further. A year ago, he likened "the tyranny of oil" to that of Fascism and Communism, saying, "The very resource that has fueled our way of life over the last hundred years now threatens to destroy it if our generation does not act now and act boldly." This is the kind of unequivocal message that Obama needs to develop. By telling just such inconvenient truths, Al Gore has inspired a worldwide movement to arrest climate change. The next President could be its most powerful leader. Obama will not rouse voters by getting lost in a tussle with McCain over the virtues of cellulosic ethanol. He can, however, make voters part of the solution by helping them understand that the greedy oil companies, the failing auto industry, and the craven Congress will not redeem themselves until consumers demand that they do so by making some inconvenient changes of their own. A little more audacity will yield a lot more hope.
Michelle Obama's US Weekly cover was a hit
Dobson accuses Obama of distorting the Bible (he's talking about the chapter on faith and politics in his book TAoH)
Expect VP picks to be announced around the first week of August
Why they will
Sources at the meeting said that Rep. Sheila Jackson Lee, D-Texas, a Clinton supporter, expressed the desire that Obama and his campaign would reach out the millions of women still aggrieved about what happened in the campaign and still disappointed that Clinton lost.
Obama agreed that a lot of work needs to be done to heal the Democratic Party, and that he hoped the Clinton supporters in the room would help as much as possible.
According to Rep. Yvette Clarke, D-N.Y., Obama then said, "However, I need to make a decision in the next few months as to how I manage that since I'm running against John McCain, which takes a lot of time. If women take a moment to realize that on every issue important to women, John McCain is not in their corner, that would help them get over it."
Rep. Diane Watson, D-Calif., a longtime Clinton supporter, did not like those last three words -- "Get over it." She found them dismissive, off-putting.
"Don't use that terminology," Watson told Obama.
Clarke did not react the same way.
"I, personally, as a Hillary supporter, did not take that as something distasteful," Clarke said. "Nothing like that."
But, Clarke said, Watson "latched on to those three words."
In Clarke's view, Watson thought Obama had just told her to "get over it." She didn't appreciate that, and she told him so
Obama trying to boost black turnout without offputting whites
The good people that brought you "Unfit for Command," about John Kerry, are working on a new book about Obama.
Jerry Seinfeld pays tribute to George Carlin (R.I.P.)